27 February 2014

Courts should feel free to disagree with judicial critics of the human rights convention, a senior serving judge will argue on Wednesday evening. Delivering the John Creaney memorial lecture to the thinktank Policy Exchange, Lord Justice Moses points out that he and other judges are free not to follow the opinions expressed in recent lectures by members of the UK's highest court.

"Each of us has an independent view," Moses says. "The others do not speak for us."

Though he takes pains to include judicial fans of the human rights court – Lord Mance and Lord Dyson, for example – in what he calls his "trudge through the foothills of the debates", Moses directs most of his arguments towards the court's critics.

Referring to the lecture given by Lord Hoffmann a month before he retired as a law lord in 2009, Moses accuses Hoffmann of picking three Strasbourg judgments and "masking" his opposition to the result of each case "in the trappings of high principle".

The appeal judge says that Hoffmann's speech has been used – in Britain and other European countries – as if it had been an authoritative decision by a court rather than just a lecture by a judge. And Hoffmann's lead had been followed by other serving judges. Moses quotes the lecture given in Kuala Lumpur last November by Lord Sumption, a supreme court justice, who said the Strasbourg court "has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying".

Speeches by Hoffmann, Sumption, and Lord Judge, the former lord chief justice, have been relied on by Chris Grayling, the justice secretary, in support of his calls for reform of the UK's relationship with the human rights court. Moses says it's not yet clear what Grayling wants to do away with. But the appeal judge believes that domestic courts are interpreting the human rights convention in a way that "may not be as restricted as hoped, or feared (depending on your point of view)".

As an example, Moses refers to the court of appeal decision last week upholding whole-life tariffs for murderers. This, he says, "shows our law is not inconsistent with Strasbourg's view of the convention, contrary to popular superstition, and that a whole life sentence is always subject to the possibility of release before death".

Seeking to explain why so many judges have spoken about human rights recently, Moses says it's an issue that's far from straightforward. In what may be seen as an attempt to forestall criticism of his own lecture, he goes on to say that "judges mask their views, some more successfully than others, in reasoned analysis for fear of being accused of political controversy". He comments: "They leave the protagonists to pick and choose a juicy sound-bite."

But then he offers just that: "The protagonists for reform do not often speak of the effect of the UK's withdrawal from the court on our relations with our European neighbours; the withdrawal of our engagement with the protection of the rights of others in countries where even the most insular might think our influence could be for the good."

Moses says that speedy extradition from one EU state to another relies on respect for their legal systems. "We trust such member states and they trust us because they apply [human rights] convention standards."

He believes that most of his fellow judges, fearing the consequences of engaging in political controversy, avoid discussing the loss of the UK's international reputation that would result from undermining the Strasbourg court. But not all: Moses quotes Justice Sales as saying that "it would severely damage the moral standing and international prestige of any state in the Council of Europe and would tend to undermine the Council of Europe and the convention if it failed to respect a judgment given against it by the [human rights] court".

Moses has a reputation for taking judicial independence almost to the point of insubordination. Perhaps with that in mind, he says that judges' lectures, like court decisions, "can be cited for any proposition you may care to advance". But that ambiguity is a matter for optimism, not despair, he insists: "ambiguity gives scope for compromise". Judges must remain independent and, through that, do justice.