Thank you for inviting me to come along here this morning to participate in your conference and in particular in the launch of the essay collection on Conservatism and human rights. I have to say, when I first heard that Bright Blue was doing this, I was absolutely overjoyed because from my point of view, I’ve felt slightly, in the course of the last eighteen months, that I’m in danger of turning into one of those CDs which has got caught with a scratch and just going on and on and on about the same theme. As I once said to one of my colleagues in the Cabinet, it would be very nice to get a life again. This was because of course I parted company with the Prime Minister over the issue of adherence to the European Convention on Human Rights and the Government’s proposals in respect of a bill of rights.
What excited me so much of seeing the papers written in Conservatism and Human Rights in the essay collection was this was really breaking new ground, booking new topics and perhaps, dare I suggested, getting away from an argument that I sometimes fear is in danger of becoming a little bit sterile. What I wanted to do this morning, then, at the risk of going over an old argument, was just to touch a little bit on this fundamental issue of our relationship with the European Convention because I think it’s rather important in the way it colours everything else that we might be doing including this work being done by Bright Blue in looking at other areas of discrimination or indeed of human rights more generally.
The first thing I think we have to remember particularly as this is a think tank rooted in liberal conservatism is that traditions of liberty run really deep in conservative philosophical thinking. It isn’t difficult, if you go along to what I would describe as a very traditional conservative audience, to start getting them quite misty-eyed if you start talking about the traditional liberties, starting with Magna Carta, Habeas Corpus, and the Bill of Rights of 1689. They are, indeed, rooted in our DNA, and I think a little further than that, rooted in a tradition of English … I say, “English” with some diffidence, but I think one has to accept it starts with England, of English exceptionalism, a view that within the land and territory in which we live, there are fundamental values reflected in our political system and in the rights and liberties of the individual which we may have exported elsewhere but are very much our own creation.
I’m always mindful that there are other extraordinary treaties written in the middle of the fifteenth century by Chief Justice Fortescue who wrote a book for the son of King Henry VI, who was subsequently, I might add, murdered after the Battle of Tewkesbury, which was a manual of government that he’d seen. It was called De laudibus legum Angliae, in praise of the laws of England. Rather remarkably, if you go to this treatise, you will find a denunciation of torture and the fact that it is alien to our common law. You will find in it a praise of due process of law, a praise of limited government, pointing out that the King of England, unlike foreign kings, is not able to do whatever he wants because he is a political … he governs a body politic, which can control his actions and, I think in a way, most remarkably, you see his statements about trial by jury, which he says is an excellent principle for the protection of the individual. He goes on, rather remarkably, to say that he would rather see twenty guilty men acquitted than one innocent person wrongfully condemned.
That tradition runs through the conflict between king and parliament in the seventeenth century, the petition of right, Lord Mansfield’s judgement in Somerset’s case, sometimes seen on slavery, sometimes seen as being a great model of liberalism, but actually it was approached from a thoroughly conservative angle. He just said there can’t be slaves in this country because there never have been, and the law of the common law does not allow it; and of course on through the nineteenth and twentieth century to the aftermath of the second world war. In the aftermath of the second world war, we did do something very different. When Eleanor Roosevelt came along and said that she wanted a Magna Carta for the twentieth century, we concluded, along with our European partners that had survived the second world war and were free countries rather than under communist tyranny, that we were going to try to actually crystallise what was an aspirational document, the UN Charter, into a document that really conferred rights, which was the creation of the European Convention on Human Rights.
Not surprisingly, at the time we did it, there was a lot of controversy about whether it was right that we should do it or not. There was a wonderful Foreign Office memo which says “to allow governments to become the objects of such potentially vague charges by individuals is to invite communist crooks and cranks of every type to bring actions.” A lot of anxiety that it was loosely worded. A lot of anxiety that it would be open to judicial interpretation by, of course, ultimately, an extraterritorial court. We eventually signed up and, indeed, its greatest proponent was David Maxwell Fyfe, who was both a Conservative Attorney General and subsequently a Conservative Lord Chancellor. Why did we do that? I think we did it because as well as our national tradition of exceptionalism, the United Kingdom in the two hundred years leading up to the second world war had become totally enmeshed in the international system.
We were a trading nation and even at the height of our imperial power, we had a keen understanding that our own country was very small by global standards and that its power depended as much on trying to change people’s behaviour as all asserting power over them. I once asked the Foreign Office if they could tell me how many treaties the United Kingdom is adherent to. They got into a terrible state about this and they all disappeared down into the bowels of the Foreign Office and they came back and they said they were very reluctant to go back beyond 1834 because their records might not be accurate. Since then, their figure was 13,200 treaties that the United Kingdom had signed and ratified, and perhaps more tellingly, over 700 had an arbitral mechanism for resolving disputes over interpretation.
Of course these range from the UN. charter, the International Convention for the Law of the Sea, the European Convention on Human Rights, dare I say, I won’t dwell any further about it or our treaties of accession to the European Union and the European Court of Justice in Luxembourg, but that’s about all I’m going to say on that aspect of Europe. Why are we signed up to all these treaties? We signed up because we believed that it was important to create a mesh of mutual obligations which raised the standards of behaviour, not just for ourselves but for other people.
Over the years, those standards of behaviour have shifted. They’re not just about how one state behaves toward another state but, as was shown in the UN. Convention and in the European Convention on Human Rights, how a state behaves towards its own citizens, a critical change from the Westphalian model, which said that ultimately what a state does to its own citizens is entirely a matter for itself. President Putin in a sense establishes in his intervention in Syria, which is the Syrian Government is responsible for its own citizens and he just goes there to pursue his own foreign policy, regardless of its implications.
My view is that, one then has to look at how the convention has worked since. Sixty five years on, it does seem to me that the convention has been a remarkably successful document, indeed so successful that when the Conservative Party published its paper suggesting that we should leave it, it had to acknowledge … and I think I’ve got the quote right, that it was an entirely sensible statement of principle that should underpin a democratic nation. Unfortunately, we as a party have then gone on to accuse the court in Strasbourg of subverting the intentions of the draftsmen and because of that, that is our principle argument why we might want to pull out.
As you’ll be aware, the only paper we’ve seen so far on the subject published in October 2014 … we still wait for the famous bill of rights, that document that is due out at some point but not until well after the referendum, I suspect, is that they want to clarify rights, particularly under article three and eight, that’s torture and right to private and family life, and confine it to serious matters that should be determined by parliament as to that threshold, and potentially break the link with the Court of Human Rights in Strasbourg altogether and have a wholly, home-grown, national bill of rights, I suppose in keeping with that English exceptionalism which I touched on at the start of my talk.
I think that that is a mistaken approach. I’m reassured that even Michael Gove may think it’s a mistaken approach because he’s rather rowed back on it, although he still told the parliamentary committee that he wasn’t 100% sure that we might not have to withdraw from the convention. My reason for thinking that the party is mistaken is that, of all its faults, it does seem to me that the convention has stood the test of time. Not only has it stood the test of time but it has been the most powerful and effective lever for promoting human rights on our planet. I haven’t got time this morning to run through a lengthy list, but it is perhaps just worthwhile highlighting a couple of cases. Just consider, back in the early seventies the court removed the rights to discriminate against children on the grounds of their legitimacy.
Dudgeon in the United Kingdom, on homosexuality in Northern Ireland, the judgement, of course, which was far more important outside of Northern Ireland than in other countries, particularly in Eastern European after they signed the convention. After all, in England and Wales, we had decriminalised homosexuality some time before. More recently, in Russian, establishing the principle that people trafficking is a form of slavery and, therefore, not only is it something which must be criminalised, but there must be a positive duty on the state to try to suppress it in exactly the same way as we did with slavery in the late eighteenth and nineteenth century.
Of course, all these things and developments highlight the fact that the convention is, to quote its detractors, who seem to use this term rather frequently, a living instrument. If it wasn’t a living instrument then none of the judgments I’ve just given you would ever have been able to take place because the standards to be applied to the convention would have been the standards of 1950, when discrimination on the grounds of illegitimacy, criminalization of homosexuality were perfectly permissible and people trafficking didn’t exist as a phenomenon at all. What’s happened in each of those cases is that the Court of Human Rights has been able to interpret the Convention in light of current social standards and circumstances. This appears to be something which comes in for a lot of criticism from some traditionalists, but I have to say that without it, it’s very difficult to see how, in fact, the law could be made to work at all.
When we look at this, we might also want to consider the cross-fertilization that has taken place between the court in Strasbourg and our own courts. It shows that, in fact, the working together of two different traditions of jurisprudence can be very effective. Take most recently the question of hearsay in criminal cases. There was a case called al-Khawaja in Strasbourg, which suggested that our hearsay rules might be unacceptable. We then countered with another judgment in a case called Horncastle and we persuaded the court in Strasbourg to change its view. Of course, sometimes the Strasbourg court simply comes to a conclusion which is different with our own court altogether, but the examples are not necessarily all one way. We may get credit for the need, I claim, of the court’s decision on prisoner voting as being an excessive interpretation of the convention, of not giving the United Kingdom a sufficient margin of appreciation in order to make up its own rules.
I have to say that in the last five years, I have never had a single complaint about the decision of the Strasbourg court to condemn the United Kingdom for its blanket policy on DNA and fingerprint retention in S and Marper, notwithstanding the fact that the House of Lords had signed it off as being completely acceptable. That’s not to say that all is perfect with the Strasbourg court. I don’t think it is. It’s a court that has grown from an idea that it might handle a half a dozen cases a year to one which, at its worse point five years ago, had a backlog of 150,000 cases. The court was drowning under the impact particularly of the arrival of states in Eastern Europe with no rule of law tradition at all.
In fact, it has succeeded partly because of the work of Ken Clarke when he achieved the Brighton Declaration in 2012, in entirely transforming itself, reducing its backlog now to 60,000 cases and with the insertion of the preamble into the text of the convention, asking the court, reminding it to allow national courts and parliaments … that it is national courts and parliaments who are primary applicants of the convention and not the court itself, which is the longstop. There’s a remarkable change, I think, which has been taking place in the way in which the court approaches its workload. Previously, it had probably been micromanaging a bit too much, partly because of its deep concern about the Eastern European countries which had joined and where the rule of law appeared to be so fragile. As a consequence of that, we get cases like that on political advertising, where interestingly enough, the animal defenders, the court agreed that the United Kingdom’s interpretation of freedom of expression to limit the right to political advertising was completely acceptable, even though when it had first considered it, it thought that it was not because it was an excessive restriction.
Then, we just have to consider what’s going on elsewhere. I always find myself a bit worried when I discuss human rights issues. It seems to me there’s a little bit too much of the, ‘me, me, me’ going on, and it becomes an entirely introverted discussion about the United Kingdom or even, for that matter, just England. We ought to consider whether the convention’s working. We also have to look at what it’s doing elsewhere. We don’t live in a bubble. At the moment, just to give you an idea, in the course of its history, 2,400 of the judgments of the Court of Human Rights have been against Turkey. Forty three percent of all cases on the freedom of expression have concerned Turkey, which have gone before the court.
In a moment, you won’t be surprised to learn that a lot of its workload concerns countries like Russia and the Ukraine, and indeed, Georgia, Azerbaijan. The public defender in Georgia told me … he’s a sort of ombudsman. He said as far as he’s concerned, he could not do his job without the convention because ultimately, even though the rule of law was very fragile in his country, the Georgian Government believed in its membership in the Council of Europe, saw it as an important statement both of the intent and status, and would therefore comply with judgments. That was the only way in which he was able to get redress for the citizens who came to him with violations of human rights, usually by state actors, often the police or other public authorities.
Nor, I think, is the suggestion that the convention is now worthless because there’s a failure of implementation decisions. I don’t think that stands up to scrutiny either. It’s true there’s a backlog of about 11,000 cases which haven’t been implemented. Russia … Italy is the worst culprit, but that’s because of the length of time it takes to get its cases heard. Actually, in terms of egregious breaches, it’s undoubtedly the Russians, and I regret to say that at the moment, the time it takes to get a decision implemented against the Russians is about ten years, but they do eventually pay off damages to the people whose rights have been violated.
Other countries like Poland, Hungary, Romania, and Bulgaria also had poor records but the evidence is overwhelming that the convention is working to improve their systems. Of course, it’s not just convention states that benefit from the existence of a convention. Take that great popular bugbear of the Daily Mail, Mr. Abu Qatada, something which is likely to make the hackles rise on the napes of the neck of the average Conservative voter. Mr. Qatada, as you recall, we eventually deported to Jordan. The Daily Mail thought it took far too long and cost far too much money, but the simple fact was that in deporting him to Jordan, we eventually got rid of him because the Jordanians entirely changed their criminal justice system in respect to evidence in order to ensure that no evidence could be accused against him which had been obtained under torture.
It must represent one of the most tremendous victories for those who wish to see torture removed off the face of our planet, and it was achieved entirely because the United Kingdom was prepared to obey the rules, and not as the Daily Mail recommended, to chuck Mr. Qatada on the next plane, regardless of the views of the Strasbourg Court. That’s why I take the view that the convention is of the utmost value to us. If we are prepared to work within the context of the convention, then, as this tremendous booklet shows, we can start thinking about other areas of rights which need to be addressed. Interestingly, as the last session demonstrated, we’re beginning to do it. After all, the Equality Act could have gone into a bill of rights but we chose to do it as an equality act.
On the face of it, there are problems with the Equality Act. I have absolutely no doubt about it, and we’ve had some recent cases about issues of the balance of the way it works. Nevertheless, it seems to me that it’s working well. The law is developing. All that is being done entirely in conformity with our adherence to the European Convention on Human Rights. In the paper which has just been published, there are a number of essays on challenges posed dealing with the problem of refugees in the mass migration, an intensely political issue, which, on the face of it, highlights severe shortcomings in the way in which the UN Convention on Refugees operates.
We have a discussion on LGBT matters, which we have just listened to this morning. For example, there is a whole chapter on the duty of rescues, and that struck me as quite relevant because the one thing it didn’t have was the question of the international dimension in the duty of rescue, which of course came very much to the fore in the decision which was voted down by the House of Commons but which the Prime Minister wanted to pursue, of invoking the Doctrine of Humanitarian Necessity to take military action against President Assad. Highly controversial, because that doctrine is not recognised in some sections of international law. It’s impossible to speculate whether the outcome in Syria would have been better or worse had we taken such action.
Finally, an excellent chapter by Malcolm Rifkind on the investigatory powers bill which, as chairman of the ISC, is a subject which I know is highly controversial, very complex, but one where we as conservatives have to somehow try to strike the right balance between security and privacy, and I believe are in a position to do just that.
I promised I would speak for no more than half an hour and I suspect my half an hour is coming up, so I’m going to bring my remarks to an end, but I really want to repeat again what I said at the beginning. As conservatives, liberal conservatives, I think we would do well to remind ourselves that we are the heirs to a great tradition, one which I think has a lot of traction outside of the Conservative Party or indeed conservative circles itself and one for which we are instinctively respected.
If we want to build on that, we need to look at the totality of the architecture of rights and we need to do that most conservative of things, which is to conserve and then build on what we have conserved. In that context, my view has always been absolutely clear in my mind that to start to knock down the architecture of the European Convention on Human Rights in the, to my mind, rather deluded belief that there is a better tomorrow, an easier tomorrow if you do it is, I’m afraid, a delusional mirage.
Rather, what we should do is accept the frameworks in which we operate, seek, of course, as we did at Brighton in the Brighton Declaration, to change those if we think it’s necessary to do so by negotiation with our partners, and also to use the creative engagement, even if sometimes it irritates us a little in order to decide how we ourselves take rights forward in this country. If we do that, then we’re doing exactly what a Conservative Party should be doing, which is striving to look at our national picture and to do good for our fellow citizens. Thank you very much.
The Rt Hon Dominic Grieve QC MP formerly served as Attorney General
