As I read the judgments in the cases of Hirst, and Greens and M.T., I was struck by the supreme irony of what the European Court of Human Rights was proposing. The judges in that Court clearly surpass even the Red Queen in “Alice’s Adventures in Wonderland” in their ability to believe two impossible things before breakfast. On the one hand, they say that the right to influence the laws under which we live by helping to choose the people who make those laws is so important that even criminals should retain it. On the other hand, they say that even the law-abiding people of this country have no right of last resort to decide the laws of their country if they are overridden by the decisions of the European Court of Human Rights. One can believe one or other of those views, but one cannot uphold both views consistently at the same time.
How did we get into this pickle? As we have heard, after the war Lord Kilmuir codified what were seen to be British liberties and rights in the presumption that two things would follow, the first being that enshrining them in the European convention on human rights would bring the advantage of British liberties to”“lesser breeds without the law”,”
as Kipling had it. Secondly, it was assumed that the convention would have no effect on the people of this country because it enshrined the laws and liberties that we already had so there would be no need to change them. It was assumed that whereas the European Court could overrule courts in other countries with judiciaries who did not have experience in human rights or who were open to intimidation or bribery, we did not have that problem so there would never be any conflict between our courts or laws and the Court.
As we know, things have not worked out like that. In becoming a signatory to the convention, we did not just enshrine and encode the liberties that we had, we changed the way in which, and the basis on which, laws were made, and we changed the people who made them. British liberties evolved through Parliament making laws and the courts elaborating on and clarifying them, as well as through common law, but they were always subject to Parliament being able to have the last word and to make the law if it did not agree with what the courts had done. Our liberties did not result from giving courts the right to explicate an abstract list of rights. They were not given a right to strike down, invent or rewrite laws, but that is what we did, without realising it, when we signed up to the convention after the war-and that is what the European Court of Human Rights is empowered to do.
Rights are not absolute. One right must always be balanced against another. The rights to free speech and free expression must be balanced against the right to privacy or the right to our reputation under the laws of libel. That balance, reconciliation and limiting of extremes is essentially a political matter and it has always, in the last resort, been made by a political body-Parliament. We have done that reconciliation if it needed to be done, but it is no longer up to us-we are no longer allowed to do so. Instead, that power to make a political judgment rests with courts, which are not elected and which lack political skills or sensitivities. That is wrong, and that is why the long-term solution is for us to leave the treaty on the European Court, to entrench the convention rights in our law and to leave our courts to interpret them with Parliament having the ultimate right to disagree, as it does, if it wants to.
I have a question for Government Front Benchers. On what basis are we told that we have to sign up to the Court’s judgment in the short term because we will face a huge damages claim if we do not? In all the judgments I have read, the Court has explicitly refused to award damages. It has said that the ruling was sufficient justification in itself and that the prisoners did not need any damages. It considered whether exemplary and punitive damages should be imposed, not so much because the prisoners merited it but to force us to concede, and it concluded that it should not do so. The practice direction that goes to the Court says that it considers it”“inappropriate to accept claims for damages with labels such as”-“