Hard cases, it is said, make bad law. In the absence of a copy of the judgement in the Chindamo case and an intimate look at the basis in law upon which this murderer’s appeal has been allowed, it is very unwise to rush to judgement on the case. One is reinforced by this, if it needs reinforcing as a matter of general principle, by some observations said to emanate out of Jack Straw’s Ministry of Justice (how I hate that name with its banana republic connotations) to the effect that it may not be the Human Rights Act 2000 which is at fault but some other piece of European legislation. Whilst that may be no more than an attempt to deflect mortar fire being directed at the much-criticised Human Rights Act, it is wise to await sight of the full reasoning of the Appeals Tribunal before coming to any specific conclusion on the case. If it is down to some piece of EU legislation, Straw and the Labour Government cannot, however, win: that will simply be the signal for the mortars to be re-ranged and for fire to be directed instead at the EU and the way in which we have lost control of the right to legislate for the safety of our people and of our nation.

Whatever turns out to be the case, I have gone back today to the text of the European Convention on Human Rights (ECHR) which is now 57 years old. I have considerable familiarity with it because the Statutes of the two International Criminal Tribunals, for the former Yugoslavia (ICTY) and Rwanda (ICTR), both deriving much of their language from the ECHR and I have worked as defence counsel at both.

My general observation is that the world in which the ECHR was drafted has changed very considerably in the meantime. In some respects it has been overtaken by other Treaties, an example being Article 3 of the ECHR being superseded by the 1985 Torture Convention, and by the development of a large body of international humanitarian law and jurisprudence at the ICTY and ICTR as well as significant social changes which have brought legislative developments in their wake: I am thinking, as an example, of Article 14 which deals with discrimination, an area of law which has undergone huge development in the past 57 years. Other Articles might have similar observations made of them.

The second observation I have is that the Convention was the product of a body of 14 nations then members of the Council of Europe of which only the United Kingdom and the Republic of Ireland were common law jurisdictions. As a result the document has a very Civil Law feel to it. One of the striking features of the jurisprudence of the ICTY and ICTR is that it is very difficult, if not impossible, to bolt the Civil Law on to the Common Law and vice-versa. One of the problems that I believe we have got into with the ECHR being incorporated into English Law is that it has now found itself the object of intense scrutiny by lawyers and judges who are most adept at finding out its flaws, a process that it has never really experienced in the much more civil law environment of the European Court of Human Rights.

But that is how our law is arrived at: a constant process of evolutionary legislation and interpretation. And before you all reach for your pens or keyboards and opine that we had best, in those circumstances, swap over to a more civil law based approach to this, let me say straight away that that would be madness for, having seen both systems at work, I am absolutely convinced that the Common Law is outstandingly the better system, better able to adapt and evolve as society and the law evolves than the much more rigid and straitjacketed Civil law.

My conclusion is this. There is a perfectly rational case for saying that we should have a new British Bill of Rights. This would be a document which is carefully drafted to be consonant with British Law, with appropriate amendments for the laws of Scotland and of Northern Ireland. It would be drafted to take account of all the developments in society and the law since 1950.

For example, it should in particular aim to establish a much better balance between the rights of victims of crime and the means by which the victim is placed in the forefront of our human rights law and the rights of offenders, some of which are also, in a civilized society, very important, such as the fair trial provisions. There can be a much better set of provisions to reflect the great changes British society has undergone since 1950.

At the same time we should aim to produce a far better document than the ECHR so that when we withdraw from the ECHR, as we shall have to do, we can properly point to a much finer piece of legislation than the one from which we have withdrawn: in this way we can show a clean pair of heels to the Europeans and demonstrate that we are more modern and more progressive than they in this field.

There are many political points to be scored against Labour for the way in which they have handled the incorporation of the ECHR into our law and how they have responded to its very considerable imperfections. But human rights as a concept are most important in a civilized society and we must not let the important task of biffing Labour to conflict with the task of getting ourselves a first-class Bill of Rights of our own.

As matter of curiosity I would also suggest that people read our 1689 Bill of Rights and also the US Constitution and US Bill of Rights which are its grand-children to see how some of the concepts therein are actually still very relevant and very modern and how they were the forerunners of such Conventions as the ECHR. You will be surprised just how far we in the Common Law world were ahead of the game. We can be again.

For a great documents site see http://tinyurl.com/2yzw9

See
Bill of Rights 1689
US Constitution
US Bill of Rights
This is the Avalon document site: a real treasure trove

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