Let judges decide on human rights

The trouble with human rights, it seems, is not so much that they exist but the way in which the Strasbourg court has been perceived to create a set of binding precedents for domestic courts regardless of their national legal context.

This is what appears to be behind the proposal for a British Bill of Rights. No problem with the principle of human rights, but, as a statute implementing European rules, the Human Rights Act is seen by critics as a Trojan virus in the English system. We already have a body of fundamental rights in the Magna Carta and in the 1689 Bill of Rights, they say; what is needed to further expand these ancient rights in our modern society is a set of rules that looks, feels, smells and tastes British rather than this European convention.

The most severe opponents of the convention even accuse English judges of judicial activism. A phrase, according to human rights lawyer Colm O'Cinneide, which is just politician-speak for court decisions they don't agree with.

O'Cinneide made the comment at last week's Sakharov debate, an event organised by the European Parliament to celebrate the Russian dissident who fought for freedom of speech. He is right, but it doesn't mean that judges are nevertheless immune to the destructive potential of this accusation.

Last month Lords Judge and Phillips, giving evidence to the parliamentary committee looking into the role of the European Court of Human Rights, took refuge behind the will of parliament to justify English judges' approach to the convention. English courts were merely applying an English statute, the Human Rights Act, which asked them in section 2 to 'take account' of the case law of the Strasbourg court. It was open to parliament to amend these words and give judges different instructions, they suggested.

But Lord Phillips' comments that same day acknowledged most vividly the senior judiciary's awareness of the problem. After ten years of HRA practice the English courts now took a more discerning approach to the Strasbourg case law, he said. It was no longer '“ if it ever was '“ a question of blindly applying Strasbourg rulings indiscriminately but instead one of extracting, where applicable, the relevant principles in each case.

It was an indirect but clear acknowledgment of the underlying political diffidence towards the Strasbourg court and the difficult position in which it had put judges. Clearer still were his comments in response to the criticism that Strasbourg judges lacked understanding of the national context, a situation that had led to unconscionable decisions on issues such as prisoners' voting rights and the acceptability of hearsay evidence. Such issues had been resolved amiably between English judges and their Strasbourg counterparts, Lord Phillips explained.

A month later, last week's Sakharov debate brought the issue back into the spotlight. English judges were not to be trusted with the convention, supporters of the Bill of Rights argued.

Britain is alone among the founding members of the Council of Europe to have taken such a positive aversion for the convention and where the dividing line between those in favour and against is so sharply drawn according to party political loyalties.

Britain doesn't need a Bill of Rights. It needs courageous politicians who can move Westminster away from the unhelpful political divide over human rights '“ and European matters generally '“ and work towards cross-party consensus. It need not be wholeheartedly, unquestionably pro-European but it would help work towards a long-term, stable constitutional settlement on human rights. More importantly still, it would allow judges to decide human rights issues without having their authority undermined by politicians.