Dominic Grieve: I am not a lone voice crying in the wilderness

The Conservative debate on human rights is “very far from over”, Dominic Grieve told an audience of lawyers last night, as he strongly criticised his party’s recent policy paper – saying he was not sure a key aspect of it “was really intended as a serious proposal”. There are “plenty” of Conservative supporters of human rights, he claimed, and he said they will win the internal debate – but “must not stay silent”.

He was giving a lecture organised by the the Judicial Institute and the Constitution Unit at UCL under the title Why it matters that Conservatives should support the ECHR. Here’s the full draft text to which he spoke.

Attitudes to human rights among Conservatives, Grieve began,

are more complex and often more nuanced than the reading of a tabloid newspaper might suggest.

There is much that remains undebated and misunderstood about both the Human Rights Act and the European Convention on Human Rights, he said. The ECHR and its application in our law through the HRA is, he said, of enormous benefit to our country and our collective wellbeing.

The politician in me is determined that this argument can and must be made with some passion because I believe it goes to the heart of our identity as a nation and of our national interest.

The rights originally protected under the Convention were, he said (though like Dinah Rose QC, in her recent lecture, he saw the article 8 right to respect for private life as the exception)

a classic exposition of the “liberties” which successive generations of British politicians and the British public generally have insisted are our shared inheritance. How well they were in practice maintained through the centuries however is very questionable; there have been plenty of examples of their violation. But they are part of an entirely distinctive national narrative … This national narrative has been so powerful that it’s acted as a an almost mythic restraint on successive British governments trying to curb freedoms

But the ECHR has created its own dynamic:

By converting liberties to rights it’s facilitated their ownership and assertion by individuals, rather than their mere invocation as abstract principles against administrative or policy decisions. The anger of the tabloid press at undeserving claims is the inevitable corollary that claims by the deserving can now be made.

He put Britain’s acceptance of the ECHR in a broad foreign policy context:

It has been the intention and policy of successive UK governments over the last two centuries to seek to make the world a less dangerous, more predictable and better place by encouraging the creation of international agreements governing the behaviour of states.

Since the adherence of so many states that had been previously governed by Communist tyranny, he said,

the Convention and the Strasbourg court have been instrumental in facilitating the creation of the rule of law in environments where it had never previously existed … For all its problems, the Convention has proved and is proving to be an effective tool – perhaps the single and most cost-effective one currently available for promoting human rights on our planet.

Citing criticism of the Strasbourg Court by British judges, Grieve said

I think these criticisms are valid. The Strasbourg court … has sometimes micromanaged the Convention too much and sought to impose a uniformity of practice that is not desirable … The problem caused by the Court’s decision on prisoner voting in the case of Hirst is for me a good illustration. In itself the issue is largely symbolic: the question of whether or not convicted and sentenced prisoners should have the vote is of very little practical consequence. But symbols can matter in the context of parliamentary democracy and the judgment in my opinion was an unnecessary interference with a policy that enjoys overwhelming parliamentary support and cannot I believe be categorised as a substantial interference with a human right. I am sorry that I wasn’t able to get it fully reversed when I intervened in the case of Scoppola v Italy on the same point.

But I have to say that as a lawyer this is, regrettably perhaps, not the first time I’ve disagreed with a court decision in a case in which I have appeared.

And in a number of key cases involving this country, the court has made adverse findings which an overwhelming majority would now say were correct, Grieve added.

I have never been lobbied by a single colleague on the grounds that S and Marper v UK in which the Strasbourg Court held that the UK policy in England and Wales of the indefinite retention of DNA and fingerprint profiles of acquitted individuals (the only jurisdiction in Europe to do this I might add) was unjustified – never has it been suggested to me that that was wrongly decided.

Grieve mentioned what he saw as positive changes in recent years. Emphasising a point he made recently at Gray’s Inn, he said the government might have achieved more reform of the Strasbourg system at the Brighton Conference in 2012

and actually changed the text of the Convention itself, if our fellow signatory governments with which we negotiated, and who shared our goals, had not been deterred by their domestic NGOs from full co-operation with our agenda, because of a fear that we wished to diminish the Court’s effectiveness. This was a mistaken fear then, but I have to accept the most recent Conservative Party paper is going to make further progress on this harder.

While it was too early to tell if the Brighton reforms would achieve all that was intended, Grieve said “there are signs we were going in the right direction”. He also welcomed the fact that

the important shift by our own national courts away from the principles in Ullah defining the requirement of “take account of” as being the close mirroring of Strasbourg decisions, has initiated a dialogue that has led to a number of cases in which the Strasbourg Court has shown deference to the reasoning of our own … Proactivity by our own judges pays jurisprudential dividends.

Turning to the recent Conservative policy paper on human rights, Grieve said

I am struck by the paucity of concrete examples of Strasbourg mission creep that are identified, to justify a case for change.

He dismissed as of little or no real impact the Dickson case about artificial insemination and prisoners, and the need for a review in the context of “whole life orders” following the Vinter case:

as was made clear by the Court of Appeal in the case of McLoughlin, such a review mechanism has always existed and has to be operated compatibly with Convention rights by the Justice Secretary or risk judicial review. At present therefore, this example of mission creep is hypothetical and of absolutely no practical effect.

Grieve agreed that Article 8 has been invoked too often to try to justify foreign criminals escaping deportation at the end of their sentences.

But this has … a lot more to do with the failure of the UK Borders Act 2007 to address this issue as intended. That was why Parliament has recently enacted the Immigration Act 2014. It’s intended to be compatible with our adherence to the Convention … If it works and in introducing it the Government believed it would, it’s difficult to see how the proposal in the paper which promises to put the text of the Convention into new primary legislation would improve matters at all.

He pulled apart other specific proposals, in particular the idea that the courts should disapply rights in “trivial” cases:

Such an exercise is likely to prove  difficult and fruitless. It will still have to be subject to judicial interpretation, and I think it will add to and not reduce litigation. The courts of our country have well tested processes for preventing abusive claims taking up time and cost.

The paper overall would put our relationship with the Convention in question, he said, as

it is impossible to see that the proposed Bill of Rights can be compatible with it – entirely different from the position which my Party adopted in its manifesto when promoting a Bill of Rights in 2010.

The consequences of this are likely, he said, to be devastating domestically and for the future of the Convention.

Domestically, our non-compliance with the Convention calls into question the devolution settlements for Wales, Scotland and Northern Ireland which enshrine Convention rights as governing all their actions … At a time when the future of the United Kingdom is still in question and I have to say the peace settlement in Northern Ireland still fragile, it opens the prospect of a new area of political discord, quite apart from the possibility of our courts having – or the Supreme Court having – to operate different rights systems in one country. For a Unionist party this seem to me to be a very odd thing to do.

He warned of trying to leap out of an ECHR frying pan into an EU fire:

At present the European Court of Justice in Luxembourg is confined to applying the Convention as enshrined in the Charter of Fundamental Rights only to matters within EU competence. But it has, as I know from my time as Attorney General, been notably expansive in this respect; and it has properly been a goal of government policy – successive government policy – to try to limit this trend … But I really can’t think of anything more likely to accelerate this trend than claims being brought before the European Court of Justice by persons who consider that they are being denied access to Convention Rights, and that they can get no redress either domestically or through the Strasbourg court – because we’re treating judgments there as merely advisory. The likely consequence must be that as long as we remain in the EU, the European Court of Justice will expand its jurisprudence to give redress and of course its judgments will then have direct effect here against the government of the United Kingdom.

Grieve seemed clear that the policy paper would lead the UK to withdrawal from the ECHR:

it is inconceivable that we can negotiate a special status for ourselves within it

he said. The UK’s ambivalence about the Convention

flies in the face of all the good work done internationally by the United Kingdom government to promote human rights for so long – and I should explain, being done on a day-to-day basis by the foreign office and DfID at this very moment. I have to say that as a Conservative this pains me. Whatever the challenges the Convention has posed and I accept that there are some proper grounds to criticise its operation, the failure of ambition represented in the paper and the narrowness of its moral and political vision is, frankly, very disappointing.

Grieve remained politically optimistic, though, about a Conservative debate he saw as have been opened rather than closed by the policy paper:

The debate on which my Party is now embarked is one that I believe need not lead to our withdrawal from the Convention or such an adverse outcome for human rights or our national interest … those of us in the Party who see the maintenance and promotion of an international system of human rights as being in the national interest and entirely in keeping with a Conservative tradition of freedom under the law, will win that argument for the reasons I’ve tried to set out this evening – but we must not stay silent.

Following his lecture, and in response to a question Joshua Rozenberg, Grieve said

we’re never going to be able to negotiate this “advisory status” – this is fantasyland. It would destroy the Convention to have the United Kingdom with some special status, so I think we would have to leave.

But he thought the policy paper actually conceded quite a bit to his way of thinking:

I’m interested that, in considering a Bill of Rights, it is the intention to take the Convention text and incorporate it into the Bill … the mere fact that that has been accepted is an indication to me that the Convention has actually become quite well embedded.

He said that when you analysed closely the complaints made against the Convention, they were really quite detailed detailed quibbles, and

when you start to do the cost-benefit analysis between pulling out … wrecking our adherence to the Convention at precisely a time when I happen to think the Convention is shifting in Strasbourg interpretation – it’s not the first time that UK political parties or governments … start to clutch defeat from the jaws of victory; it’s quite a customary occupation of this country – I think they may start to conclude that perhaps actually there might be a better way of doing this.

He said he is

quietly optimistic that this is an argument that is very, very far from over, and indeed seeing that this is the opening shot of the argument from those who want this very profound change it doesn’t seem to me that they’ve made it a very compelling one.

In answer to a question about prisoners’ votes Grieve made this point, related to his ideas about “dialogue” between courts:

It’s very unfortunate actually that Hirst never went to the House of Lords. Because it was never considered at the top end. It was a Divisional Court case it was thought to be so straightforward and clear that there was no ground for taking it further. I somehow think if we had a House of Lords judgment, I rather wonder whether in fact the judgment in 2005 would have been the same.

Asked by me what form of agreement the Conservative policymakers might hope to obtain from Strasbourg – a resolution or public statement perhaps – Grieve gave this remarkable answer:

I have to say, when I read the paper I thought that the author was probably telling a sort of private joke. It had that slight element of it … I’m not sure whether this was really intended as a serious proposal, as opposed to a fig leaf … they didn’t want to say they wanted – were going to – pull out; they wanted some sort of accommodation. I have to be blunt about it: I think that is the likely truth, because it doesn’t bear, I think, close scrutiny … I think somebody was just trying to say “there’ll be a negotiation”, because it just glossed this difficult issue which may, interestingly, not just be for public consumption, but for Conservative consumption as well. Which is why I say I have this quiet optimism.

Asked how believers in human rights could vote Conservative, Grieve said Labour, although it had complied with the Convention

did also do a number of other things which made my hair stand on end,

identity cards being the example he gave. It was not right, he suggested, to think his side had lost the argument among Conservatives:

This is an ongoing debate, as I see it, and … if you are a believer in human rights there are plenty of people who support the HRA and ECHR who are members of the Conservative party, quite a few of them in Parliament. I am not a lone voice crying in the wilderness.

Responding to a question about whether withdrawal from the Convention would necessarily mean the UK had also to leave the EU, he replied that

it may be a matter more of practical reality rather than theory, and that is that it would be all right, or could be tolerated, until there was a breach of the Convention, or a serious failure to observe a Convention norm as determined by the Strasbourg court. But it’s not a place where we ought to be.

He reaffirmed his support for the previous, 2010 version of his party’s “British Bill of Rights” policy:

Such a Bill of Rights might have some real practical benefits, indeed it was advocated back in the early 90s when the question of incorporation was first being considered. It would allow us to create perhaps a more distinctively national document which could also protect some other rights which aren’t protected in the convention at all, things like the right to trial by jury for example. It could even become  – I don’t think we want a written constitution – but it could even become a sort of defining document about some of the ways in which we do things … you could incorporate into it the question of when we hold elections for example … that might have a greater register with people because it would make them realise this was something very much within our national tradition, and not a foreign document.

Grieve was to say the least realistic about the electoral importance of all this:

quite frankly I don’t think that on the doorstep at the next general election, the question of our membership or otherwise of the ECHR is going to be a burning issue at all, I really don’t.

Grieve is an interesting figure politically, as well as legally. A loyal and mainstream Conservative, he made clear last night his agreement with party policy, including on the EU – on which he can clearly live comfortably with David Cameron’s approach as it is currently – while differing on human rights alone. On that, he seems determined to prise open an argument others may think is over, and feels those like him can persuade his party back to a more traditional rule-of-law position, in which foreign policy and home policy make sense together. How far he is capable of swaying Tory opinion, and whether his optimism is misplaced – time will tell.