7 October 2022

There are good arguments against the ECHR – and they deserve a proper hearing


There is a deep political irony these days: increasingly, it is progressives and not conservatives who cling to existing institutions and tell us that any attempt to limit or abolish them will inevitably lead to disaster. The good news is that conservatives have cottoned on to this turning of the tables and begun to fight the progressives on their own ground. An excellent example is a brief, brisk and highly readable piece of iconoclasm called ‘The Limits of Judicial Power’, published by Policy Exchange earlier this month.

Its thesis is twofold. First, judicial review – that is, the role of the courts in constraining the actions of government – needs to be corralled for now and constrained for the future. The argument is, unsurprisingly, technical and legal (the author, Richard Ekins, is after all a successful law professor), and we will not tax readers’ patience with it here.

In lay terms, however, it says that matters of high politics, such as decisions to advise the King to prorogue Parliament, should be placed beyond judicial control; and that vague and open-ended grounds of legal attack on ministerial decisions, such as disproportionality, should be suppressed. Determinations essentially belonging in the political sphere, such as whether to hold a public inquiry, should be insulated from legal challenge; the political constitution and issues of constitutional virtue, such as whether the Ministerial Code has been broken and if it has what to do about it, should be scrupulously left to political determination, constrained only by the watchful eyes of the electorate. And any suggestion that the judges might arrogate power to themselves, even in extreme cases, to disapply an Act of Parliament (a point on which disconcerting hints have been thrown out at times by members of the Supreme Court), must be nipped firmly in the bud.

The second prong of the attack directs a skewer towards the European Convention on Human Rights. Ekins does not advocate leaving the Strasbourg regime forthwith, but says we should make clear the UK is prepared to do so. That is a threat we need to retain if the highly worrying activist ‘living instrument’ interpretation adopted by Strasbourg judges and the transnational human rights freemasonry causes it to continue to develop in a way inimical to UK democracy and the working of our constitution.

Meanwhile, we need to discourage our own judges from European-style human rights interventions by repealing the Human Rights Act 1998 and making it clear that only Strasbourg judges, whose writ does not directly run here, can pronounce on whether we are Convention-compliant. If even that is too strong, we need at the very least to revive many of the ideas in the recently sidelined Bill of Rights, such as limiting judges’ power to bend the words of statutes to conformity with Strasbourg’s interpretation of the Convention, or to go beyond that interpretation in interpreting particular rights, and also to remove the power to change laws to make them Convention-compliant by ministerial fiat. Equally we should have no compunction in providing that, for example, freedom of speech should prevail over privacy rights, notwithstanding any contrary views entertained in Strasbourg.

Even if you don’t agree with these proposals in their entirety (I personally, for example, am very much an ECHR-sceptic but have doubts about the idea of simply repealing the Human Rights Act), this is an important document. The reason is that it confronts head-on two propositions that for too long have been taken by progressives not as ideas to be defended, but articles of faith to be propagated.

Reviewing judicial review

One is the idea that the existing rules of judicial review as developed by the judiciary (and, one might add, greatly extended in the last 30 years or so) is not only a defence of the citizen against governmental overreach of its powers, but apparently the only plausible one.

That means progressives taking against any proposal to restrict either the available grounds for judicial review, or the ability of the courts to apply them, even if it involves cutting back a clear expansion of judicial power – as happened in the case of the 2019 prorogation judgment, which surprised even progressives in its sweepingness. To progressives, what is proposed amounts to a removal of the right of citizens to prevent their government acting illegally, and no one can rationally want that.

A moment’s thought shows that this is clearly wrong, since there is no clear a priori boundary between matters that should be subject simply to democratic control and those that should attract judicial intervention. (It is by no means obvious, for example, which side of the line a complaint of disproportionality should fall). In every case, the argument must be made for judicial control, rather than the case for it being assumed and then asserted. The more we can stress this and move the subject of judicial review from the realms of political faith to that of constitutional argument, the better.

The Strasbourg creed

The second is, of course, progressive veneration of the European Convention on Human Rights. The argument that it not only should, but must, form part of our law, are familiar. The UK helped to draft it (true, but only from a feeling of not wanting to be left out, and certainly not with the idea of it becoming a quasi-constitutional document rather than a slightly obscure international treaty). It represents the conscience of Europe (possibly true once, but less true every year that passes, as its interpreters become more and more a kind of priestly caste isolated from vulgar democratic and cultural pressure). It protects rights that are so important that they need to be placed beyond the democratic process (sometimes perhaps: but one would be hard-pressed to say this applied to many judgments on, say, privacy).

The difficulty is that the arguments against the Convention often get drowned out by the quasi-religious promotion of the arguments in its favour; progressive opinion has managed to get away for too long with arguing that opposition to it is simply unthinkable for anyone not prepared to be condemned as authoritarian, or fascist, or both. That ‘The Limits of Judicial Power’ should actually put respectable arguments against adhering to the Convention, and require its defenders actually to defend their case, is novel and heartening.

Of course that leaves the big question: will all this cut through to the people who matter, the voters? The progressive establishment would doubtless like to think the articles of faith they have worked to ingrain were too well-implanted for any attack on them to work. But perhaps they should not be too sure.

The Policy Exchange report wisely appends a survey (admittedly small) suggesting that, at least as regards human rights, its arguments strike a chord. Asked if Strasbourg judges should be able to override decisions made here, considerably more respondents said ‘no’ than ‘yes’; an even greater majority thought Strasbourg should not be able to block our courts’ decisions to deport foreign criminals. Even on the hot-button question of possibly leaving the ECHR altogether, the numbers for and against were roughly equal; within the Red Wall, substantially more actually favoured it.

The progressives may favour the status quo: but for once, one suspects, the people may be ready to rebel against it. Now where have we heard that before?

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Andrew Tettenborn is Professor of Law at the University of Swansea. He specialises in private, commercial and maritime law.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.