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A “Right of Rebuttal” against Strasbourg?

John Rentoul

DominicGrieve 1496991c 300x187 A Right of Rebuttal against Strasbourg?Dominic Grieve, the Attorney General (right), gave an important speech last night on reform of the Human Rights Act and the Government’s plans to reform the European Court of Human Rights. On 7 November, the UK takes the chair of the Committee of Ministers, the governing body of the Council of Europe, which supervises the Court.

He supported an emerging legal doctrine that the Strasbourg Court should reserve itself for the most outrageous cases (not least because its backlog has now reached 160,000 cases), and let national courts do most of the interpreting of the Convention:

The [European] Court [of Human Rights] should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention …

The principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation.

He quoted Lord Judge, the Lord Chief Justice, in his evidence to the Lords Constitutional Committee last week:

I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win. I think for Strasbourg … there is yet a debate to happen; it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act, when it said the courts in this country must take account of the decisions of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight in most cases, obviously we would follow them, but not, I think, necessarily.

Grieve commented:

We would therefore benefit from better definition of the very important relationship between the national courts and Strasbourg. Had we wished, in 1998 [when the Human Right Act was passed] the UK could have made it clear that the national courts must follow the jurisprudence of the international court and adopt an approach similar to our implementation of EU law under the European Communities Act 1972 and allow the courts to strike down primary legislation. We specifically chose not to do so.

If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture [pdf], which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.

Whether this will restrain the judicial activism of the Strasbourg Court, I do not know, but, to quote Lord Hoffman, it is worth a try.

Photo: ANDREW CROWLEY

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  • ARealJournalist2

    >>Dominic Grieve, the Attorney General (right), gave an important speech last night on reform of the Human Rights Act and the Government’s plans to reform the European Court of Human Rights during its chairmanship, starting on 7 November, of the Committee of Ministers, the governing body of the Council of Europe, which supervises the Court.

    You need somebody to edit your chaotic ramblings before they go onto the website.

  • Guest

    ‘The [European] Court [of Human Rights] should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention …’

    I thought this was already the case. In the instance of the right of prisoners to vote, can governments not limit the categories of prisoners who may vote, excluding the rights of prisoners convicted of committing serious crimes?

    As far as restraint of judicial activism is concerned, it was not Our Masters in Strasbourg who attempted to impose a 90-day detention period for terrorist suspects. Nor was it Our Masters in Strasbourg who introduced stop-and-search legislation which led to police officers questioning citizens and even confiscating film for taking photographs in public places. That was down to Our Democratically Elected Representatives in Westminster.

    As for yesterday’s brouhaha, I wonder why media interest has concentrated on the bloody nose which 81 Tory rebels dealt Dave, completely ignoring the fact that 19 Labour rebels also defied a three-line opposition whip in giving Ed’s schnozzle a jocular tweak?

  • RodericLofthouse

    What right of rebuttal is there for false statement to Parliament that the Attorney General gave with regards to an inquest into the death of Dr david Kelly?

    None!

  • TarquinBroxted

    My dear Mr Rentoul, I do believe you are sniping from behind the sandbags, rather as my late Grandfather did in 1918 but with less success. Your Blair-Brown years led to the (so called) Supreme Court as you were losing so many cases at a European level. Adopting a fancy American name means nothing in a nation like Britain with NO Constitution. To paper over the cracks the ECHR is used as a whipping boy. You lost with S & Marper vs South Yorkshire Police yet after almost THREE years the retention of innocent folks DNA is standard. 90 day internment without trial was another non runner. One could go on but (in essence) Strasbourg is the last safeguard against the excesses of ZaNuLabour and the Tories (Freedom of Protection Bill anyone?) For the far left if the UK pulls out it is a Win Win situation, no more “meddling” means the targetting of judiciary and police. Continued “meddling” means that we may not have to put up with so many deaths in custody.

  • http://www.facebook.com/people/Adam-Snow/886670281 Adam Snow

    I feel this comment may get lost in the normal dross of commentors that bang on about TB, Iraq or Kelly.

    But I would love to see a legal and workable definition of “outrageous cases” in many ways leave to appeal is what you want, similar to appeal to the supreme court, a matter of clear public interest in the matter and significant legal issue.

    But I get the impression that “outrageous cases” means decisions we don’t agree with, and let’s not forget that it is not just Strasbourg judges that have rather bizarre views about rights and freedom.

  • ZacMurdoch

    Actually, it’s a perfectly literate and accurately punctuated sentence, even if rather long.

    Now, if we’re talking of chaotic ramblings. . .

  • ARealJournalist3

    It would have been considerably clearer if it had been split up into two or more sentences.  Rent-a-tool obviously realised this, since he has subsequently changed the text.


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