Leading article

The democratic deficit at the heart of the Human Rights Act

Plus: Patriotism and the Commonwealth Games

26 July 2014

9:00 AM

26 July 2014

9:00 AM

Dominic Grieve was a worthy attorney-general whose career was helped by this magazine: nine years ago, he was named Spectator Parliamentarian of the Year, beneath the nose of David Cameron, then nearing the end of his successful campaign for the Conservative leadership. But Grieve’s remarks this week, in which he suggested that the Prime Minister would be seen to be as bad as Putin if he pursues proposals to give Parliament ultimate authority over laws in this country, underline why his position as a member of the government had become untenable.

One of the few redeeming features of David Cameron’s reshuffle is that it added a certain clarity to our position with the European Court of Human Rights. Its judges have become activists, trying to tell democratic governments (for example) that prisoners should have the vote. Only recently has the court tried to assert itself in this way, in defiance of the basic idea of a country deciding its own laws. Chris Grayling, the Justice Secretary, has a simple solution: a British Bill of Rights which would be senior to Strasbourg and protect this country from its more bizarre rulings. It is of course preposterous that such a sensible reform can lead to comparisons with Putin’s Russia.

Becoming a signatory to the European Convention on Human Rights does not of itself turn a rogue state into a place of freedom and liberty. On the contrary, in Putin’s case it seems to be used as window-dressing. It enables him to claim to be on the side of human rights when, as last week’s atrocity in Ukraine demonstrates, he still behaves as the KGB officer he once was.

There is a subtle but enormous difference between the European Convention on Human Rights, on which the Strasbourg court bases its decisions, and on the UN’s Universal Declaration of Human Rights. The latter states:

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage.

The former states only that:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

In other words, the European Convention respects the right to free and fair elections but does not demand that those elected respect the wishes of those who elected them, nor that a country’s legislature should be in ultimate charge. This has led to the situation in which a handful of judges at the ECHR can effectively overrule domestic law.

The European Convention is a product of its time. When it was written (by British lawyers) in 1950, many European leaders had a deep suspicion of democracy, blaming it for the rise of Hitler. The convention has been added to on many occasions, but no one has been brave enough to challenge the democratic deficiency at its heart.

After the government’s reforms, Britain would still be subject to judgments by the ECHR. Negative judgments would still stand as a stern warning not to trample on rights. The difference is that the ECHR’s judges would themselves be held to account, and that ultimately it would be the will of the people which would prevail.

Patriot games

In choosing this September for the Scottish referendum on independence, the SNP was presumably hoping Scots voters would be basking in the glory of a successful Commonwealth Games.

There is every reason to hope that the games, which opened in Glasgow this week, will emulate the London Olympics for organisational skill and, moreover, will help to sell an often-maligned city to the world. But why does it follow that Scotland needs to be independent of the UK to organise and enjoy such an event? If these games had been marred by pettifogging bureaucracy or financial constraints imposed by Whitehall, or if someone in London had trampled on Glasgow’s bid and put forward London or Birmingham instead, there would be every reason for Scots to feel aggrieved. Clearly none of those things happened.

These games, and every Commonwealth Games before them, demonstrate that it is possible for Scots to cheer on athletes wearing Scottish vests while remaining part of the UK. The same happens in every World Cup and Six Nations Championship. The issue facing Scots in September is not whether they want to be able to cheer on their own national sports teams, but whether they want to continue to enjoy the benefits of being a single economic and social system, where money, goods, people and ideas can flow uninterrupted backwards and forwards across the border.

We trust that Scottish voters will see through Alex Salmond’s narrow interpretation of patriotism and realise that there is no contradiction between cheering on Scotland and voting for the union.

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Show comments
  • Nigel Wilson

    Excellent summary. The will of the people, expressed in free elections, should be the basis for all government authority, and thereby for all judicial actions.

  • misomiso


  • We’re already protected from Strasbourg’s worst rulings in the sense that our own law is changed only if Parliament agrees. That’s how the often misunderstood and traduced Human Rights Act works. Prisoners still can’t vote, remember.

    This new plan must go further, and perhaps be an attempt to release the UK unilaterally from the international law obligations that go with being in the ECHR (like with any treaty). If that’s what’s planned, then the Putin comparison isn’t outlandish: he does indeed seem to think the Duma overrides international law when it comes to Crimea.

    I wonder what the Spectator would say if a newly elected US President proposed to respect rulings of the Supreme Court (and its activist judges) under the First Amendment only if Congress agreed?

  • And another thing. The UDHR doesn’t demand that a country’s legislature is ultimately in charge: if it did, the US would breach it every day. There, authority is deliberately divided up between three branches of federal government, plus the states of course.

    As for the reference to the will of the people, I wouldn’t be at all surprised if that sort of wording was avoided in the ECHR at British insistence. That sort of high-flown Rousseau-style political idea is a long way from traditional English thinking about Parliamentary sovereignty. It’s worth remembering that contrary to your implication, nothing in our system compels or mandates MPs to respect the wishes of those who elected them. Under the traditional Parliamentary approach, we simply have a free choice of who we elect. As the ECHR says.

  • Terence Hale

    PM question time.
    MP Sid; What’s the Magna Carta.
    PM Every body know’s that, 1215, a quarter past twelve, this is another example of the mess they left, don’t even know the time.

  • Roger Hudson

    The parliament should tackle the problem of the lack of any hierarchy of rights, if one persons rightA clashes with others rightB. Keeping people who may pose a danger to others in Britain (our rightA) against someones family life (their rightB).
    Sort it out.

    • Damaris Tighe

      But under the HR regime there is a hierarchy of rights: rights to a foreign criminal’s ‘family life’ trump his or her victim’s. It’s been seen several times.

  • Damaris Tighe

    You have only to look at the make up & resolutions of the UN Human Rights Council (& its predecessor the UNHCR) to see what a joke these pompous travesties of the real thing are. Countries with long traditions of genuine rights & freedoms get hamstrung by HR courts & councils so that the world’s worst regimes can use them as window-dressing.

  • HJ777

    Leaving aside the debate about the ECHR – there SHOULD be a democratic deficit when it comes to human rights.

    Governments should not just be allowed to do as they please because they have been elected democratically. Individual freedoms should be protected against the tyranny of the majority.

    Look at the US constitution – it is more about the limitations of US democracy and the protection of rights than anything else. The same thing applies here with our system of Common Law – rights are inherent and are accepted and should be protected by the courts. They are not something handed down by (elected) officials.

  • John Grundy

    You argue ECHR has “a democratic deficiency at its heart”. Perhaps you should be equally passionate to point out that the British electoral system, whilst complying with ECHR, is arguably in contravention of UDHR because the will of the majority of the people is not guaranteed to be reflected in the resulting government.

  • Jonathan Burns

    Does anyone remember the British people being consulted re membership of ECHR? There has never been a referendum asking the people do they agree or not to membership. Successive British Governments have signed up to it without once leaving it up to the people.
    That is why lawyers should be banned from standing as MPs, the ECHR only helps two groups in society lawyers and criminals.