The day of reconciliation

The decision by the European Court of Human Rights' grand chamber in Al-Khawaja on Thursday has provided a tantalising peace offer in Britain's battle with Strasbourg over hearsay.

At a superficial level the ruling will undoubtedly take some of the heat off but of course what is at stake here is not just the admissibility of hearsay. The war that still rages on in Westminster lobbies, Strasbourg corridors and English courtrooms is about sovereignty, and it is far from over.

Everybody with an interest in the issue will be aware of Lord Phillips' comments in the Horncastle case. They are the most recent expression of the ambivalent relationship between Britain's senior judiciary and their Strasbourg counterparts. Seemingly standing up to Strasbourg on hearsay evidence, the Supreme Court's president said that not admitting it could result in criminals being left free to offend again.

It was a response to the European court's earlier decision in Al-Khawaja, which found that a conviction based 'solely or decisively' on evidence the defendant did not have the opportunity to examine breached the article 6 right to a fair trial.

Ruling on the appeal yesterday, the Strasbourg court's grand chamber revisited the issue and provided sensible clarification about the circumstances where evidence such as hearsay will or will not be compatible with article 6.

This eminently practical outcome is consistent with the court's own approach to the development of the law under the convention. It is an approach all judges take and allows the law to develop as a living set of rules.

Disappointingly this was reported variously as the European court trying to cover up an earlier embarrassing outcome or backing down under Britain's pressure. It doesn't help that judges unwittingly '“ or perhaps not '“ provide arguments to a government keen to contain the effects of the Human Rights Act.

Rewind to June 2008 and you will find Lord Hoffmann grumbling about lawyers' excessive reliance on human rights arguments. A year later, on the eve of his retirement, this turned into an all-out attack on the European court, which the former law lord repeated in February this year, suggesting the government should consider withdrawing from the European convention.

The so-called power struggle between Britain and Strasbourg has been entirely engineered by politicians exploiting the debate over the meaning of section 2 of the HRA asking judges to 'take account' of the European court's rulings.

Lord Bingham in Ullah laid down what seemed like clear ground rules. To 'take account' meant to 'keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less', he said.

Move forward to the evening before the Al-Khawaja judgment and Lord Irvine, the architect of the Human Rights Act, added his voice in support of the Act. The former lord chancellor said parliamentary debates at the time provide clear indications that 'take account' did not mean 'be bound by'. Not only that, but a rejection during the passage of the bill of an amendment by the late Lord Kingsland to include terms to this effect made it unequivocal that "take account" merely meant "have regard to" or "consider".

Lord Irvine has been out of the spotlight for some time, so his lecture, "A British Interpretation of Convention Rights", organised by University College London and the Bingham Centre for the Rule of Law, was a telling moment. Supporters of the Human Rights Act are beginning to come together in defence of the ECHR and against the idea of a British Bill of Rights.

The method which consists in minimising the jurisdictional power of the European court - see also simillar comments by Lord Phillips before a parliamentary committee this summer in relation to section 2 - may appear to be a step back from what some regard as the universal reach of the European convention. But in the current circumstances it is a step in the right direction; possibly the only realistic way forward.

In this context, the Al-Khawaja decision represents a milestone in the process of rehabilitation of the Human Rights Act. Not just because of the outcome but also because the English president of the court, Sir Nicolas Bratza '“ who voted with the 15:2 majority '“ saw it fit to make a positive case for reconciliation.

The result in Al-Khawaja, he said in a concurring opinion, was 'a good example of the judicial dialogue between the national courts and the European court on the application of the convention'. This is the very dialogue that Lord Phillips advocated before the parliamentary committee, and the one explained by Lord Irvine last week. There must have been a few conversations between Strasbourg and Parliament Square in the past few months.

But whichever way you look at it Al-Khawaja should reset the human rights clock and help both Britain and Europe turn a corner for the better. All we need now, in the spirit of Christmas and as a New Year resolution, is to make a wish that this gratuitous euro-bashing stops and that a more constructive approach is taken to the application of the human rights convention.

Copyright & permissions