Quitting the European Court of Human Rights: “Worth a Try”
By way of a footnote to my article in The Independent on Sunday about David Cameron’s trouble with the European Convention on Human Rights, I have had second thoughts.
It occurred to me after the newspaper went to press last night that the Prime Minister could escape the crash for which he seems to be setting himself up. He could draw up his “British Bill of Rights” – in effect, to rewrite the Human Rights Act 1998 – to try to limit the latitude with which British judges can interpret the Convention. This could be sold to the Liberal Democrats and Kenneth Clarke (above) as strengthening human rights law.
Then, at the next election, he could say that a Conservative government would seek to renegotiate the remit of the European Court of Human Rights and, if that fails, to withdraw from it – but neither to repudiate the Convention nor to withdraw from the Council of Europe, which supervises it. This is the course suggested earlier this month by Michael Pinto-Duschinsky in his paper for Policy Exchange.
It would mean simply reversing the decision taken in 1965 – without discussion “in either the Cabinet or any cabinet committee” (Pinto-Duschinsky, p11) – to give individuals the right to appeal to the Court.
Pinto-Duschinsky goes on to say (p13):
Contrary to what has been stated by some opponents of such a reform, it is our conclusion that there is strong evidence to suggest that the UK’s membership of the European Union and of the Council of Europe does not require continued adherence to the judgments of the European Court of Human Rights should the UK opt for such a withdrawal.
And Lord Hoffmann, who as I say in my article has been a surprising opponent of the Court since retiring as a Law Lord in 2009, endorses him:
The situation is not so hopeless and there are means by which, with sufﬁcient support from other states in the Council of Europe, we can repatriate our law of human rights. It is worth a try.
(Although a political strategy ought perhaps to be based on firmer ground than “worth a try”.) The danger for David Cameron is that making this an election issue in 2015 might allow the Conservatives to be retoxified as obsessive anti-Europeans. I do not think so: as I say, the climate is changing, with not just Lord Hoffmann but Tony Blair, Jack Straw, Charles Clarke and John Reid all agreeing that something should be done.
The possible advantages for the Tories are more obvious: the European Court (and the way Convention rights have been interpreted by British courts) is unpopular, and at the election the Lib Dems need not be such a constraint.
Despite the Grade II Listed leak to The Times of the Government’s legal advice suggesting that it could get away with not paying compensation to prisoners, a strategy of delay and obstruction could not be sustained for ever. But it could easily keep the Coalition going until 2015.
So it was irritating to see James Forsyth, in his indispensable Mail on Sunday column (scroll down) get there before me:
As one Tory told me: “A majority Tory Government would now probably take us out of the Convention* full stop.”
But that simply isn’t an option with the Liberal Democrats also in government.
Two further points:
1. None of this has necessarily to do with the merits of recent cases decided with reference to the Convention. I think it is wrong that prisoners should be allowed to vote, but right that people should be allowed to appeal against being put on the sex offenders’ register. The issue is by whom such questions should be decided.
2. The most powerful argument against withdrawing from the European Court of Human Rights is, as the Government’s lawyers argue, that
our ability to press other states to implement human rights judgments (eg Russia on Chechnya) would be completely undermined. So would our broader international dialogues on human rights with countries like China.
I don’t agree. The idea that Russia or China respect the human rights of minorities because they are lectured from the high moral ground of excessive compliance with the “living instrument” doctrines of judge-made supranational law by the British government is absurd.
*As explained by Pinto-Duschinsky, withdrawal from the Court would not necessarily require repudiation of the Convention.
PS. Forsyth had an excellent and related story in last week’s Mail on Sunday, that Oliver Letwin, the Cabinet Office trouble shooter (“If you turn up to a meeting and Oliver is there, you know things are bad“), has “told colleagues he thinks Britain should leave the European Union if it won’t give us all the opt-outs the Government wants”. (Although the apparent assumption of the report, that Letwin and Steve Hilton, the Prime Minister’s adviser, had been Guardian-reading Brussels-lovers until tested by the adversity of government, is hokum. Letwin and Hilton – not to mention Cameron himself – have long been pretty hard-line opponents of EU federalism. Forsyth corrects that this week, describing Hilton as “a fierce Eurosceptic”.)Tagged in: echr, human rights law
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