Graham Child
A long-standing member of the Society of Conservative Lawyers (“SCL”) outlines the Society's role while in opposition, proposes the establishment of a college to teach conservative principles, and draws inspiration from French lawyers in exposing the left's distortion of "international law."
The European Convention on Human Rights (“ECHR”) is a dividing issue amongst many in our Party. The Tory Reform Group has issued a formal statement that the UK must under no circumstances consider leaving the ECHR. On the other side, there are many leading Tories who have made it a clear point of principle that we should indeed leave.
A person's position on ECHR sometimes seems to be taken as defining the type of person you are. That is certainly the case for many on the Left of politics.
The Rwanda policy discussions brought the subject very much to the fore.
Could a joint French and UK approach bring change to Strasbourg?
It is a topic which our Party, not least the lawyers in it, needs to debate further.
I set out some personal thoughts below, arising particularly out of recent meetings with French lawyers. France and Britain, as our Chairman of research, Anthony Speaight, has pointed out, were very much at the origin of the ECHR.
My first of recent encounters with French lawyers to talk about these things arose when Anthony Speaight kindly invited me to join a small group on a visit to practising lawyers in Paris. The most senior among them were individuals several of us had met over the years at the Federalist Society’s annual National Lawyers’ Convention in Washington DC. The purpose of the meeting in Paris was to find out the attitude to the ECHR in France of practising lawyers sympathetic with the politics of the RightMaybe, the thinking very tentatively went, a joint French and UK approach could bring about change “in Strasbourg”. The “living instrument doctrine” by which the ECHR authorities define their approach to the Convention document, is not to the taste of many conservatives in the UK nor, one might surmise, on the Right in France.
The reception in Paris was warm. It was clear, however, from the outset that thoughts of France departing from ECHR were very much absent from the minds of these representatives of French Centre Right legal thinking. The first point made by our principal host was that ECHR has saved one of his clients, François Compaore, from being forcibly removed from France against his will. The client, who was the brother of a deposed African President, came to our meeting, to make the point in person. The value to France of being members of the ECHR was huge, and in the case of this individual, almost certainly life-saving.
Continental lawyers with criticisms of the Strasbourg court
But, we asked, does the Convention cause any difficulties?
For a country within the EU, the EU Charter of Fundamental Rights is the first port of call on human rights matters for a lawyer, rather than the ECHR. Any government in France will feel itself first and foremost constrained by the EU Treaties. In any event – and this had been in our minds when we went to meet lawyers in Paris – the French government appears to take a “robust” line when it comes to rulings from Strasbourg, being willing, as it can seem to us, to ignore pronouncements of Strasbourg that the government does not find congenial. One might conclude that, while there may be difficulties with the ECHR, they rank as secondary to the issues which arise with the EU treaties, of which there are of course many.
It was of interest also for me later to hear a Hungarian lawyer say that in practice “Strasbourg” is generally more tolerant than “Brussels”. Hungary is a country which has had more than one run-in with human rights organisations.
The European Centre for Law and Justice
Notwithstanding these points, continental lawyers do have substantial reservations about the ECHR and this has been apparent to me generally, but very specifically it was apparent on a visit in June to the offices of the European Centre for Law and Justice (“ECLJ”) in Strasbourg. This is an organisation which assists parties before the European Court of Human Rights (ECtHR). The ECLJ is also engaged in publishing reports and materials about the ECtHR. For example, the director, Grégor Puppinck, recently wrote about Rule 39. It will be remembered that it was an order under that Rule which caused the first flight from London to Rwanda to be cancelled.
Beyond this, the ECLJ is interested in many aspects of the ECHR institutions. In 2020 and 2023, they published two reports, one building on the other, on the impartiality of the ECtHR. The ECLJ argues that the ECtHR should be exemplary and meet the same standards of impartiality that it imposes on national courts. But this has not been the case to date. The Court has not been subject to the scrutiny which it should have been. The reports argue that aspects of the handling of cases are opaque and there are problems of conflict of interest. The reports focus particularly, but not exclusively, on NGOs involved with cases before the ECtHR. On many occasions, judges have sat on cases supported by NGOs with which the particular judges were previously deeply involved. The court does not provide for a recusal procedure and judges do not publish declarations of interest. The 2023 report presents a series of specific recommendations to address the problems. Previous recommendations from the ECLJ have not been adopted.
These are all most important topics. The UK is a party to the ECHR, and these are all issues with which members of the SCL interested in these matters will need to grapple, even more than they may have done to date.
The Institut de Formation Politique – an inspiration
On a third visit to France, I met various lawyers at an event organised by the Cercle de Droit et Liberté, an organisation whose prime movers also attend the Federalist Society annual convention. The Right in French politics is fragmented, but lawyers on the Right obviously have reasons to share thoughts and experiences and they come together for that purpose from time to time under the auspices of organisations such as this one.
At this event, I was much struck by meeting the founder and director of the Institut de Formation Politique (“IFP”) a college which provides courses and training for those interested in the politics of the Right, including aspiring politicians of that persuasion. It runs long and short courses for 18 to 30 year-olds on the principles and history of conservative values and thought. It provides a forum for the development of views and principles relevant to all conservatives living and working in France.
Back in Britain and after the first meeting in France I mention above, Anthony Speaight was inspired to write a paper for the think tank Politeia entitled The Rule of Law, Rwanda and the British Constitution. The purpose was to argue that the Rwanda policy complied with international law. Its further purpose was to discuss the concept of the rule of law more generally. Both in France and the UK advocates for an ever widening role for international law and institutions have invoked the concept of the rule of law (or état de droit in French). Liberal democracies all claim to be governed by the rule of law. Advocates for an ever widening role of international law have a regular tendency these days to claim that failure to comply with international law, and even failure to comply with a disputed interpretation of international law, breaches the general concept of “rule of law”. Anthony points out that this is a misuse of the term. He refers amongst other things to French academic sources. The rule of law as a concept has no meaning beyond that of the nation state or an entity such as the EU. It is grossly misleading to use the term as a catch all in the context of international law.
Again – more on this below.
The Labour Government’s international law triumphalism
We now have a Labour government. It is very clear that the government will look favourably on international law and the institutions concerned. It has announced that it will withdraw UK objections, made by the previous government, to the issue by the International Criminal Court of warrants for the arrest of Israeli citizens. This proposal to issue warrants comes despite arguments that the Court lacks authority. Equally indicative is the presentation of its arms embargo on Israel as unavoidably mandated by international humanitarian law: the logic of the decision is hard to follow since the only violations relied on, namely interference with aid supplies, and mistreatment of detainees, are ones which do not involve the use of weapons. We may expect yet more from the new government in favour of international institutions where support might not be justified in the minds of all.
A recent article by Philippe Sands in the Financial Times, The reset: how Britain can restore its global reputation written an indication of the approach of our new government. Philippe Sands is a member of the English bar particularly known for his representation of clients before international tribunals. He is at the same time a proponent in the strongest terms for the advance of international law.
The article adopted a triumphalist tone. Sir Keir Starmer is now Prime Minister and has appeared with Sands in cases before international tribunals and understands these matters. Britain is condemned by Sands for its previous lack of respect for international law. Britain under Labour will be so much different.
A letter to the editor from Edinburgh the following week commented that the Sands article “essentially amount[s] to the view that unelected lawyers should run the World” and condemned him for his failure to understand the nature of the UN. These are points we may well agree with.
So, this brings me to my conclusions.
Roles for the Society of Conservative Lawyers – education
Compliance with international law and continued membership of the ECHR are issues of considerable interest on the right in British politics and in the Conservative Party. The SCL has an important role to play in moving the debate forward and in informing its own members, as well as Conservative politicians, members and voters more widely of what is entailed.
As regards education and training for younger people interested in right of centre politics, I mention that I was struck by provision that is made in France. I believe that here in Britain in the past the Conservative Party ran a training institution. Paul Goodman, once editor of Conservative Home, former MP and now in the House of Lords, has recently proposed that the Conservative training school of earlier times should be resuscitated.
I could welcome that idea and I would welcome the creation of something along the lines of France’s IFP in Britain. We would much benefit from having a College providing courses, both short and long, on the principles and history of conservative thought and identifying and spreading awareness of the dangers and ways of combatting the progressivist mindset which has taken over so many of our institutions. If that were to happen, maybe the SCL could, if resources allowed, create a role for itself in giving input on the legal side.
Roles for SCL – dialogue with continental lawyers
In the shorter term, we have specific issues concerning our approach to international law and whether we should or should not remain in the ECHR. Our division makes us very weak in the face of the conviction politics of the Left. We must find a way forward. Lawyers in particular, must be vocal in discussing these issues. These are legal matters. It could be very helpful if SCL could undertake a general discussion and debate. I would welcome it too if the SCL could find a way to bring concerns held by continental lawyers about the operation of the ECtHR and other international bodies into our debate.
Roles for SCL – rebutting distortions of legal principle
It has always been something of a mantra in the Society that we come into our own when the Party is in opposition. We will certainly be active on this topic. Conservative MPs need and deserve our help. International treaties and the ECHR are not matters that everyone learns about as a matter of course. The term “rule of Law” is being misused in the debates about international law. And why is it, many will ask, that in the UK we seem to fall over backwards to comply with whatever is said to be international law when others may take a more selective approach. The question is always – are we mugs?
Maybe the SCL should start by distributing a copy of Anthony’s Politeia pamphlet to every Conservative MP. Then, maybe follow up with an offer to MPs of seminars on these matters. We might be well served by a rapid response unit able to challenge articles such as that of Philippe Sands, if members are available and resources allow.
I am sure the committee is planning initiatives already.
Anthony observes in his pamphlet that British academics are generally silent on these issues. It is true. One, of course, must not overlook the fact that among British academics wishing to make or maintain a career in academia there is undoubtedly a degree of self-censorship, meaning they are careful, even sometimes reluctant, to publish on subjects where they think they might incur the disapproval of substantial numbers of colleagues. One exception where input by academics can be found on this type of topic is the Judicial Power Project (“JPP”) of the thinktank, Policy Exchange. Output of the JPP is well worth consulting via the Policy Exchange website.
Roles for SCL – combatting activism in international tribunals
It is over 40 years since Antonin Scalia and colleagues in the USA set up the Federalist Society to combat what they saw as activist judges interpreting laws in ways to achieve ends seen by those judges as desirable but which had not been reasonably in the scope of what the elected lawmakers had intended. The concern was confined to what went on within one country’s legal system. Even more must we come out fighting when we are being told that our government must comply with the decisions of one international tribunal or another where lawyers we might consider activist are very much in evidence as advocates, officials or even judges.
A small footnote. Our own Human Rights Act is nowadays part and parcel of the Human Rights framework of our laws and our membership of the ECHR. I am no expert, but I do know that our courts are at times required to interpret legislation which comes before them in ways which make that legislation compatible with the ECHR. It has been brought to my attention that in the Victims and Prisoners Act which became law at the end of the last Parliament the relevant rules under Section 3 of the Human Rights Act 1998 are disapplied for certain matters in the criminal justice area. Part of our future discussion might perhaps be concerned with whether this type of provision should become more common in legislation in the future.
Graham Child is a past member of the Oxford University Faculty of Law, and was founding co-author of Bellamy & Child’s European Community Law of Competition. He was formerly a partner in Slaughter and May.