The Inns of Court are brimming with events commemorating the 800th anniversary of Magna Carta. This should remind us that we have the longest continuous history of the protection of personal liberties of anywhere in the world. Magna Carta was the foundation stone on which our liberties were progressively built up through political struggle, judicial precedent and Parliamentary action.

By the end of the last century there was a strong case for setting out our liberties in statutory form because, as we all know, neither the common law nor even fundamental statutes like the Bill of Rights 1689 can withstand being over-ridden by an ordinary Act of Parliament – or even by a statutory instrument.

But Labour’s Human Rights Act of 1998, instead of building on the rights recognised under our constitution and in our history, side-lined them by importing wholesale into our courts the case law of the European Court of Human Rights at Strasbourg.

Unfortunately that Court has gone well beyond its proper task of interpreting the laudable rights set out in the European Convention. It has engaged in judicial adventurism by creating doctrines which are not based on the text of the Convention or any reasonable interpretation of its intent. Such doctrines do not have a democratic or constitutional mandate from the states who agreed to be bound by the Convention. The Court’s claim to override Parliament’s democratic decision on voting by convicted prisoners has no basis at all on the text of Article 3 of the First Protocol, and is demonstrably contrary to the proceedings of the diplomatic conference which drafted it.

Defenders of the Act argue that it simply directed our courts that they “must take into account” Strasbourg Court decisions, not be bound by them. But whether or not those words are capable of being read differently, the House of Lords decided in Alconbury and Ullah “in the absence of some special circumstances, to follow any clear and constant jurisprudence of the Strasbourg court”, and secondly, “to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.

Our courts have been willing to challenge Strasbourg judgments with some success where they appear to rest on a misunderstanding of our domestic laws or procedures, but their unwillingness to depart from “clear and constant” Strasbourg jurisprudence amounts ultimately to servility to error and endorsement of Strasbourg adventurism in “interpreting” the Convention.

We now need a clear break from this approach in the new Act promised in the Conservative Party’s election manifesto. This will ensure that rights recognised by the Convention are available under our law by putting the Convention text into our domestic law, but re-base the interpretation of those rights firmly onto the rights built up and recognised under our law as the first port of call. Our courts will be freed from the (arguably self-imposed) shackles of having to treat Strasbourg jurisprudence as binding, even where it is “clear and constant.”

Our courts will of course still be able to treat Strasbourg judgments as persuasive but non-binding authorities. Equally they will be enjoined to look at national court decisions, particularly those of common law countries dealing with similar rights in a common law context.

It seems that some people regard disagreeing with the Strasbourg Court’s contentious interpretations of the Convention as if it were some kind of sacrilege. It is argued that some other states in Europe who do not have a good record for the protection human rights will treat such an attitude by the United Kingdom as an excuse for non-compliance with the Convention.

But in fact the problem there is quite different. Certain countries are willing to commit or to countenance what are undoubtedly, and on any interpretation, clear breaches of Convention rights. It is naive in the extreme to suppose that such countries are in the slightest bit influenced in their conduct by whether or not the UK chooses to disagree with the Strasbourg Court’s highly debatable extensions of the Convention to acts which are not obviously within its scope. It is not clear what concrete good continued self-flagellation by the UK in this regard would actually achieve.

In fact, the obligations under the Convention regarding judgments of the Strasbourg Court are much narrower and more limited than is generally supposed. The Convention contains no general obligation requiring member states to apply Convention rights in accordance with the interpretation adopted by the Strasbourg Court in its judgments. Instead, there is a much more limited obligation to comply with specific judgments of the Court in cases to which the state is a party – i.e. to comply with the actual relief ordered in a specific case before the Court against the UK.

The new Act

The new Act will need to make clear that our courts should not follow certain areas of flawed Strasbourg jurisprudence in interpreting rights under the new Act. For example, the Strasbourg Court’s case law extending the scope of the Convention outside the territory of member states and into areas of overseas military occupation or temporary control is manifestly unfounded on the Convention itself. Since the Convention extends to wholly-controlled dependent territories only if the state concerned lodges a specific notification with the Council of Europe, it is ridiculous to suppose that the Convention should extend automatically to areas of merely temporary or incomplete control. More fundamentally, the Convention contains a list of rights fashioned for European peacetime conditions which are simply inappropriate for conflict zones, which are regulated by their own rules of international law.

Another important area where interpretation of the rights needs reform is press freedom, where the Strasbourg Court has sought to impose an overly-restrictive Continental view of the balance between media freedom and privacy rights. And of course the shambles to which the Human Rights Act has reduced our country’s ability to deport dangerous or undesirable individuals from our shores needs addressing. Here, the main problem is not so much cases where individuals are ultimately able to establish a breach of the their rights, but the seemingly endless opportunities for delays, judicial reviews and appeals created by the vaguely defined rights which can potentially be invoked.

The election of a majority Conservative government with its manifesto promise to repeal the Human Rights Act has produced a near hysterical reaction in certain quarters. It is clear that the Act is regarded by some as a sacred totem which under no circumstances must be touched or even questioned. Lawyers are particularly prone to suffering from a world view in which lawyers and courts should control, and if necessary override, the decisions of democratically elected politicians if they conflict with lawyers’ interpretations of what should be the scope of human rights.

This is a particularly unfortunate mindset in dealing with situations where a judgement needs to be made between one right or another, or between a right and other considerations such as the safety of the public. Under our Parliamentary constitution, that judgement call is and should be ultimately one made by democratically elected politicians and not dictated by courts or lawyers.

Such opponents of change should open their minds. They should recognise that the Human Rights Act is not loved by the public and is actively disliked or even despised by many, and is widely regarded as a vehicle for abuses. A new, reformed Act, 800 years after Magna Carta, which firmly re-bases our fundamental rights on our history, will protect those rights better because it will command respect. The protection of rights is not only, or even mainly, a matter for lawyers. The most effective protection for rights comes when respect for them is embedded amongst elected Parliamentarians and across society generally, an objective which the new Act will achieve where the Human Rights Act has failed.

Follow the HRA/EU debate in Counsel. See also: “A view from Strasbourg”, Dean Spielmann, President of the European Court of Human Rights, Counsel, April 2014; “A view from London”, Lord Judge, former Lord Chief Justice, Counsel, October 2014; “The case for the Human Rights Act”, Sir Keir Starmer, Counsel, January 2015; “In or out: influencing the EU”, Evanna Fruithof, Consultant Director, Bar Council (Brussels), Counsel, May 2015.

It is clear that the Act is regarded by some as a sacred totem which under no circumstances must be touched or even questioned

Contributor Martin Howe QC, 8 New Square