Last Saturday I was in Oxford to deliver the Blackstone lecture at Pembroke College. I chose to focus on whether Britain should remain part of the European Court of Human Rights. My answer – particularly in the light of the terrorist attacks in Paris and across the rest of the world – is a clear and unequivocal yes.
Below you can read my full argument, which I hope you find interesting.
Last Friday the people of Paris were going about their business: out to enjoy a concert, watching their team take on Germany in a friendly, filling the city’s bars and restaurants.
At 9.20 pm the first blow struck.
A man wearing a suicide belt, prevented from entering the Stade de France after a routine security check, backed away from the security guards and detonated the explosive belt he was wearing.
Ten minutes later another man outside another entrance did just the same.
They had both hoped to get into the stadium.
By 9.30 pm both terrorists and a number of passers by were already dead.
At the same time a second terrorist team opened fire on Le Carillon bar in the tenth arrondissement. One of the team crossed the road and attacked at Le Petit Cambodge. Fifteen people died in these two attacks: fifteen more were severely wounded.
The team began a tour of restaurants, spraying bullets at anyone they encountered.
Then – just twenty minutes after the first explosion, the worst outrage of the night.
The Bataclan hall was hosting the American rock group: Eagles of Death Metal. It was a sell-out concert and the 1,500 seater hall was packed. At first the crowd thought the automatic weapons firing were part of the act. We now know how tragically mistaken they were.
Within the space of less than an hour at least 129 people were dead. More than 400 were wounded: many in a critical condition.
In the aftermath, leaders across the world have recognised the tragic events as an attack on our values and have emphasised that we should stand united not divided.
President Obama said: “It’s an attack not just on the people of France. But this is an attack on all of humanity and the universal values we share.”
Pope Frances spoke for us all: “I am moved and I am saddened” he said. “I do not understand, these things are hard to understand…. there is no religious or human justification for it.”
The attacks also drew yesterday’s rivals together.
Russian President, Vladimir Putin, offered the French people his country’s support and co-operation: “It’s clear that real joint efforts of the entire international community are necessary to effectively fight this evil,” he told President Hollande.
For a moment at least the world is united in revulsion.
Sadly Paris is only the latest in a number of attacks. In recent weeks Islamic State of Iraq and the Levant or ISIS – as it calls itself – perhaps better described as Da’esh, has hit targets in Beirut, Sinai and elsewhere. Together these atrocities have cost the lives of some 600 people.
Earlier this year we saw attacks on the beaches of Tunisia and a mosque in Kuwait.
And just yesterday, a gunman entered the Radisson Blu Hotel in the Malian capital, Bamako, a hotel popular with foreign businesses and aircrews, and took 170 people hostage. At least 21 people were killed.
David Cameron has told us that Britain has foiled no fewer than seven attacks this year.
This is a threat that knows no boundaries.
President Obama is right. These attacks are an attack on our values.
ISIS has made no secret of its intentions: “Let France and those who walk in its path know that they will remain on the top of the list of targets of the Islamic State” they declared in a statement claiming responsibility for the attacks on Paris.
Our response will define us.
In response to an attack on our values, we must stand by our values: liberalism, free speech, equality and secularism.
Values we have treasured for a very long time. Values that we have fought for in the Second World War and which have defined us ever since.
That moment, at the end of the Second World War, when we reasserted our values was a defining moment in the development of international human rights.
Of course human rights of one sort or another long preceded that moment and took form in some international and national texts, but in the aftermath of the Second World War, the world came together and, in recognition of the Nazi horrors both before and during the Second World War, vowed never again to allow atrocities like those of that conflict to happen again.
These high ideals underpinned the United Nations and were the driving force for a drafting committee chaired by Eleanor Roosevelt and charged with preparing a Universal Declaration of Human Rights (UDHR).
Those who prepared the draft document were drawn from different legal and cultural backgrounds from all regions of the world, including representatives from China, Lebanon, Egypt, India and Iran. Their task was to agree truly international and universal norms.
The rights they set out in the UDHR became the cornerstone of the United Nations. They were adopted on 16 December 1948.
And is it not a tragic irony that the Declaration - the antithesis of everything that groups like ISIS now represent - was signed in Paris?
For the first time in history, the international community embraced a document considered to have universal value - "a common standard of achievement for all peoples and all nations".
The preamble recognises the inherent ‘dignity’ and ‘equal and inalienable rights of all members of the human family’ as ‘the foundation of freedom, justice and peace in the world’.
They are the values President Obama and others invoked last week in the aftermath of the Paris atrocities.
Regional treaties, such as the European Convention on Human Rights (ECHR) and, subsequently, the American Convention on Human Rights and the African Charter on Human and People’s Rights, were intended to give regional effect to the UDHR. Regional entrenchment of our shared values.
British politicians participated in the drafting of the ECHR in Whitehall because they thought that they were drafting an instrument to reflect the values which we in this country took for granted and which had, they thought, been vindicated by our military triumph. They wanted what they thought were our values to be more widely respected.
Our values in 1948.
Our values now in 2015.
But not just our values.
Delivering the State of the Union address before Congress on 6 January 1941, just 11 months before the United States declared war on Japan, President Franklin Roosevelt, delivering the so-called Four Freedoms Speech in which he said:
“In the future days, which we seek to make secure” he said “we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression – everywhere in the world. The second is freedom of every person to worship God in his own way - everywhere in the world. The third is freedom from want – which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants - everywhere in the world. The fourth is freedom from fear - which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbour - anywhere in the world. That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation.”
The rights in the UDHR, regional instruments such as the ECHR, and other international treaties are accordingly very simple.
They include the right to life, liberty and security of person. The right to a fair trial. Protection from torture and ill-treatment. Freedom of thought, conscience, religion, speech and assembly. The right to marry. The right to free elections. The right to fair access to the country’s education system. And, to top things off, the right not to be discriminated against.
A simple set of minimum standards of decency for humankind to cling onto going forward.
As the late Lord Bingham asked in a keynote speech in 2009: “Which of these rights ... would we wish to discard? Are they trivial, superfluous, unnecessary? Are any of them un-British?”. He gave his own answer: “There may be those who would like to live in a country where those rights are not protected, but I am not of their number”. I would give the same answer.
But in that moment at the end of the Second World War, the world recognised that simply articulating fundamental rights, though necessary, was not enough.
There had to be a commitment by each signing state to ensure these rights to its people and a commitment to account for breaches internationally.
Accordingly Articles 1 and 46 are among the most important provisions in the ECHR.
Article 1 reads:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”
Article 46 reads:
“(1) The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”.
The rights in the UDHR and the ECHR have, of course, been further defined in other instruments promulgated by the UN and the Council of Europe: an issue to which I will return.
All of these instruments have similar provisions requiring domestic enforcement of the rights in question and international accountability for breaching them.
Both the rights set out in the ECHR and the enforcement framework are therefore truly ‘universal’ and not some European import.
The UK accepted the international obligation to protect the basic rights in the ECHR in 1953 (61 years ago) when the Convention came into force. But it took us another 47 years to turn those international obligations into rights which could be enforced directly in our courts via the Human Rights Act 1998 (HRA). A constitutional moment if ever there was one.
Against that background, it is perhaps surprising that the fate of the HRA is, yet again, a hot political issue.
The Conservative Manifesto of May 2015 promised to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain.”
In a more detailed section, the manifesto continued:
“We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
Having won the election, speculation about how those manifesto commitments will be fulfilled is rife.
The latest trails suggest that a consultation is coming very soon.
Time will tell.
But when a country such as ours sets out to distance itself from universal standards which it helped to devise and an enforcement mechanism it helped to craft, the arguments for doing do require very close scrutiny.
Those arguments appear to me to be three-fold:
- First, that the HRA is no more than a villains’ charter;
- Second, that, but for the HRA, the executive could act with unfettered discretion when removing foreigners from the UK; and
- Third, that our courts are now shackled because they are somehow bound to follow the decisions of the European Court of Human Rights.
I will deal with each in turn.
A victims’ charter not a villains’ charter
Although some defendants have been able to rely on the HRA to their advantage in criminal cases, by and large, the impact of this has been no more than a tweaking of our current rules and approach.
There has been no fundamental shift in defendants’ rights and most of the HRA challenges brought by defendants in our courts have failed. Those that have been successful have usually involved issues that many would regard as fundamental to our justice system such as overturning indefinite detention of foreign terror suspects without charge or trial and the ending of the automatic removal of toddlers from their mothers in prison.
The absence of more far reaching changes is largely due to the fact that major legislative schemes such as the Police and Criminal Evidence Act, passed by the Thatcher government in 1984, set out clear rights for suspects that have been successfully embedded in our law for many years.
By way of stark contrast, the HRA has heralded a new approach to victims’ rights.
Before the HRA, individuals in the UK did not have the right to an effective investigation into serious allegations of criminal wrong doing. Even where the police clearly and obviously failed to protect victims or to investigate properly, the common law offered nothing.
The ‘positive obligation’ to protect life and limb found in the HRA changed all that.
Often after many years of struggling to be heard, victims now have a right to have serious allegations taken seriously and to be protected and supported by the police whether they have died in the hands of the state or have been abused by other individuals.
Child victims of trafficking, women subjected to sexual violence, prisoners who have died in custody, and those with vulnerabilities that inhibit reporting of abuse have all benefited from this fundamental change in emphasis. And the families of British soldiers have been able to secure inquests into their deaths outside the battlefield in cases where inadequate care or protection may be involved.
The HRA has also changed the approach in the prosecutor’s office. Victims can now challenge decisions of the Crown Prosecution Service not to bring charges in their case relying on the HRA. And that has led not only to better decision-making but more generally to much better policy-making in the CPS.
The impact in court has also been dramatic. Victims, once voiceless in the process, can now argue that court practices and procedures should be adapted to take into account their rights and interests. Protective measures for victims are one example, but there are others, including the right to have some degree of control over the disclosure of sensitive medical notes and/or to be provided with adequate information by the police and prosecutors.
There are important and welcome developments. It is often thought that civil liberties and human rights are two sides of the same coin. But this can be misleading. Civil liberties protect the individual from the state by restricting the circumstances in which the state can interfere in the affairs of its citizens. Human rights, in contrast, not only protect the individual from the state but also oblige the state, in carefully defined circumstances, to take positive steps to protect its citizens (or in fact anyone within its jurisdiction, such as trafficked children).
This distinction is important. Positive obligations are the source of victims’ rights. The HRA entrenches positive obligations in our law and hence it entrenches victims’ rights. In the pre-HRA days, a civil liberties approach and the common law struggled to achieve this. Those who advocate the repeal or replacement of the HRA risk turning the clock back on this important development in victims’ rights or, at the very least, impeding its progress.
Unfettered executive action?
Some would have us believe that repealing the HRA and/or withdrawing from the European Convention on Human Rights (ECHR) would free up the government to remove foreigners from the UK at will, notwithstanding any threat they face of death, torture or ill treatment, or serious impact upon children left behind.
But that argument simply does not withstand scrutiny.
As a leading light in the UN, the UK has long recognised the importance of the international obligations spawned by the UDHR which bind like-minded states together for the collective good of all.
That is why the Thatcher government ratified the UN Convention against Torture (UNCAT) as long ago as December 1988. UNCAT prohibits the removal of foreigners at risk of ill-treatment in pretty well the same terms as the European Convention on Human Rights, it is frequently cited in our courts and 155 state parties have now accepted its terms.
The same sense of international legal order led the government headed by John Major to ratify the UN Convention on the Rights of the Child (UNCRC) in 1991. It puts the rights of children at the centre of decision making even in controversial cases involving the removal of foreigners from the UK. If anything, it goes further than the European Convention on Human Rights in this regard. It too is frequently cited in our courts and has near unanimous international support.
Unless David Cameron is prepared to renounce these core UN commitments entered into by his predecessors, those who want to move away from the ECHR have a problem.
We either comply with the obligations in UNCAT and the UNCRC that we have signed up to. In which case, why repeal the HRA?
Or we face the prospect of the UK being in constant breach of fundamental UN human rights obligations. That is, to say the least, unedifying and fundamentally at odds with the frequent FCO declaration that “Human rights, democracy and the rule of law are at the heart of the government’s foreign policy”.
Relations with Strasbourg
The HRA simply requires our courts to ‘take into account’ the decisions of the Strasbourg court. It does not require them to apply or follow those decisions. As the former Labour Lord Chancellor, Lord Irvine, has argued, the language is clear and unambiguous. Judges are not bound to follow the Strasbourg court: they must decide the case for themselves.
Parliamentary and legislative history bear this out. When introducing the Human Rights Bill in Parliament, Lord Irvine made clear that it would “allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe’.
A sentiment echoed by the late Lord Bingham when he said, “it seems to me highly desirable that we in the United Kingdom should help mould the law by which we are governed in this area ... British judges have a significant contribution to make to the development of the law of human rights”. As he rightly pointed out, it is a contribution which, before the HRA, British judges were not permitted to make.
So when some argue that they want to make our courts 'supreme' again, this is both misleading and mischievous. Our courts are not fettered, but nor have they ever been sovereign. Under our system of Parliamentary democracy, carefully maintained by the HRA, only Parliament is supreme.
The reality is that our courts have now developed their own human rights jurisprudence and that, in turn, is now influencing the European Court of Human Rights in Strasbourg. That is what was intended when the HRA was introduced.
And the argument should not become fixated on what happens in court. Although practice is uneven, an inquiry by the Equality and Human Rights Commission demonstrated that the HRA has quietly but effectively influenced the everyday practice and procedure of a range of public authorities from the police to social workers, care homes to mental health hospitals. These are developments which we should all be proud of.
So let me attempt to pull these strands together.
The tragic events in Paris this past week or so remind us that our values are under attack.
We must meet that attack with our values in the vanguard.
As the Prime Minister recognised in his foreword to the counter-extremism strategy published in October:
“Over generations we in Britain have built something extraordinary: a successful multi-racial, multi-faith democracy ... our success is underpinned by our distinct, British values - the liberties we cherish, the rights we enjoy and the democratic institutions that help protect them.”
Our freedoms have been hard won and throughout our long history, we have come together to defeat those who seek to undermine them, to threaten our values and our way of life.
Those values were most clearly articulated in the aftermath of the Second World War.
Britain played a key part in giving practical effect to those values in drawing up universal human rights standards and insisting on an enforcement framework which required states to give domestic effect to fundamental rights and to account for breaches to the international community.
These are important principles.
Britain has kept to its commitments.
The HRA gives effect to Article 1 ECHR.
Our submission to the jurisdiction of the European Court of Human Rights (ECtHR) gives effect to Article 46 ECHR.
The HRA has been a force for good, particularly for the most vulnerable.
And distancing ourselves from the ECHR and the European Court of Human Rights does not release us from other binding obligations under the UNCAT and UNCRC.
As we pull together in solidarity with the people of Paris and of France; as we reaffirm our values; and when we need to stand firm as an international community, now is not the time to push for repeal of the HRA.
Now is the time to stand together for what we believe in – our values, our freedoms and our commitment to internationally enforceable human rights.