Conservative promises to curtail the power of the European Court of Human Rights is a ‘car crash’ waiting to happen

The recent Cabinet reshuffle has renewed speculation that the Conservative Party are committed to repealing the Human Rights Act 1998, and potentially withdrawing the UK from the European Convention on Human Rights (ECHR) altogether should they win the next general election.

Though Downing Street has rejected any suggestion that the purpose of the reshuffle was to remove internal opposition to its plans, the prime minister is largely expected to make a weakening of the influence of the Strasbourg Court on UK legislation a flagship policy to attract right-leaning voters.

Amid predictions of a so-called ‘British Bill of Rights’, the justice secretary, Chris Grayling, has stated that, if in power after the coming election, a Conservative government will curtail the role of the court in the UK and replace the Human Rights Act 1998.

“We will have a balance of rights and responsibilities in our law, which I think is very important, and we will have a Supreme Court that is supreme,” said Grayling. “That gives a very clear sense of direction, of the big change which is what I think we need.”

This ‘change of direction’ suggests that the Conservative’s intend to chart a course away from theECHR.

Tearing up tradition

However, the recently deposed attorney general, Dominic Grieve, told The Times: “What actually is being suggested is not that we will leave the ECHR, but that what we will do is pass primary legislation to use parliament to prevent the government from implementing its international obligations, except when parliament rules when we should.

“The inference is that when the UK government doesn’t like something that the court has done it’ll just use parliament to not implement what it has signed up to. It is not dissimilar from Putin using the Duma to ratify his annexation of the Crimea.”

Before his removal, Grieve warned his Cabinet colleagues that exiting the ECHR was a plan for “a legal car crash with a built-in time delay”. The former attorney general argued that it was an “incoherent” policy to remain a signatory to the ECHR but to refuse to recognise the rulings of the court which enforces it.

Grieve has admitted that he may have lost his ministerial post as a result of this advice. “It’s certainly possible,” he said. “It’s been a subject of discussion. It wasn’t the reason given to me by the prime minister, but there’s certainly been quite a lot of background to this over some time.”

Deputy prime minister, Nick Clegg, spoke out against Grieve’s dismissal and launched an attack on his coalition allies in which he accused the prime minister of supporting “Putin and other tyrants around the world by tearing up our long tradition of human rights”.

Meanwhile, Labour’s shadow justice secretary Sadiq Khan has called on the government to publish Grieve’s advice: “It is now clear that David Cameron sacked Dominic Grieve as he didn’t like the advice he was receiving from an experienced lawyer who knew that the Tory’s half-baked plans would leave our international standing in tatters.”

An absurd debate

Grieve was not the only Conservative to lose out in the Cabinet reshuffle who held positive views on human rights. Former foreign secretary William Hague commented in 2011 that the government would always support human rights as it was at its “irreducible core” and was “a part of our national DNA”.

Although Ken Clarke resigned from the Cabinet of his own volition, he shot off a strongly worded warning to his party: “I personally think it is unthinkable to leave the ECHR. It is the way we uphold the values we strive for which are the rule of law, individual liberty, justice for all, regardless of gender. The convention is the bedrock of that.”

Clarke added: “A slightly absurd debate takes place in this country. We are occasionally taken to the European Court in Strasbourg but we win 98 per cent of the cases because of our human rights record. We only lose 2 per cent of cases and all these mad mullahs that the press love to vilify and blame for our terrorist problems – which is a somewhat uncomplicated way of analysingthe situation – are thought to win in Strasbourg. Well, we have won all the cases in Strasbourg.”

The European referendum

Professor Gavin Phillipson, of Durham Law School, believes that the Conservative’s plans are just wishful thinking. “Looked at as a matter of domestic law, these plans would be purely cosmetic,” said Phillipson. “Parliament is already able, as a matter of UK law, to pass laws that are contrary to the ECHR or judgments of the Strasbourg Court.”

He continued: “But if the Tories are talking about removing the international law obligation of the UK to comply with judgments against it by Strasbourg that is pie in the sky. The British government would have to persuade all the other 47 signatories to the European Convention to remove article 46 of the Treaty, which binds states to abide by judgments of the Strasbourg Court against it. That is simply not going to happen, because it would tear the heart out of the Strasbourg system for protecting rights, and open the door to authoritarian states like Russia simply to disregard any judgments against them they don’t like.”

Phillipson contends that it is an absolutely basic principle of the rule of law that governments can’t pick and choose whether and when to comply with judgments of a court. “Dominic Grieve understood this – which is why he had to go as attorney general. Whether the UK withdraws from the ECHR depends ultimately on the result of the referendum on membership of the EU, planned for 2017 under a Conservative government.

“If the UK votes to stay in the EU, then we almost certainly can’t withdraw from the ECHR – signing up to it is a condition of joining the EU. But if we vote to leave the EU that would also clear the way for withdrawing from the Convention.”

Holding the executive to account

Yogi Amin is a partner and the national head of public law and Roisin Horan is a trainee solicitor at Irwin Mitchell

“The main political parties’ stance on human rights appears to be that some reform is needed amid concerns that the Strasbourg court is infringing upon parliamentary sovereignty and should have its power curtailed. There is, however, no unified position from the coalition government on how such reform should be achieved.

“The Conservative Party has suggested that the Human Rights Act 1998 (HRA) be replaced by a UK Bill of Rights. The detail of this is yet to be put forward in any clear policy, but reported proposals include parliament deciding whether to be bound by judgments on a case by case basis. It is difficult to see how politicians could uniformly apply the rule of law in such a system. It is incongruous to suggest that a parliamentary decision can reliably be challenged before the court if parliament has the power to set aside the decision.

“The domestic courts have been sensitive to this struggle and Lord Reed suggested that we should ‘have confidence in our own case law’ rather than looking to the international court (see Faulkner v Parole Board [2013] 2AC 254). The UK has the benefit of a robust common law which protects the fundamental rights of individuals. Undoubtedly, the courts have been more willing to recognise breaches of human rights following the implementation of the HRA, but if it were to be repealed, it is not clear whether domestic judges would have the confidence to enforce these rights without reference to the ECHR.

“If the UK remains a signatory to the ECHR, individuals would presumably still have the right to petition the Strasbourg court, though the value of any judgment would depend upon the will of parliament. There is also the EU Charter of Fundamental Rights and international legislation which will continue to be utilised by claimants. The difference is that the HRA helpfully directed the domestic courts to take account of the ECHR though this does amount to the domestic courts being bound by the court’s judgments.

“In R (Nicklinson) v MoJ [2014] UKSC 38, Lord Mance summarised that ‘while the legislature is there to reflect the democratic will of the majority, the judiciary is there to protect minority interests, and to ensure the fair and equal treatment of all’. The UK has a wealth of domestic legislation and international obligations which can be relied upon in domestic courts to protect minority interests. But to reduce the enforcement capabilities of the Strasbourg court is the start of a worrying decline in the ability to hold the executive to account.”

This blog was first published in the Solicitors Journal on 25 July 2014 and is reproduced with kind permission.