Britain, Europe and Human Rights

Analysis by Gabriella ATKINS

The 2015 Conservative Party manifesto outline promised a withdrawal of the Human Rights Act and its replacement with a ‘British Bill of Rights and Responsibilities’.  However these plans have hit a stumbling-block in the form of inter-party splits over whether Britain should withdraw from the European Convention on Human Rights (ECHR).

The ECHR was an international treaty drawn up in 1950 by the Council of Europe which came into effect in 1953.  Most importantly, it predates the formation of the European Union and is therefore a separate entity.  Countries do not need to be members of the EU to sign the Convention.  The Conservative Manifesto is keen to emphasise the conditions in which the ECHR was drafted: in the aftermath of the atrocities of the Second World War and ‘at a time when Stalin was still in power in the Soviet Union and when people were still being sent to the gulags without trial’.  The ECHR outlines a series of rights and freedoms including the right to life, the right to a fair trial, the right to liberty, protection against torture and slavery and the freedom of speech, thought and religion.

The ECHR also established the European Court of Human Rights (ECtHR) based in Strasbourg.  This supranational court was established in 1959 to implement the ECHR but it was in 1998 that the binding jurisdiction of the ECtHR, combined with the right for individuals to take a case to Strasbourg, became necessary for countries signed up to the ECHR.  This legislation coincided with Labour’s 1998 Human Rights Act which effectively incorporated those rights laid out in the ECHR into domestic UK law.

David Cameron promised to replace the 1998 Human Rights Act with an alternative – UK Home Office, licenced under CC BY 2.0
David Cameron promised to replace the 1998 Human Rights Act with an alternative – UK Home Office, licensed under CC BY 2.0

David Cameron’s issue with the current layout of the Human Rights Act is the influence the ECtHR has on UK domestic law.  The Conservative’s proposal document outlines examples where it feels Strasbourg ‘attempts to overrule decisions of our democratically elected Parliament’ in a process named ‘mission creep’.  High on the list are Strasbourg’s ruling that prisoners should be given the right to vote and the inability of the UK to deport foreign criminals who have received justification to stay in the UK from the ECtHR.  Indeed the proposal is adamant that the ‘Convention is an entirely sensible statement of the principles which should underpin any modern democratic nation’.  Pride should be taken in the fact that British MP (luckily Conservative) and lawyer Sir David Maxwell-Fyfe was a key figure in the drafting of the ECHR.

The Conservatives therefore propose to relocate the ECtHR as an advisory body to the UK Parliament and ensure that the ECtHR is no longer a binding force over the UK Supreme Court in a move that will reassert the ‘sovereignty’ of Parliament.  At the moment it appears David Cameron is not aiming for a complete break from the ECHR and ECtHR, more a rebalancing of the power relationship between the UK Supreme Court and Strasbourg, to something more akin to the relationship enjoyed by Germany.  Critics of these plans argue that individuals wishing to take cases to Strasbourg will find the process much elongated which will, in effect, undermine the whole point of having a regulatory body supreme to national states.  To complicate matters, the European Union is currently negotiating the process of the signing up of the EU as a single entity to the ECHR, a process which would involve the agreement of all Member States and ECHR countries.  Whilst the establishment of a British Bill of Rights and Responsibilities may seem a relatively straightforward piece of legislation, its entanglements with the ECtHR and EU make this process a delicate and potentially catalytic event.

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