How British values influence the European Court of Human Rights

In the past few months, I’ve given over a couple of posts to the Labour Party and human rights. See my report of Yvette Cooper’s speech, or Sadiq Khan’s speech, for example. As such, its worth bookmarking a recent Daily Telegraph piece by Khan, on the Human Rights Act, and Britain’s relationship with the European Court of Human Rights.

The lay-reader may appreciate a quick overview of these human rights mechanisms. First, the European Convention on Human Rights incorporates basic protections into a Europe-wide treaty. The UK government must protect human rights because it has signed a treaty saying it shall do so—the rights have not been ‘imposed’ on us by European bureaucrats. The convention also establishes a court (at Strasbourg) to hear cases of human rights abuses. We in UK and the other signatory states are bound by the rulings of the court because we chose to sign the treaty.

(Fun fact: The Convention was drafted by Sir David Maxwell-Fyfe, a British lawyer who was a prosecutor at the Nuremburg Trials who became a Conservative MP, Home Secretary and Lord Chancellor under Winston Churchill.)

Unfortunately, the Strasbourg-based European Court of Human Rights operates relatively slowly and cannot take on every case brought. So the British parliament (during Tony Blair’s government) brought in the Human Rights Act 1998 (HRA). This law doesn’t rewrite human rights (in fact, the convention rights only appear in the appendix). Instead, the HRA simply asks that public bodies take the European convention rights into account in all their actions. This applies to judges’ decisions too, and also to new laws drafted by the government.

So the HRA make things efficient for people living in Britain, because potential human rights violations are caught at an earlier stage.   The Court of Appeal can easily adjudicate cases based on Strasbourg precedent; and many human rights abuses simply no longer occur because of the obligations that the HRA places on local authorities to think about this kind of stuff! Its a streamlining measure.

That’s why Teresa May’s suggestion that a Conservative Government would abolish the Human Rights Act is so disgraceful. If the law were to be repealed, we would still enjoy all our European Convention rights. It’s just if something went wrong it would take far longer for things to be put right… Because we’d have wait for Strasbourg to sort it out for us again. Difficult, lengthy, and expensive.  Teresa May wants to put bureaucracy between us and our basic rights as human beings.

Thankfully, the Labour Party have a different approach. Sadiq Khan has often reassured voters that Labour would protect the Human Rights Act.

Unfortunately, there’s a meme going round that the Strasbourg Court is somehow interfering with British values. Critics of the Court (who are often also critics of the idea of universal human rights) cite the problems the Government have had deporting ex-offenders or extraditing terrorists. They also note the issue of prisoner voting, ‘whole life’ tariffs, and whether people on the sex offenders register have the right to have their record reviewed. In all these cases, the human rights ruling (some at Strasbourg, some in the UK) has been seen to be ‘out of touch’ and that judges have ‘got it wrong’.

Personally, I simply reject the meme.  First, the judgements in question are far more complex than tabloid headline writers would have you believe.  But more fundamentally, I think that counter-intuitive judgements (some of which apparently make the Prime Minister ‘physically ill‘) that protect human rights for despicable people, show that the system is working. If pædos and terrorists enjoy such protections, then I can be sure that I enjoy them, too!  A YouTube rant I recorded a little while ago expands on this point.

Sadiq Khan is a politician, however. He needs to be popular in order to do his job and my arguments won’t work for him. So in his article for the Telegraph, he acknowledges the unease that such difficult judgements present. How do deal with this without weakening our human rights protections in some way? He seems to have found a way out of the conundrum, which is to draw attention to section 2 of the Human Rights Act. This part of the law clearly states that judges do not need to blindly follow Strasbourg jurisprudence. Sometimes a British court could “take account of” a European ruling, but then disagree with it.

Such a solution only goes so far, of course. Blithely ignoring an actual ruling of the European Court would be extremely serious. But the elegance of the Human Rights Act is that it pulls human rights decisions away from the binding, final-port-of-call Strasbourg court. Back in Britain, there is a chance for minor disagreements between European and British judges.

Here’s where it gets interesting. Section 2 enables a ‘dialogue’ between the European and British courts. This is not a case of a load of old judge a skyping each other. Rather, it allows the door of ‘precedent’ and judicial argument to swing both ways. Reading blog commentary and discussing this issue with legal experts, I was intrigued to read about the Horncastle and Al-Khawaja cases evidence  where the British judges disagreed with a European Court ruling about whether hearsay evidence should be admissable in court. In the latter of those two cases, the European Court agreed that the British judges had got it right all along.

Such happenings occur in dry, complex, written court judgements. The British influence over the European Court and the evolution of human rights in accordance with British values happens very slowly. We all crave a sort of Love Actually moment, where the Prime Minister (Hugh Grant) tells the US President (Billy Bob Thornton) to shove off, but in real life our values never prevail in such confrontational circumstances. We should be wary of the Conservative politicians who seek to provoke such head-to-head disagreements. It’s a form of demagoguery and they don’t have our best interests at heart.

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