Rights and wrongs
The BBC's Political Editor Nick Robinson had an interesting report this morning that the Conservatives are planning - should we form the next government - to pass a Bill to allow Parliament to override a decision of the European Court of Human Rights (ECtHR), although Britain would aim to remain a member of the Council of Europe and a party to the European Convention on Human Rights.
I was interviewed about this on the Today programme this morning (1:09:05) and said this:
"What Britain would be saying to the Council of Europe, of which we are a party, is: ‘Look, we want some kind of democratic override, or we would leave, but we would rather not do that'. I’m not sure that there will be a lack of support, actually, for that position with other countries, and I think we have to accept that the current system is not working properly at the moment. There are thousands of unimplemented judgments across Europe, principally in countries like Russia.
"I don’t think there is anything to fear from saying, why don’t we apply the important principles of the Convention on Human Rights that Britain had a hand in drafting, and nobody disagrees with those principles - you shan’t be tortured and so on - why can’t we apply those in our domestic courts? We have a Supreme Court now: let it be supreme and let Parliament be the final arbiter and take full control over these matters."
Concern about the current arrangements is exemplified by the issue of prisoner voting. Even when our own Supreme Court and Parliament disagree, the ECtHR has insisted that prisoners should have the vote. The Court has invented a 'right to vote' when none existed in the original Convention, an example of how it has treated the Convention as a 'living instrument'.
Our Parliament is sovereign: we can make or unmake any law we like, but we are required to agree with the ECtHR because we have a Treaty obligation under Article 46(1) of the Convention: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” As Anthony Speaight QC has written, in a very interesting paper for the Government's Commission on a Bill of Rights (Final Report, Volume 1, p.236):
" ... for the UK or any other state deliberately to resolve not to implement a final judgment would involve a conscious decision to break a treaty."
Unless the European Council agrees to amend the Treaty, we would ultimately have to resile from - 'denounce', to use the technical expression - the ECtHR. I have argued that this is the course we should take.
Nick Clegg's response today, that the Conservative Party is lining up "with Vladimir Putin and other tyrants around the world by tearing up our long tradition of human rights", and that "the headbangers have now won" in the reshuffle, was risible. The argument that we need to remain under the jurisdiction of the ECtHR so that we can tell members of the Council of Europe like Russia to uphold human rights is, to say the least, problematic. Russia has around 1,000 unimplemented judgements of the Court, and has just invaded another member state, Ukraine. If the ECtHR is the way to persuade Russia to uphold human rights, it doesn't seem to be working. Indeed, the Secretary General of the Council of Europe has said that the rule of law in Europe is facing its most serious crisis since the end of the Cold War.
Nor is the Conservative Party alone in its criticism about the operation of the ECtHR. Earlier this year three of our country's most senior judges, including the recently retired Lord Chief Justice, Lord Judge, in different ways all stated their concern. Supreme Court Justice Lord Sumption said that the ECtHR “undermines the democratic process”. I blogged about this earlier this year.
Of course we could protect human rights outside the jurisdiction of the ECtHR with our own legal and parliamentary system. Australia, New Zealand and Canada, for instance, do not subscribe to a supranational court, yet maintain human rights. Nor is anyone proposing to resile from the fundamental rights set out in the Convention. The issue is how these rights are applied, and who has the last say.