Nick Herbert: accommodation with Strasbourg is a pipe dream

In his Kingsland memorial lecture last night, hosted by Policy Exchange, the former justice minister Nick Herbert MP argued that Britain should “leave the jurisdiction” of the European Court of Human Rights. This was an argument he trailed in a piece he wrote for ConservativeHome last week on the day of Chris Grayling’s statement on prisoners’ votes. It goes well beyond existing Conservative policy, which is to enact a “British bill of rights” alongside the European Convention.

Deliberately framing his appeal in the context of New Labour’s domestication of human rights in the 1998 Human Rights Act, he said

the UK should complete the process of repatriating Convention rights begun under Tony Blair’s government by withdrawing from the jurisdiction of the European Court.

Herbert criticised both the European Court of Human Rights, and the legal culture of human rights as they are are used and applied in modern Britain. Something tragic is happening, he argued, when members of the public express hostility to the entire concept of human rights.

Referring a number of times to Richard Thompson Ford’s Rights Gone Wrong he argued that opportunists and extremists had hijacked rights, aided by the courts:

The Strasbourg Court’s conception of the Convention as a ‘living instrument’ has allowed it to go way beyond simply applying the Convention principles to new developments, to creating entirely new categories of rights through its interpretation.

In this, Herbert’s thinking seems clearly influenced by the U.S. debate between originalist reading of the Constitution and the “living constitution” approach.

Although the Labour government tried to create a culture of rights, Herbert argued,

what has actually been unleashed is a culture of grievance

with people trying to

achieve through litigation what they cannot achieve democratically.

At times Herbert’s lecture seemed like a wide-ranging attack on a rights-obsessed professional middle class. Civil servants, he said, had become too averse to legal risk, with the result that

decision-making has become skewed in favour of the path of least resistance.

He attacked “narrow legalism” which he said “cannot provide a comprehensive morality” and, mentioning the title of Francesca Klug’s 2000 book Values for a Godless Age, said that kind of thinking was misguided. In this, Herbert echoes my views about “human rightsism” of a few years ago.

Herbert stressed more than once the conflict he sees between an elitist legalism which claims to know better than ordinary people what rights they ought to have, and democracy:

How can we believe in democracy if we don’t believe that the public’s moral intuitions are essentially sound?

He questioned the value of judicial detachment from public opinion:

The logical endpoint of such an argument would be that the people would best be served by a dictatorship of the judiciary.

Human rights, he said, quoting one of his own previous lectures,

 cannot be an elitist ideal imposed upon an unwilling public.

His most important criticism though was of the European Court of Human Rights itself. He quoted the Labour MP Lynn Ungoed-Thomas (later Mr Justice Ungoed-Thomas) who at the time the European Convention on Human Rights was drafted argued that giving a supranational court power to rule against national legislatures was

the most anti-democratic procedure we could possibly conceive.

Strasbourg, Herbert argued, has

has too often paid lip-service to the doctrine of the margin of appreciation, while ignoring it in practice

a criticism I’ve made myself. He now believes, he said,

that an accommodation with the Strasbourg Court that will respect the proper role of the British Parliament and domestic courts is a pipe dream.

Even if reform of the Court agreed at the recent Brighton conference succeeds, he said,

the fundamental faultline remains: a supranational court can impose its will against ours.  And this, in the end, represents a challenge to democracy which cannot be allowed to stand.

The climax of the speech was Herbert’s rejection of current Conservative policy – enactment of a British bill of rights to sit alongside the European Convention. This, he said, would be more likely to reduce than enlarge Parliament’s room for policy choice.

I propose a more radical solution.  We should complete the repatriation of the Convention begun by Labour in 1998 – finally ‘bringing rights home’. We should make our Supreme Court truly supreme by giving it prime responsibility for the oversight and enforcement of Convention rights.

Herbert accepted this meant “going through the process”, as he put it, of denouncing (a phrase he said, in response to a later question, that he hates) the European Convention on Human Rights. But it would not, he claimed, mean withdrawal from the Council of Europe or the EU.

The most interesting argument he made for his solution was, perhaps paradoxically, one based on respect for the international rule of law. Referring to the prisoners’ votes controversy, he said

We could, of course, do as some suggest and simply ignore the ruling … But if one believes that law-breakers should not be law-makers, then the reverse is also true: we cannot simply ignore international law that we have signed up to.

Responding to the argument, often heard, that the UK’s withdrawal from the ECHR would send “the wrong signal” internationally, he countered

once we accept that the UK will not abide by the ruling in Hirst, then the question must also be asked: what signal does it send for the UK to remain a signatory, wilfully disregarding a ruling of the Court and an instruction from the Council of Ministers?

Answering a question from Joshua Rozenberg about his move beyond the official Conservative stance, Herbert agreed that his solution was certainly not government policy. That answer, though, only reveals how serious an attempt this is to influence mainstream and frontbench Tory thinking on human rights in a more radically Eurosceptic and (a critic might say) internationally isolationist direction.

I asked about the EU angle. Since human rights can be litigated in the domestic courts through EU law, didn’t his proposal have implications for the UK’s European policy more widely? Mightn’t he need to repatriate the human rights-related aspects of EU law too? Replying, Herbert accepted there was an overlap between EU law and human rights, but said he did not want to open up that question. It was, he said,

for another lecture, by another lecturer.

That was understandable on the night, since the EU is much more shark-infested territory, for any Conservative, than human rights. But those sharks do lurk in the waters he wants to swim.

I don’t agree with Nick Herbert’s proposal – I think the Strasbourg system’s strengths outweigh its real defects, that it can be reformed, and that Britain may, one day, even win a war of attrition over prisoners’ votes. Britain should play a long game on human rights; it’d be a mistake to act out of impatience. And Herbert downplays, perhaps to the point of complacency, the real risks he would run in terms of foreign and European policy. To withdraw from the EHCR would mean much more than just “going through a process”.

But anyone who’s argued that the existing Conservative line is half-baked must in a sense welcome his thinking. For too long, Tories have kidded themselves that there’s some legal sleight of hand, some tweak of the Human Rights Act, that could insulate this country from the European Court and Convention while we remain officially loyal to both. There isn’t, and Nick Herbert’s right to say so.

Conservatives must choose between the policy the government’s currently pursuing – acceptance of existing legal obligations while trying to reform and influence the European Court – and Nick Herbert’s radical alternative.