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The European Convention on Human Rights – Should the UK stay or leave?

Summary

Posted 4 January 2015. Appendix added 2 April 2016. Updated 14 November 2016.

On 29 January 2013 I attended a Carlton Club Political Committee seminar where Anthony Speaight QC and Jonathan Fisher QC spoke on “A UK Bill of Rights and the Reform of the Strasbourg Court.” Both of them had been members of the Commission on a Bill of Rights established by the Government in March 2011.

The Commission had recently published its report on 18 December 2012, and all participants in the seminar were allowed to take a free copy of the two volume report “A UK Bill of Rights? The Choice Before Us”.

Despite the best of intentions, I did not get round to reading the Report until December 2014. However when I did so I found it very readable, and extremely illuminating. The comments below are primarily based upon reading the Report, aided by my slightly fading recollection of the discussions at the seminar.

Overview of the Report

Obtaining a copy

The consolidated UK Government website Ministry of Justice section no longer seems to have a page for the Commission. However details about the Commission are on the National Archives web archive.

Volume 1 – This comprises the key text of the Report and also has papers from individual members written in their personal capacities.

Volume 2 – This comprises various annexes.

Table of Contents

The best way to get an overview of the Report is from the table of contents.

Volume 1

Letter to Ministers

Terms of Reference

Our Approach to Our Work

Overview

Chapter 1: The Commission and its Work Programme

Chapter 2: The Constitutional Background to our Inquiry

Chapter 3: What is a Bill of Rights?

Chapter 4: The International Landscape of Human Rights

Chapter 5: The European Landscape of Human Rights

Chapter 6: Human Rights in the UK

Chapter 7: Arguments for and against a UK Bill of Rights

Chapter 8: The Language of Rights, Additional Rights, and Responsibilities

Chapter 9: Devolution and a UK Bill of Rights

Chapter 10: Promoting a Better Understanding of the UK’s Obligations under the Convention

Chapter 11: Further Reform of the European Court of Human Rights

Chapter 12: Conclusions

Individual Papers from Members

Volume 2

Annex A: Organisations and individuals with whom the Commission met

Annex B: The Commission’s Interim Advice to Government on Reform of the European Court of Human Rights

Annex C: The Chair’s letter to Ministers on Reform of the European Court of Human Rights

Annex D: The Commission’s Discussion Paper, Do we need a UK Bill of Rights?, August 2011

Annex E: The Commission’s Consultation Paper, A Second Consultation, July 2012

Annex F: List of Respondents to the Commission’s Discussion and Consultation Papers

Annex G: Consultation Summary

Annex H: Examples of Bills of Rights

Annex I: The European Convention on Human Rights

Annex J: The Human Rights Act 1998

Terms of Reference

The terms of reference for the Commission were of course set by the Government, and were as follows:

"[to] investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

It should provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg Court ahead of and following the UK’s Chairmanship of the Council of Europe.

It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.”

It is clear that some of the members of the Commission, and some of the people responding to the consultation documents, felt constrained by the first paragraph which is predicated on the UK continuing to be a party to the European Convention on Human Rights (ECHR) when there are some, perhaps many, people, who would prefer the UK to withdraw from the ECHR.

My comments on the Report

The Report is very easy to read and provides an excellent background to understanding the ECHR, the existing UK law in The Human Rights Act 1998, and the issues around the European Court of Human Rights, which has built up a backlog of around 160,000 cases.

Accordingly I recommend reading Volume 1 which is 277 pages in full, and skimming through Volume 2, some of which merits reading in full while other parts (such as the full text of the ECHR and of The Human Rights Act 1998 need only be dipped into depending upon the level of the reader’s interest in the issues.)

As explained above, the Report does not address the issue of whether the UK should continue to adhere to the ECHR or withdraw by giving the six months’ of departure notice specified in the ECHR, since that would be outside the terms of reference. However a number of respondents to the consultations did give their views on this issue.

My views on whether the UK should withdraw from the ECHR

Reasons for wanting to withdraw

Over the years I have read many arguments in favour of withdrawal. As memory can be unreliable, I have searched the internet for such arguments while writing this page.

In particular, David Morrison’s Huffington Post article of 15 October 2014 “Will a Conservative Government Withdraw From the European Convention on Human Rights?” links to a Conservative Party document “Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws” published on 2 October 2014 which puts forward a number of arguments against the ECHR in the form of proposals for UK legislation which David Morrison and the Council of Europe (which he cites) consider incompatible with the ECHR.

Deporting foreign criminals

The Telegraph website has a clip from David Cameron’s Sunday 29 September 2013 interview on the Andrew Marr show where he indicated that withdrawal from the ECHR may become necessary to ensure that the UK can deport foreign criminals.

The European Court of Human Rights approach to interpretation

At the Carlton Club seminar, I recall the one of the speakers explaining that there are two approaches that can be taken by a court when interpreting a document:

  1. To interpret the text as a “living instrument” whose meaning can change over time. This is for example how the US Supreme Court interprets the US Constitution, so words that have not been amended since they were first included in the Constitution may be interpreted quite differently in 2015 than they would in, say, 1800.
  2. To interpret the text as it would have been interpreted at the time that the contracting states signed the Convention.

Jonathan Fisher QC has written a very informative paper “Rescuing human rights” published by the Henry Jackson Society which discusses this issue in some detail. His view, and the view of the Conservative Party document, is that the European Court of Human Rights has fundamentally erred by adopting the first approach above to interpretation.

Prisoner voting

The UK has a blanket ban which prevents all prisoners serving time in jail from voting. The European Court of Human Rights ruled in 2006 that a blanket ban is unlawful. However successive UK Governments have been unwilling to move away from the present blanket ban and instead implement the system of other European countries where some prisoners are allowed to vote and others are not, depending upon criteria such as the crime committed or the length of the prisoner's sentence.

This conflict between UK Government and the European Court of Human Rights is presently unresolved, with the UK Government being in breach of its obligations under the ECHR by continuing to ignore the Court’s decision.

A desire to restore Parliamentary sovereignty

The Conservative Party document makes it clear that it wishes the UK Parliament not to be bound by decisions of the European Court of Human Rights. Since that is incompatible with the text of the ECHR, it would require withdrawal.

Reasons for continued membership

There is a paper “In Defence of Rights” by Baroness Kennedy of The Shaws QC and Professor Philippe Sands QC which is included in Volume 1 of the Commission report and listed in the table of contents above, which eloquently sets out some of their reasons for supporting continued membership of the ECHR.

My own view is that the European Court of Human Rights does need further reform, since it is ridiculous and unacceptable for it to have a backlog of around 160,000 cases. Procedures are needed to stop trivial cases reaching the Court, and for faster dismissal of cases that stand no chance of success. The Commission’s papers on the reform of the Court included in both Volume 1 and Volume 2 go into much more detail on this.

However I have no doubt that the UK should remain a full member of the ECHR exactly as it is now. The key reasons why I believe this are set out below:

National sovereignty is not necessarily desirable

In many cases, national governments are not benign actors. That is true of many foreign governments, and sadly on too many occasions it has been true of the UK Government. While there have not been many cases where the UK Government has been found by the European Court of Human Rights to be in breach of its obligations under the ECHR, they have occurred too often for me to be satisfied that my human rights are safe in the hands of the UK Government.

I am personally reassured by the fact that at present there is a supranational European Court of Human Rights which is able to over-rule the UK Government on matters concerning human rights as set out in the ECHR.

I am not reassured by the idea of incorporating the text of the ECHR into UK law and then making the UK’s Supreme Court the final court of appeal. No Parliament can bind its successors, and once my human rights are protected only by UK statute law, a future Parliament can easily take them away.

This objection would fall away if, like most countries, the UK had a written constitution which was entrenched so that, like the USA constitution, it was very hard to amend, and with a Supreme Court that was able, like the USA Supreme Court, to strike down legislation that was incompatible with the UK’s entrenched written constitution.

The UK would be setting a terrible example

The UK probably contributed more to the creation of the ECHR than any other country. See the “Context” section in the paper by Baroness Kennedy QC and Philippe Shaw QC mentioned above. It would send a terrible message to other European countries, and indeed to all mankind, about the UK’s attitude to human rights and the rule of law if the UK Parliament were to withdraw from the ECHR so that it could legislate as it wished without any international constraints.

The idea that other countries cannot be trusted to preserve human rights, which is why they need to be members of an international treaty (the ECHR) with an international court, while the UK Parliament is so virtuous that it is above needing such constraints is utterly laughable.

Appendix: How the ECHR has helped UK citizens

I recently met the Chief Executive of the Equality and Diversity Forum, a national network of equality and human rights organisations. They have set up Equally Ours as a campaign to talk about the importance of human rights and how they benefit us all in everyday life.

Their website gives a number of examples where historical domestic UK law failed citizens, who had to rely upon the ECHR or upon its enactment into UK law in the Human Rights Act 1998.

 

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