Will the scrapping of the Human Rights Act make Britain a pariah in Europe? When the Human Rights Act was passed in 1998, it was presented as a moment of great liberal modernization that was to take Britain closer to liberal democracies on the continent.
Yet, the European experience was quite different. In Germany, France, Spain or Italy, if you bring a human rights case, you do so mainly by reference to the distinctive bill of rights contained in each of those countries’ constitutions. The Norwegians, who also reviewed their human rights legislation recently, were clear on one thing: their Supreme Court had to continue to decide human rights cases under their own bill of rights rather than the European Convention or any other international agreement. Not so with the Human Rights Act in Britain.
Of all places, the country which – as Alexander Herzen put it – ‘invented liberty’ decided to codify its human rights laws for the first time in 300 years by directly incorporating the European Convention, and then instructing the judges basically to follow the ECHR precedents. The Human Rights Act was a typical example of the hasty, ill-thought-out constitutional reform of that period.
The debate on human rights that followed the adoption of this unimaginative piece of constitutional legislation has been uninspiring. One side dismissed every criticism of Strasbourg as fodder for Daily Mail readers. The other failed to put forward a case that went beyond reactive anti-Strasbourg sentiment. Both lacked constitutional vision.
The Tory proposals announced this week may not yet articulate a full constitutional vision. But they are a good start and may at last succeed in reshaping the terms of our public argument about human rights. The most significant change is that they would enable our courts to develop their own interpretations of human rights independently of Strasbourg. British judges will probably continue to refer to a wide range of international and foreign legal materials, including the ECHR. But, like judges on the continent, they will at last be able to engage with these materials not from a position of statutory submission or deference as happens at present, but from one of constitutional autonomy and strength.
With time these changes may allow us to strengthen those human rights which the European Court has neglected and, in some cases, even undermined. For example, the protection of free speech under the ECHR is woefully inadequate, especially when compared with the US. Rather than being misled by Europe on free speech, Britain should once again lead.
But the most important consequence is that these reforms will create an opportunity to bring human rights back home. Labour’s Human Rights Act conflated two spheres that other major Western democracies keep clearly separate: constitutional law and international treaty obligations. This approach is responsible for the perception among the British public that human rights are a foreign imposition. We need a legal framework for protecting our liberty that restores public confidence in human rights.
In Tom Stoppard’s Coast of Utopia, Herzen’s comment about the English inventing liberty is followed by a quip: ‘they did it without having any theories about it’. The British genius, as Burke understood, was to entrench liberty in the beliefs, traditions and habits of the British people, realising that this matters even more than abstract pronouncements. The association of liberty with tradition instils a sense of individual and collective ownership of those rights. It connects the individual with past and future generations. It minimises the atomising effect of purely individualistic entitlements.
Ancient rights and liberties came with a sense of historic responsibility: they had to be guarded and held in trust for the future by everyone. The fact that this responsibility is not legally enforceable does not diminish its importance. For the British conception of liberty did not purport to be just a construct for lawyers; it was also political, social and moral philosophy. It united the rulers and the ruled, and gave the country a sense of purpose.
For too long the British have been disconnected from this great tradition of liberty. Yet, for those of us born and educated abroad it is the first thing we learned to admire about this country’s history. In the coming years the challenge will be to develop a synthesis of historic liberties and modern human rights.
It could not have been done under the strictures of the Human Rights Act.
It is right that the first step in this process should be to free the creative forces of the common law from the shackles of deference to Strasbourg. The Conservatives’ proposals should help us achieve this. Rather than drive us away from Europe, they can root us in the best of continental constitutionalism and in the tradition of British liberty.
Guglielmo Verdirame is Professor of International Law at King's College London and serves on the Attorney General's Public International Law Panel.