The UK Debate on Europe’s Human Rights Court: An Update
By Casey Rubinoff
For supporters of human rights in Europe, the recent news from the United Kingdom has been rather bleak.
In October, United Kingdom’s Justice Secretary Chris Grayling published a Conservative Party strategy paper ahead of expected general elections next year, titled Protecting Human Rights in the UK. In it, the Conservatives pledge to repeal the UK’s Human Rights Act of 1998 (HRA) and replace it with a British Bill of Rights and Responsibilities. This, like the HRA, would incorporate the text of the European Convention of Human Rights into domestic law, but—crucially—it would not require British courts to “take into account” all the judgments of the European Court of Human Rights (ECHR). Further, the party plans to endow parliament with the authority to review and ignore any of the court’s judgments affecting the UK. A draft of the proposed bill of rights is due to be published before Christmas.
The Conservatives say they would also request special accommodations for the UK in its relationship with the court: Strasbourg’s judgments will no longer be binding over UK courts; instead the court would be treated as an advisory body and no longer able to order immediate change in UK law. The Conservatives have made it clear that they will not hesitate to withdraw from the Council of Europe, the 47-nation body established in 1949 that oversees the court, if it does not agree to these changes.
These proposals reflect British skepticism towards the court, fueled by several highly disputed decisions over the last decade. Strasbourg has ruled on several occasions that Britain’s ban on prisoners’ voting rights is unlawful and that whole-life sentences must be subject to review and the possibility of parole. Among the most controversial rulings was the court’s decision to block the deportation of radical cleric and alleged terrorist Abu Qatada due to the risk that he would be tried in Jordan with evidence obtained through torture.
Members of the Labour opposition have condemned the proposals, accusing the Conservatives of jeopardizing the credibility of the UK’s legal system, just to fend off a growing challenge to their support from the anti-European UK Independence Party (UKIP).
But there has also been dissent from within Cameron’s own party, most vocally from Dominic Grieve, the former attorney general dropped from the cabinet earlier this year. As attorney general, Grieve fought fiercely against court decisions that went against Britain. But he dismissed his party’s proposals as “factually inaccurate” and containing “howlers.”
Although the Conservatives’ plan does not call for an immediate withdrawal from the European Convention on Human Rights, Grieve has warned that withdrawal would be inevitable if the Tory plan is enacted, since it is inconceivable that the UK would be successful in negotiating a special status for itself at the court.
Withdrawal from the convention would result not only in the UK’s pulling out of the Council of Europe, but also its secession from the European Union, since membership in the council is a requirement for EU Member States. A further concern is how withdrawing from the convention would affect Scotland, Wales, and Northern Ireland, whose devolution agreements require that the convention be incorporated into local law.
Grieve has also questioned whether attacking the ECHR will really have any impact on voters at the next elections. He argues that many within the Conservative party support his position, telling legal experts in London earlier this month, “I am not a lone voice crying in the wilderness.”
Regrettably, even if the current proposals are never enacted in Britain, or agreed to by the Council of Europe, they send a damaging message to other governments, particularly those that already have troublesome human rights track records.
The Russian government previously entertained the idea of giving the Russian Constitutional Court veto power over Strasbourg. While the bill was eventually withdrawn after a backlash from civil society, President Putin has continued to be critical of the court and said that Russia’s withdrawal is a future possibility. Hungary’s increasingly authoritarian prime minister, Viktor Orban, has praised Cameron for attacking the court. Outside Europe, Kenyan President Uhuru Kenyatta, whose charges for crimes against humanity at the International Criminal Court were just dropped, used the Conservatives’ party line to defend his push to “reassert sovereignty” in the face of expanding international law.
Inside the UK, the debate is largely being fought out in narrowly domestic terms. But the outcome will have implications for rights across Europe, and around the world. In the words of Dominic Grieve, “for all its problems, the convention has proved and is proving to be an effective tool—perhaps the single and most cost-effective one currently available for promoting human rights on our planet.”
Until August 2015, Casey Rubinoff was a litigation fellow with the Open Society Justice Initiative.