Euro convention: don’t bring the house down

Here are the names of four lawyers, of which you will recognise three: Lords Judge and Sumption, Sir John Laws and Natalia Molosag. The opening trio are senior judges united by recent speeches criticising the operation of the European Convention on Human Rights. They made a bit of splash: Lord Judge was on the Today programme. He and Lord Sumption, in particular, have almost openly allied themselves with those, like Christopher Grayling, who plan to repudiate the binding nature of the convention. Molosag is of a different generation, a different gender and from a different country. She provides, as we will see, another perspective on what threatens to be too parochial a debate.

The judges make two rather different points. Lord Justice Laws focused on Lord Bingham’s proposition that: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ (para 20, Ullah [2004] 2 AC 323). He dissents. He may be right. It might well be argued that, on this occasion, Lord Bingham has logic rather than law on his side. Section 2 of the Human Rights Act requires a court only ‘to take into account … so far as … it is relevant’ a decision of the European Court of Human Rights.

Lord Irvine and Jack Straw, who took the bill through parliament, say that they always intended a discretion in how a domestic court responds to a European judgment. So, this argument conveys no real threat to those who support the core of the Human Rights Act. It could be addressed by a bit of judicial clarification.

The judges’ second attack, led by the two lords, is directed not at the Human Rights Act but at the convention itself. This requires the UK to implement decisions of the European Court of Human Rights in which it is a party. As a consequence, the treaty strikes, they argue, at the distinctive form of the UK’s parliamentary democracy. Let us admit that the European court might have gone too far on the subject of prisoners’ votes. But its decision could – and should – have been construed as a minor example of regrettable judicial overreach.

Instead, opponents of the very concept of enforceable human rights have seized on it with overt glee to attack the principle behind the convention.

At this point, Molosag makes her entry. She is a widely respected criminal specialist in Moldova; she has acted in cases to the European court; she is active in her local bar association. She is the sort of salt-of-the-earth lawyer who might be on our own Law Society Council. Here, she speaks for all lawyers in places like Moldova, where commitment to human rights is tenuous, or Russia, where it is almost non-existent. How does this debate strike her? ‘It would be a disaster … if the UK seriously argued that it should be exempt from the court because our government would be tempted to argue exactly the same.’

Here lies the rub, unacknowledged by the restive judges. If the UK comes out of the binding elements of the convention, we will depart like Samson, bringing the whole house down. And, it might be said, why should we care? What are countries like Moldova to us, anyway? Well, in this particular case, we might note that Moldova’s population is actually 80% Romanian and that many have Romanian passports. So, if Moldova, already the poorest country in Europe, collapses too far, then where do we think that its population might migrate? A better and more principled reply would be to feel concern at the loss of the protection that millions of Europeans get from the convention with precious little else between them and overweening agents of the states in which they live.

We need to define the legal issues more carefully than the judges have done. The UK lives within a web of international obligation that includes defence and free trade as well as human rights. We know how to live within these relationships. The UK’s exit from the European convention would be a kick in the teeth for democratic forces across Europe. We can solve our issues with the court by changes so minor that they are actually within the capacity of judges themselves to make. The court provides its own precedent for the acceptable balancing of principle with democracy in how it has, very creditably, dealt with abortion and suicide.

So, let us locate any UK concerns within a continuing commitment to the convention. Let no one pretend that this can be articulated as simply a national issue. The views of the countless, but to us unknown, lawyers, like Molosag, should weigh as heavy in our considerations – and on our consciences – as the thoughts of the most eminent of our own judges.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice