On 26th April this year, in a committee room of the House of Lords, we held a debate on the UK’s membership of the ECHR.
Arguing the case to leave the European Convention on Human Rights (ECHR) was Paul Diamond. Paul is a barrister who has done some wonderful work defending Christians who are losing their freedoms. One of his cases was defending an employee of British Airways who was banned from wearing a Christian Cross. He took this case to the European Court of Human Rights and won.
Speaking against leaving the ECHR was Francis Hoar. Francis is a barrister at Field Court Chambers. He's been involved with the Free Speech Union, electoral law, public law, election law, and lockdown cases. Paul spoke first.
Paul Diamond: I've kept this talk fairly light to provoke a discussion. I'm going to give some personal views. I hope it doesn’t sound like a rant, but I also hope that I sound cogent and reasonable. I have had a long history in this matter. I don't know if many of you remember Baroness Young, but she asked me in 1998 to give her a legal opinion on why we should not implement the Human Rights Act in the first year of Tony Blair’s administration.
She was one of the most formidable women I've ever met, and I remember thinking that when she was Head of the House of Lords, and we had Mrs.Thatcher as Head of Government, and we had our late Queen as Head of State, it was a totally formidable team. It was tough working with her, but a pleasure. But she asked me to come up with some examples. What could I come up with? How could anyone argue against human rights? What could happen? And I came up with the strongest examples I felt possible, which, of course, the government of the day ridiculed.
But if I'd said to them, in those examples, that within seven years you would be at British Airways fighting for someone to wear a cross the size of a penny, while they permitted turbans, hijabs and bracelets, but the cross was banned; or I'd be doing cases where people could foster children if they didn't promote homosexuality, I’d have been laughed out of every chamber.
So, what's at stake in this is democracy; the true meaning of the rule of law, and what the rule should be. Parliament makes the laws, and of course, the courts apply them. But those roles have been reversed under the human rights jurisdiction. So, it's very straightforward. If Parliament signs a treaty, incorporates it, and our Foreign Secretary jaunts around the world wanting to look good, signing international treaties, we've got a problem.
We've got the European Convention incorporated, for example. We've got the Convention on the Status of Refugees incorporated. We've effectively got the Convention on the Rights of the Child, incorporated. Our courts will give effect to it. We've passed the law and, of course, they're going to defer to the treaty-determining body in the UN or in the European Court to determine the true meaning of a treaty that we voluntarily signed or have implemented.
So, it's a problematic issue, and it does start in the House. Many years ago, I had a meeting with the Commissioner on Human Rights in Strasbourg. I wanted to discuss my pet themes, which were freedom of religion and freedom of speech, and it became very clear that the only human rights that were relevant were LGBT rights and feminism. But it's a bit old now, so I think feminism has gone. They're going to get rid of that, and I think women's rights are in great danger.
I actually believe we had more freedom in 1998 before the Human Rights Act. I've been doing cases for a long time on this. And you can see where we are with freedom of speech. Apparently, it's written into our law. How can it be wrong? We’ve got hate speech, offensive speech; we’ve got cancel culture, we've got Twitter, Facebook, and the great BBC.
So, I believe human rights law has taken a very dangerous turn and, in many ways, can be contrary to democratic government. If you take the example of abortion in the United States (and it’s a good example), the right to have an abortion was determined in 1973 to be a constitutional right. So, it didn't matter in America whether the President was against it, if Congress was against it, if 48 of the 50 states were against it. If five members of a body said it's a constitutional right, there's nothing you can do about it. And more and more rights are being constitutionalised or declared human rights. It doesn't matter what the government does.
Of course, the Supreme Court recently reversed that in the Dobbs decision, where they're just simply saying it's not a constitutional right; it's a civil right, which the lawmaking bodies of the states can determine. And what is law? Law is just a piece of paper at the end of the day. Democracy is a societal norm.
Human rights, treating people with respect, is a societal norm which existed in this country for many centuries under common law, prior to joining the Human Rights Act and prior to implementing it. And if it ever got to the stage where the army was deployed on the streets and we reached a totalitarian governmental stage, I can assure you having a few people wearing horse-hair wigs in a dark little building off the Strand is not going to make the government back off.
It doesn't work like that. In many countries, including Stalin's 1936 constitution, are some of the most wonderful documents in the world that give people more rights than they could ever dream of. And so, I'm saying human rights are undefined. It gives powers to judges on political questions. They're unelected. They will decide societal disputes from transgenderism to same-sex marriage. We've got the creation of the philosopher judge, which is an extremely painful sight to see as they turn their dark legal texts into wonderful meanings. We've got ever-expanding rights.
The words that we already have, like privacy, are expanded. We are moving into socio-economic rights, housing benefits, employment disputes. And now we're going to what some lawyers call third-generational rights, which is climate change. Cases are brought now in Strasbourg on climate change, issues of identity, and right to water.
You'll be glad to know that Strasbourg has regularly ruled on war cases and conflict cases. And as we know with Russia, they are very concerned about what Strasbourg judges are thinking. And the Strasbourg courts are not ashamed if they call it a living instrument. The text is irrelevant. They are keen to expand it. They've adopted principles such as a common European consensus. So, if every country has got same-sex marriage, is it a human right to get same-sex marriage? Not of any principle. It's just a European consensus.
We have probably one serious European state pushing back against this ever-expanding process, and that is Poland. And they are battered by the European courts, both European Union courts and human rights courts. And they can't appoint their own judges anymore. Any judge the Polish government appoints is arguably not an independent judge because they wanted more Catholic judges, and they wanted the Polish Parliament to appoint the judges rather like our Lord Chancellor or like the President of the United States. But they can't do so.
So, we've got the Bill going through Parliament today on immigration, and we're told that we can carve out an exemption on this. I doubt that'll work. Leaving aside numerous rulings by the European Court, you've got to have a fair hearing; you've got to have an appeal. Well, if you're Greece and you have got half a million people going through the court system, and if you're the United Kingdom, you have got 150,000, it’s clear that we haven't got enough judges and it also costs a fortune.
Of course, there are going to be delays. And the issues are so complex under human rights law, like rights of children to education. And even if this bill goes through, I'm not convinced the European Court itself in Strasbourg will accept it. I think there's a good chance they could rule it illegal. In any event, I believe that our judges will take notice of their decisions, which they have to do while we remain, I believe, a signatory to an international treaty. That's their job.
If any of you were appointed as a judge, you have to give effect to international treaties. It's not your job to decide what His Majesty's Government signs. You give effect to it. I think the only way to handle it is I think you'd have to do a lock-stock-and-barrel assault. I think partial workings will be struck down by our court or the European Court. You'd have to do a comprehensive approach of withdrawal. It'll be vitally important that you bring the British people with you, and they explain the merits of leaving because the media will kick-up, the EU will kick-up on our trade relations. If we were a member of the EU, they would do what they did to Poland, commence Commission actions against us that we were breaching the rule of law, and we'd have to have nerves of steel.
As I always say, I'm waiting for the day when they arrest me for a violation of human rights, for exercising my human rights. That date is coming soon.
I hope that I have kept a very short, light, entertaining introduction. Thank you.
Francis Hoar: Thank you, Paul. Just as an opening, I would have thought that given there is a debate on this subject, our Members of Parliament might want to hear what the issues are. So, it is rather disappointing that that debate means that they think they shouldn't even attend. But my approach on this is pragmatic and realistic. And I want to start by asking what is the mischief that is being dealt with, being approached, and why we need to leave?
Again, answering that question, we need to be clear about the distinction between, on the one hand, the Human Rights Act, and the way in which human rights have developed in this country, and, on the other, the membership of the Convention and what that entails. And these are not easy questions. Paul was absolutely right to say that there are severe problems in the way in which Strasbourg has marched towards a much more detailed version of the interpretation of human rights than was envisaged by the authors of the Convention.
Just to put in context where we are now, we are not required as members of the Council of Europe, and as signatories of the European Convention on Human Rights, to incorporate it into domestic law. There's an important distinction between domestic law and international obligations. International obligations are not really law. They are simply an obligation as a member state of a treaty to follow that as a matter of your membership.
Unless Parliament says the treaty is part of law, it is not part of domestic law. Now, there is an exception which Paul intimated just now, which is that the courts do have an obligation to interpret law in accordance with our treaty obligations because it's assumed that Parliament will legislate in accordance with treaty obligations and that that interpretation should be imposed by the courts.
But there are exceptions, and the obvious exception of Parliament being sovereign is where Parliament itself says through primary legislation that it intends not to be compliant with a particular international obligation. That's what's happening right now. So, in terms of whether or not the courts would apply an Act of Parliament saying that interim remedies, which is what this is about, imposed or suggested, as I would put it by the European Court of Human Rights, must not be followed, then they would have to follow that.
Interestingly, it's worth reiterating what Martin Howe KC said on Saturday. I think it was in the Telegraph. In criticising the approach that the Strasbourg Court has taken, he said the reality is different. The European Convention on Human Rights does not confer any jurisdiction on the court to make interim rulings which are binding on states. Article 46 (1) expressly states that only the final judgements of the courts are binding.
The court, in fact, acted under Rule 39. This is the Rwanda case, which is what the Home Secretary, I think, is addressing through the Act of Parliament, or Bill going through, which states that Rule 39 of its rules and procedures states that it may indicate not to order or injunct interim remedies that it thinks should be taken in a case as a matter of principle. Such rules govern the procedure by which a court exercises its jurisdiction and cannot expand its jurisdiction.
Martin points to the fact that in 2005 the Strasbourg Court effectively said otherwise, but again it is open to our Parliament to say we are not accepting that, and that inevitably may result in difficult cases in Strasbourg. And the Strasbourg Court may well find, as it has done in the past with prisoner voting, that our law is not compatible with the Convention.
But there are a number of decisions - prisoner voting is one of them - where the courts made a decision. Britain and other countries, for what it's worth, have gone a different way, and the consequence is not earth-shattering: it is effectively a stairway, certainly in those cases. Now, of course, one can envisage circumstances in which a country was so far against the fundamental rights that are within the Convention that they would be suspended or expelled. And that is exactly what happened with Russia last year. Incidentally, the day after, or possibly the same day, it indicated its intention to leave the Council of Europe, which is the body that holds the Convention - I'm going to turn to that shortly - and also revoke the Convention itself.
So, there is a way in which we can be members of the Convention; members of the Council of Europe, which I submit and suggest is an important part of the framework, but also can have a much clearer steer on our rights with Parliament in the pilot seat and give to our courts final determinative effect. Now, in fact, as it happens, the courts do. Even under the Human Rights Act, the domestic courts do have the final say. The Human Rights Act requires them to take account of Strasbourg's jurisdiction but not to follow its rulings.
Another point that Paul made, an important point, is generally about common law, fundamental rights and what common law is. Who would have thought in 1998 that he would be defending the right of a woman to wear a cross as part of a British Airways uniform? But the answer, of course, is that there are two points there. Firstly, it was the Strasbourg Court that eventually overturned the decisions of the courts in this country.
I think the second point, though, is wider and more fundamental because, effectively, what common law is is a progression. It's an organic concept. It is the judges applying the law to the culture and the mood of the times. Now, in 1998, no doubt it was very difficult to think that many of the right things that are called rights now would have happened. But then again, in 1998, it would have been very difficult to see to what extent social change would have developed, not just in Britain but across the world.
Is it really the case that that is due to the Strasbourg court and that that is due to our incorporation of the Convention? Or is it, in fact, the response of judges to huge changes in social norms, which are also reflected, let's not forget, in Parliament and in legislation?
So many of the rights, in inverted commas, are actually Parliamentary. For example, civil unions back in the 2000s, same-sex marriage in the 2010s, the limitations on free speech to a certain extent, particularly now when we look at the insidious Online Harms Bill, and the way some proponents are framing it. We’re causing the problem. And then Paul said, rightly, is it conceivable that men in horse-hair wigs would do anything if the tanks were marching through London? And he rightly said, probably not, or if they did, the government would pay no attention.
But we know the answer to that because the courts gave another answer. If you want to just use an Act of Parliament that's never before been thought of being able to impose the most fundamental restrictions on liberty in this country in peacetime or perhaps ever, as a Court of Appeal judge put it, it can, even though nobody before 2000 would ever have thought it could do that.
So, is it not right that actually a bigger problem is here in England and in a wider sense in the United Kingdom and not just in Strasbourg?
Now, with that in mind, after a rather lengthy introduction, what are the benefits? Well, I accept Paul's point about the fact that the Strasbourg Court has an over-increasing view of human rights and has developed that jurisdiction. But I also point to the way in which our courts have done it. But I do suggest that there is a need for international humanitarian law and the norms of humanitarian law, and I do think there is a need for international institutions to do that.
Who would have thought in 1989, with the tearing down of the Berlin Wall and the end of Communism in Eastern Europe, that we would be seeing genocide within years in the Balkans? Who would have thought in 2020 that we'd be seeing appalling human rights abuses and war crimes in Ukraine?
We might have thought that Putin was capable of it, but the extent to which it has happened is alarming. Now, obviously, I suppose the answer is that Russia has just left. It's been expelled. But that it has been expelled matters. I don't put that as the first argument, I know that it is a rather trite argument for the Convention as ordered by Maxwell and Churchill, but it’s not a good enough argument for staying within it.
But nevertheless, it is important that we are members of an important organisation. And there have been a number of times in the past decades where Strasbourg has actually applied important rights, which I think now we would recognise are important and whether or not we think Parliament should have sovereignty over it, I think the emphasis by the Strasbourg Court and the Strasbourg Court saying whether or not you want to implement them is important.
For example, Article 2, the right to life. There's an enhanced requirement for review to assist families, which comes from Strasbourg jurisdiction.
Article 3 refers to the freedom from torture. In the Republic of Ireland versus the United Kingdom case, Strasbourg declared that sleep deprivation on an appalling scale and waterboarding were unlawful and were certainly cruel human treatment, and are within Article 3.
Article 5: liberty and security, and also the convection on democracy, have been important in ensuring fair trials in the Balkans. And then there are many other examples, one of which is, and I accept the point about freedom of speech, and I've been bringing, and so Paul has been bringing, a number of cases about freedom of speech on behalf of clients.
There has been a very positive change in the last two years, starting with a case about gender-critical behaviour and rights to speech, and going on in the case about the Non-crimes Hate Bill, where the Court of Appeal found that that was unlawful, relying on Article 10.
I accept, of course, that freedom of expression could rely on our common law rights to freedom of expression, but these are real examples. And the other benefit is the fact that we're members of the Council of Europe. Now, people might say so what? But I think that does matter, actually, and the first primary question is can we be members of the Council of Europe and not be members of the Convention? And the answer is probably not.
The reality is that no members of the Council of Europe are not members of the Convention. To leave the Convention, you would need to denounce it. Would that mean that the Council of Europe would allow us to remain? It's possible, but perhaps unlikely. Having left the European Union, something I have to say I favoured, I didn’t want us to be cutting ourselves off from Europe.
I didn't favour leaving the EU because I didn't think international co-operation was important. It's very important, and it's important particularly when we're not members of the EU. The institutions of the Council of Europe, which are inter-parliamentary and intergovernmental, are exactly the kind of things that Eurosceptics said should be the basis on which the European Union or the European Economic Community, as it was, should have been, but was never organised.
They are sensible, and there are a number of co-operative organisations which our membership of the Council of Europe enables, and that enables our rights and our engagement in Europe more generally, while we are not members of the European Union. I think that's important.
So, ladies and gentlemen, I suggest that we need to look at what the mischief is that leaving the Convention is suggesting will change, whether that is real mischief or whether in fact, the problem lies with cultural change and with our courts, not necessarily with Strasbourg.
We need to remember that there are ways within which, perhaps by repealing the European Human Rights Act; perhaps by having a new Bill of Rights; perhaps by having other carved-out parliamentary exemptions, as Parliament is doing right now, there are other ways that we can deal with the problem with Strasbourg overreach which I accept is a problem. But we must also remember, firstly, the benefits the Convention has had over the past few decades for the wider community (with a small ‘c’) of Europe, but also the negative consequences of leaving, which go far beyond our duty that we have under the Human Rights Act or courts do have regard to those judgements. And so, I beg to oppose.