Robert Buckland is MP for South Swindon, and is a former Secretary of State for Justice and Lord Chancellor.
There can be no doubt that Vladimir Putin’s invasion of Ukraine is a naked act of aggression. The people of Ukraine, over 12 million of whom have been forced to leave their homes, have endured nearly three months of shelling, bombing, separation from loved ones, loss of homes, loss of livelihoods and most tragically, loss of lives.
Heartbreakingly, they are set to endure more still, with no peace agreement in sight, and no apparent sign of Putin making any concessions, despite his increasingly isolated position on the world stage.
The International Court of Justice has ordered Russia to “immediately suspend” its military operations in Ukraine. The International Criminal Court Prosecutor, Karim Khan, has opened an investigation into the conflict, saying that he has reasonable grounds to believe Russia has committed war crimes.
And the Council of Europe – the continent’s leading human rights organisation and home to the European Convention on Human Rights – has expelled Russia, after 26 years of membership.
During recent months, Putin has shown a blatant disregard for international law and disdain for the rights of his citizens at home. The West and its rules-based order has been branded an illegitimate “empire of lies”, with domestic dissenters cast as “traitors” who need to be purged through a “self-cleansing of society”. Chilling, to say the least.
None of his actions or rhetoric have occurred in a vacuum, however. The suppression of independent media, already muzzled in the early years of his regime, became all-consuming after his illegal annexation of Crimea in 2014.
At the same time, Putin consciously began decoupling the Russian legal system from the laws and principles set out by the European Council. This first manifested in occasional high-profile cases, in which Russian Courts would ignore precedents outlined by the Council of Europe and the European Court of Human Rights in Strasbourg.
By 2015, a new law gave Russia’s Criminal Court the ability to ignore Strasbourg judgments on human rights if they conflicted with Russia’s Constitution, and by 2020 Putin had signed a decree into law that declared Russian law to be supreme over international norms.
The decoupling from western institutions and rejection of international law strengthens the Kremlin’s power and authority, but it is an authority that is increasingly having to be manufactured, rather than genuinely earned. Even nominally democratic events such as the referendum validating Putin’s 2020 constitutional amendments were littered with corrupt practices, with Russians enticed to vote by the offer of free smartphones or apartment blocks, and given the choice of only yes or no in ratifying 206 separate proposals.
Whilst Russia’s expulsion from the Council of Europe sent a clear message to the Kremlin that their illegal invasion was not going to be accepted by the international community, it has left the Russian people even more exposed to the whims of a despotic and increasingly paranoid regime.
As a result of the Russian expulsion, they are no longer protected by the European Court of Human Rights, and the many thousands of Russians who have lodged appeals to the European Court (just under one in four of all cases) are left in legal purgatory. On top of this, there is also now a very real chance Russia could reinstate capital punishment – recently described by Dmitry Medvedev, the country’s former president, as “a good opportunity.”
The European Court of Human Rights has often been the subject of criticism here at home, but it is a force for good in the world and I strongly believe that the UK should remain a party to the Convention that it oversees.
It is always worth remembering that British lawyers drafted the Convention before its adoption in 1950. Britain has led the way on the protection of fundamental rights and freedoms. The unprovoked and unjustified attack by Russia on Ukraine underlines more than ever how important it is to safeguard fundamental human rights and freedoms, across Europe and the world.
I was pleased therefore to see the Government confirm their intention to update the Human Rights Act and to reaffirm that remaining in the Convention remains Government policy. It is vital that, in the current context of war in Europe and a direct threat to our values, Britain retains its leading role in the defence of fundamental rights and freedoms. I welcome Britain’s firm and continuing support of the work of the International Criminal Court in its investigation of Russia’s military actions in Ukraine.
The work of the Independent Review of the Human Rights Act, set up by me as Lord Chancellor to consider the case for reform and chaired ably by Sir Peter Gross, provided a thoughtful, comprehensive and stable platform for change.
I am not convinced, however, by calls for a “Bill of Rights” to entirely replace the 1998 Act. I am concerned that, in trying to make a political point about the primacy of our own laws, which I entirely agree with, the Government risks creating more uncertainty but giving rise to a new set of rights, with their meaning being determined by domestic courts in a way that will only increase the tension with Parliament, rather than reduce it.
Many of the problems that the Government has identified as a reason to reform the Human Rights Act cannot be solved purely domestically anyway, and some of the solutions proposed could actually make things worse, by increasing the number of people in the UK who feel the need to go to the European Court.
More importantly, proposals that would enable the UK Parliament to disregard European Court rulings and define Convention rights as something other than the Court, as ultimate arbiter, itself determines, sends entirely the wrong message about the UK’s support for and commitment to international law.
The Government would be better advised to implement the Gross recommendations and codify the recent approach being taken by the Supreme Court, which has made it clear that the rights contained within the Convention do not have an autonomous meaning in our domestic law and that it is not for the Courts to, in effect, “gold plate” these fundamental rights.