In or out?
Lecturer in Law in The City Law School, Dr John Stanton, says pulling out of the European Convention on Human Rights (ECHR), should not be an option.
Prime Minister David Cameron has recently announced that he will not rule out the ‘nuclear option’ of withdrawing from the ECHR to assist in the deportation of foreign criminals. The Cameron administration is determined to ensure that UK’s highest court remains the ‘ultimate aribiter of human rights’.
As the United Kingdom celebrates the 800th year of the Magna Carta this month, Dr Stanton, a constitutional law expert and the author of 'Democratic Sustainability in a New Era of Localism' (Abingdon, UK: Routledge-Earthscan), considers the establishment of the European convention as having paved the way for a collective attitude toward rights protection and honouring individual freedoms in post-war Europe. He adds: “The 1998 Human Rights Act is a carefully and meticulously drafted instrument which seeks to incorporate the ECHR into domestic law while retaining and preserving – as best it can – the relationship between the various institutions of the state. That said, it is not without its problems and over the years it has been criticised by many for the nature of its settlement between Strasbourg and the UK.”
Dr Stanton believes that suggestions carried in the news media about the Human Rights Act leaving UK citizens without adequate legal protection are somewhat exaggerated:
“Though it would alter the nature of rights protection in the UK, it would also – legally speaking – return the UK to a position it adopted up until the 1st October 2000. Up until the 1998 came into force, cases for breach of the ECHR could be taken to Strasbourg and this would remain the case provided we did not withdraw altogether from the Convention. Despite all of this, I am sceptical. The Human Rights Act is a fundamental part of our modern constitutional make-up and the nature of the rights protection it affords has been carefully established on the foundation of the UK’s peculiar constitution. A new Bill of Rights might, in some regards, be welcome – particularly to rectify some of the 1998 Act’s problems. We need to be clear, though, that it will – at most - carefully tweak the relationship with Strasbourg rather than effect any separation.”
Professor Dan Wilsher, who specialises in immigration and EU Law, points out that the UK assisted in drafting the ECHR but did not pass laws to allow UK judges to directly apply the convention. Professor Wilsher says individuals could still sue the Strasbourg court, however, and the UK had to regularly defend itself - “a costly waste of time and effort”. Against this fractious backdrop, Professor Wilsher says “the Human Rights Act ended that anomaly by giving the primary decision to our judges. The UK courts apply the Convention but are free, within certain limits, to shape its application to meet the UK’s own situation. For the most part, the Convention has meshed well within the UK legal system. Repealing the Human Rights Act would cause us to revert to the old position and see more cases brought to the Strasbourg court.”
By staying within the Convention system, Professor Wilsher believes that the UK is committed to obeying that Court’s decisions - though there is no power to compel the compliance of UK courts. The UK, he points out, also retains the option of non-compliance which it has exercised in relation to the Court’s invitation to reconsider the ban on votes for prisoners.
Professor Wilsher says “the final option of leaving the Convention would seem excessive given that countries like Russia and Turkey, also signatories, receive far more damning, inconvenient and domestically awkward decisions from the Court. The UK, as a mature liberal democracy like France and Germany, should be able to cope with the relatively rare difficult cases raised by the Convention.”
This is an international agreement set up by the Council of Europe in 1950 to protect human rights. The European Commission for Human Rights and the European Court of Human Rights were established under the Convention.