In 1999, when Lord Hoffmann’s links to Amnesty International resulted in Augustus Pinochet’s extradition case having to be reheard, the BBC described him as “the cleverest law lord of his generation“. He must have known, when penning his Foreword to Bringing Rights Back Home, that he would attract criticism from the academy, the Left-leaning press and the legal profession. Thus, that Foreword must be read as being deliberately controverial – intending to provoke just the type of debate that has ensued in legal circles this past week. It seems unlikely that the former judge is aiming a wrecking-ball at human rights or Britain’s half-century relationship with the European Convention.  After all, his scintillating opinion on internment of terrorist detainees in Belmarsh can be quoted verbatim by public law students across the country. However, throughout his career Lord Hoffmann has been chary of both the Council of Europe system and the EU. It is hardly surprising that at a time when both the Convention system and Britain’s relationship with it are in crisis that Lord Hoffmann would seek to intervene and offer his thoughts. And right or wrong, he is impossible to ignore.

In this case, while the report he has endorsed may have its merits, its conclusions are much more wrong than right. On the central point – relating to individual petitions to the European Court of Human Rights – the report would stymie a recent beneficial development in European judicial dialogue. The Human Rights Act 1998 does not require UK Courts to slavishly follow the European Court of Human Rights. The statute requires the Courts to “take into account” the European Court’s case-law. This has, it is true, been generally understood as requiring the UK Courts to follow the rulings of the European Court. However, there are signs that the UK Supreme Court has become more independently-minded in its consideration of Convention rights. In Horncastle the Court decided not to follow a ruling of the Fourth Section of the European Court of Human Rights. In a reasoned judgment, the UK Supreme Court noted that the European case was to be appealed to the European Court’s Grand Chamber and suggested that the Grand Chamber might wish to take a different view. The case concerned hearsay evidence – something which British courts have much expertise in dealing with. Horncastle marks a trend of an increasing willing on the part of the UK courts to engage in constructive dialogue with their European counterparts. Switching legal systems to the EU, the Supreme Court took a similar approach in a recent case concerning sanctions against the financing of terrorism. The Supreme Court chose to refer the case of M & Others to the European Court of Justice for a preliminary ruling but made some suggestions as to how the European Court might interpret the relevant EU law. These suggstions were by and large followed. Constructive dialogue between the German Federal Constitutional Court and the European Court of Justice has long been credited by EU lawyers as being the origin of the EU’s protection of human rights. It would be a shame if future interaction between the UK Supreme Court and both European Courts were curtailed by resurgent Euro-scepticism.

The real problem with Lord Hoffmann’s Foreword is its publication in a week in which Parliament must finally decide how to act on the matter of prisoner’s voting rights. At another time it might have contributed to a more rational debate on the relationship between UK law and the European legal systems. But on prisoner’s voting rights and the related consitutional issues neither the current Government nor its predecessor has wreathed itself in glory. If it is this matter that prompted Lord Hoffmann’s recent intervention then that is indeed to be regretted. The European Convention, which the former judge appears to support, protects freedoms which are “the foundation of justice and peace in the world and are best maintained … by an effective political democracy”. If we expect those convicted of crimes to be reintegrated into society then the first step must be to ensure that they have a stake in it. Surely the only problem with this proposition is that it took a judgment of a European court to rectify what should be a matter of constitutional common sense.  So to return to the central point: it would be to both Britain and Europe’s detriment if UK cases could no longer find their way to the European Court of Human Rights. The Convention would be diminished if skilled advocates trained in the common law system no longer appeared before the European Court. But Britain has also benefitted from such cases – for example when the Court corrected some of the UK’s many excesses during the Troubles. The answer to differences over human rights in particular and constitutional government in general is not to withdraw from the conversation but to engage in it.