The Conservative Party has proposed that the UK has a veto over decisions of the European Court of Human Rights (ECtHR) in Strasbourg, the body responsible for enforcing the European Convention on Human Rights (ECHR).
In a "strategy paper" entitled Protecting human rights in the UK, published on 2 October 2014, the Conservative Party said that, if they win a majority in next May's General Election, they will ensure that:
"The European Court of Human Rights is no longer binding over the UK Supreme Court.
"The European Court of Human Rights is no longer able to order a change in UK law and becomes an advisory body only."
There is a serious obstacle to this proposal, namely, that all signatories to the Convention - today there are 47 of them - are obliged under the Convention itself to abide by the decisions of the Court. Article 46(1) of the Convention states:
"The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties."
So, signatories to the Convention are not allowed to pick and choose which decisions of the Court they will abide by. They are obliged to abide by all of them; otherwise they are in breach of the Convention.
It could hardly be otherwise: a judicial system in which individuals or entities can veto any or all of the judgments to which they are parties is an absurd concept.
"We take note of these proposals by the Conservative Party. We also take note they are not draft legislation. As they stand, the proposals are not consistent with the ECHR."
Removing the UK's treaty obligation
Understandably, the Conservative paper does not mention the UK's obligations under Article 46(1) of the Convention. Nor does it state specifically that the UK will be in breach of the Convention if Court judgments are ignored. However, it does say that when individuals take the UK to the Court "resultant judgments of the Court will be seen to be binding on the UK as a treaty obligation", the treaty in question being the Convention.
A state's obligations under a treaty can be removed in one of two ways:
(1) by a state withdrawing from the treaty or
(2) by amending the treaty to remove the obligation, which inevitably requires the consent of every signatory to the treaty.
On the face of it, the paper rules out (1), saying:
"We would like the UK to remain a party to the Convention, as part of our membership of the Council of Europe."
The paper continues:
"We hope, therefore, that the Council will recognise these changes to our Human Rights laws. During the passage of the British Bill of Rights and Responsibilities [of which more later], we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention."
What does this mean in practice? That a Conservative Government would seek to persuade the Council of Europe to somehow remove the UK's treaty obligation to abide by judgments of the Court? But, unless the UK is going to withdraw from the treaty, its treaty obligation can only be removed by amending Article 46(1) of the Convention, for which the agreement of all 47 signatories is necessary. The Council of Europe cannot amend the Convention off its own bat.
While the paper doesn't say so explicitly, it seems to be asking that the UK alone be accorded a veto over Court judgments: other Convention signatories, for example, Russia, would still be required to abide by all Court judgments.
Needless to say, none of this is going to happen. The Convention is not going to be amended to allow the UK (or all Convention signatories) to ignore any or all of the judgments of the Court. As I said above, a judicial system in which individuals or entities can veto any or all of the judgments to which they are parties is an absurd concept.
Needless to say also, the authors of this proposal are fully aware that this is not going to happen. What then? According to the paper:
"In the event that we are unable to reach that agreement [with the Council of Europe], the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect."
On the face of it, the Conservative Party is now committed to the UK's withdrawal from the Convention - since amending the Convention to accord the UK a veto over the European Court's judgments is impossible.
Human Rights Act to be repealed
In the paper, the Conservatives also propose to repeal what they refer to as "Labour's" Human Rights Act. In this 1998 Act, the Labour Government put the European Convention on Human Rights into UK domestic law and enabled individuals to have their Convention rights enforced in UK domestic courts without having to take a case to the European Court of Human Rights. However, it continued to be open to individuals to do that if they wished.
In upholding an individual's Convention rights, Section 2 of the Human Rights Act obliges UK courts to "take into account" any "judgment, decision, declaration or advisory opinion of the European Court of Human Rights". This attempts to ensure that decisions by UK courts are in harmony with the superior European Court.
Under Section 4 of the Act, if the Supreme Court is satisfied that a provision in legislation is incompatible with a Convention right, it is empowered to make a formal declaration of incompatibility. The Supreme Court cannot strike down legislation, which it considers to be incompatible with the Convention: only Parliament can do that.
The Conservatives propose to repeal the Human Rights Act. Their primary objection to the Act is the Section 2 requirement that UK courts take into account rulings of the European Court when they are interpreting Convention rights. This means, they say, that "problematic Strasbourg jurisprudence is often being applied in UK law".
They propose to enact a British Human Rights and Responsibilities Act, which will also write the Convention into domestic law, but with significant qualifications to the meaning of some of the rights enshrined therein, for example, the paper says:
"We will set out a clearer test in how some of the inalienable rights apply to cases of deportation and other removal of persons from the United Kingdom. ...
"Our new Bill will clarify ... limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 [right to family life] to prevent the state deporting them after they have served their sentence. ...
"Some terms used in the Convention rights would benefit from a more precise definition, such as 'degrading treatment or punishment', which has arguably been given an excessively broad meaning by the ECtHR in some rulings."
These qualifications may become clearer in the draft bill which the Conservatives promise to publish "shortly".
Taken together with the fact that the Bill will not require UK courts to take into account rulings of the European Court, these qualifications make it inevitable that the judgments of the UK Supreme Court on Convention rights will differ to some degree from those of the European Court - which is, of course, precisely what the Conservative Party wishes to achieve.
In these circumstances, it makes no sense to maintain an individual's right to take a case to the European Court and potentially have a domestic judgment overridden. It makes sense therefore for the UK to withdraw from the Convention and, with that, from the jurisdiction of the European Court, in other words, to allow British courts to uphold the rights of British citizens as defined in the British Human Rights and Responsibilities Act, untrammelled by interference from the European Court. The alternative - that the UK continues to accept interference from the European Court, but be accorded the right to veto any interference it doesn't like - is an absurdity, which won't happen.
Will a Conservative government withdraw?
But will a Conservative government actually withdraw from the European Convention? It's very unlikely. There would be immense pressure from the Foreign Office not to do so.
How can the UK continue to preach to states around the world about the universality of human rights when the UK itself has withdrawn after 60 years from a human rights convention it helped draw up?
How can the UK seek to persuade states to submit to international systems of justice like the International Criminal Court when the UK itself has withdrawn from the jurisdiction of the European Court of Human Rights, because it didn't like some of its judgments?
Anti-European dog whistle
Whatever about that, the new Conservative "policy" is a useful anti-European dog whistle to help keep voters in the Conservative fold and out of the clutches of UKIP at next May's General Election. Lest there be any doubt that the new "policy" is first and foremost an anti-European dog whistle, listen to the following from David Cameron's conference speech a few days earlier:
"Of course, it's not just the European Union that needs sorting out - it's the European Court of Human Rights. When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you've got to apply the human rights convention even on the battle-fields of Helmand. And now - they want to give prisoners the vote. I'm sorry, I just don't agree. Our Parliament - the British Parliament - decided they shouldn't have that right.
"This is the country that wrote Magna Carta ...the country that time and again has stood up for human rights ...whether liberating Europe from fascism or leading the charge today against sexual violence in war. Let me put this very clearly: We do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights ...to be passed in our Parliament ...rooted in our values ...and as for Labour's Human Rights Act? We will scrap it, once and for all."
Conservative MP and former Attorney General, Dominic Grieve, described the proposals as "almost puerile", adding: "I also think they are unworkable and will damage the UK's international reputation." By universal consent, he had been an excellent Attorney General for four years until he was removed and replaced by a non-entity last July. The reason for his removal is now evident.