The former lord chief justice has recently made his views known about the operation of the Human Rights Act (see Rights & Wrongs). It is instructive that the nature of the argument about human rights has been so misunderstood and distorted that the former head of the judiciary in England and Wales has to stress the self-evident fact that he supports human rights.
What he is saying is something which has troubled me for some time. It is worth noting that British lawyers were invited to draft the European Convention on Human Rights after the second world war because it was recognised that Britain was the embodiment of good parliamentary governance and the rule of law.
Democratic freedoms and rights are not new to us. Magna Carta was created in 1215 and habeas corpus enshrined in statute in 1679. This legacy from the British founding fathers is revered by lawyers in the US, who do not subscribe to any convention which might hand judicial oversight of their citizens to a foreign power. It is not arrogant to say that Britain did not need the convention on human rights. It was designed for Europe, in which human rights were so abused that the state murdered millions through death camps and non-judicial executions.
However, the convention is not the problem, as it does no more than set out basic principles. It is the European Court of Human Rights which causes the unease. It sees itself as an engine of social engineering, but this is properly a matter for elected representatives.
Half the judges of the European court have had no previous judicial experience. Lord Jowett, lord chancellor when the convention was drafted, foresaw the problems we now face when he pointed out that the ‘real vice of the document’ was its ‘lack of precision’ and that decisions were to be made by people ‘who were not even lawyers’.
Our Supreme Court consists of the greatest minds our legal system can produce, with years of practising in our courts with justice and fairness at the core. They have healthy disagreements with government but respect the role of the democratically elected representatives of the people sitting in parliament. Not so the European court. It is this imposition of opinion from unelected, unaccountable, individuals which many are finding offensive and which leads people to question the operation of the Human Rights Act.
Lord Judge has raised important points concerning the rule of law and the democratic process in Britain. It would be bold to suggest that British parliamentarians and judges cannot be trusted to safeguard human rights without oversight from Europe.
John O’Donnell, senior partner, odonnells solicitors
