Richard Shepherd (Aldridge-Brownhills, Conservative)

Listening to the debate so far, one wonders why there was a need for it. The confidence of the Government, the Chairman of the Joint Committee on Human Rights and indeed Mr. Heath would seem to admit no difficulties in respect of the HRA. The Minister gave a curious history of the issue. The issues that confronted the greatest Labour Government of the 20th century were the very issues that this House and this country are still tussling over.

The Attlee Government was concerned about questions of enforceability and the divergence between the civil and common law approaches. They believed in a narrowly defined series of rights, whereas the legal tradition of France, Italy and Belgium preferred the evolution of a jurisprudence of the rights of a court. Theirs was the civil law tradition, as opposed to the common law tradition. The Attlee Government were also opposed to a system of individual petition and a court of compulsory jurisdiction. However, the exigencies of the day—including the political anxieties of the European continent, the coup in Czechoslovakia and the majority of just six after the 1950 election—meant that the draft convention was accepted.

Lord Chancellor Jowitt regarded that acceptance as inevitable for political reasons, even though he wrote in his memorandum to the Cabinet Committee that, from the point of view of administration of law, he regarded that necessity as "an unqualified misfortune". It was ratified by the United Kingdom in March 1951 with no reservations and it was a seminal piece of legislation. It was a major constitutional break with British practice. It was not quite on the scale of the European Union accession treaties, but it opened up our system of law and the sovereignty of Parliament to challenge by an extraterritorial court. It committed the United Kingdom Government in international law to protecting certain of the rights of its citizens. The proper relations between the citizen and the state were now a legal as well as a political issue. The Rubicon was crossed.

The right to petition was granted in 1965, but the first case that the United Kingdom Government lost was Golder v. United Kingdom in 1975. In that case, the court implied in article 6 a right of access to the courts. I do not quibble with that as it seems logical in itself, but its importance was that a contracting state was bound by more than the rights that appear on the face of the convention. No one reading the original convention could possibly have an objection to its provisions; they are a summation of our common law rights. Some of them are in our Bill of Rights and they are repeated, almost word for word in some articles, in the first 10 amendments to the United States constitution. The importance of those rights is more than that of those that appear on the face of the document. Counsel for the United Kingdom argued that the UK

"had no intention of assuming, and did not know that it was expected to assume"

an obligation to accord a right of access to the courts, yet in international law it was held to be bound by such a right.

In Tyrer v. the United Kingdom in 1978, the Court majority declared that the European convention is a living instrument, which must be interpreted in the light of present-day conditions. That encapsulates the broader tension in the role of the convention and its interpretive organs. In "Civil Liberties and Human Rights in England and Wales", Professor Feldman—the most distinguished adviser to the Joint Committee on Human Rights—notes that

"other states acquire an interest in the way in which a state is treating people within its jurisdiction. That interest can be pursued not only through international diplomacy but also through international law."

That presents a dilemma for Dicey's view of the British constitution, and we do ourselves small justice if we do not consider those tensions. The reason the Government are both divided and on the back foot over the so-called human rights issue is that they are caught: a judgment can be made through law—through legal instruments—but it can be confounded because we breach not the headline articles but an expansive Court that leads us into territory that was unconsidered and unrealised by the originating Labour Government.

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