This is a cross-post from Barrister Blogger by Matthew Scott
Chris Grayling announced today that the Conservative Party will fight the next election on a promise to introduce a “British Rights and Responsibilities Bill” that will “completely change the way in which our human rights laws work.”
In essence his plan is to make the European Court of Human Rights “only an advisory body in the UK – able to make recommendations to us and no more.”
He plans to do so, if possible, without leaving the Convention:
“… we will discuss our plans with other European nations, and engage with them on how we intend to handle human rights matters in the future. We hope they will accept our plans. But if they cannot, then we will invoke our treaty rights to withdraw from the Convention altogether, to coincide with the passage of the new Bill into law.”
There are so many problems with Mr Grayling’s ideas that it is hard to know where to start but the idea that we could remain part of the Convention while treating the rulings of the Court as “only advisory” is as good a place as any.
There are two issues here, which the Justice Secretary almost always manages to confuse: the effect of the Convention on the United Kingdom as a matter of international law, and the status of the Convention in UK domestic law.
The rulings of the Court are, and have always been binding on the British Government in international law. Mr Grayling is fond of saying that the Convention is used in ways that were never envisaged when it was introduced but Article 53 of the original convention, [now article 46 (1)] provided:
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
It would be absurd to characterise this provision as an infringement of sovereignty. It was no such thing in 1950, and it is no such thing today.
Countries have been making international treaties for hundreds of years, and nobody suggests that agreeing to abide by them is inconsistent with national sovereignty.
You can read Matthew’s post in full here
