Getting out of the ECHR......

Justice Minister Chris Grayling has bowled a vote-winning googly at the European Court of Human Rights that will be gleefully caught by the public. Amongst the many European institutions disliked by the British, this one is particularly loathed, most particularly for its interventions preventing the deportation of terrorists and criminals. The absurdity of many of its judgments has helped to bring it into ‘hatred, ridicule and contempt’, as the lawyers say.

 

The latest spat has been about votes for prisoners. There was the ruling that ‘life’ no longer meant imprisonment for the whole of the criminal’s life (only imposed for the most heinous crimes such as the murder of Drummer Rigby). Other scandals include rulings that a Nigerian who had served 8 years for raping a 13-year old girl could not be deported because over the years he had established a right to ‘family life’ (most of those years had been spent in prison), neither could the murderer of Phillip Lawrence on similar grounds, and there have been judgments that defy reason such as keeping a cat establishes a ‘family relationship’ which is a bar on deportation. There have been numerous cases of travellers and criminals using the ‘right to family life’ as an escape clause.

 

To be fair, many of the dotty judgments have been handed down by the English courts, but they will have been governed by ECHR decided cases and dictats.

 

The  proposal is withdrawal of UK law from the jurisdiction of the ECHR by scrapping Blair’s  Human Rights Act and replacing it with a Bill of Rights which would mean that ECHR judgments would be ‘persuasive’ instead of binding. It would no longer be a court of last resort.

 

This was the position before the HRA came into force.

 

The ECHR was largely a British post-war creation. Its original mandate was to rule  upon cases of major importance relevant to all European nations that recognised its jurisdiction – that is, most of them. But it has transmogrified from “an international tribunal adjudicating on a few major cases… into an appeal court ruling on the minutiae of administrative decision-making, ranging from what is allowable in smacking a child to what degree of ill health is needed before deportation becomes a cruel and inhuman act”.

 

The quotation is from the former Attorney General Dominic Grieve, who is now ferociously attacking Grayling’s ideas. An entire vineyard of sour grapes?

 

Quoting Lord Hoffman, he went on ‘the Court has turned its back on the original vision of the Convention………. it has been unable to resist the temptation to aggrandize its jurisdiction and to impose uniform rules on member states; …………the jurisprudence of the Court is uneven in quality, sometimes poorly reasoned and uncertain in scope, the result of its expansion and increasing lack of jurisprudential homogeneity and collegiality on the back of the greater number of states adhering to the ECHR”.

 

Grayling proposes “limitations” on how rights can applied, a new test of ‘triviality’, a change to the definition of “degrading’ to avoid a repeat of the case of the deportee whose appeal succeeded on the grounds that the requirement to live in a particular place in Somalia was degrading. There will be measures to prevent cases being brought against British military serving overseas.

 

If the ECHR and the Council of Europe refuse to agree to this change in status, Grayling proposes withdrawal for the European Convention on Human Rights, the court’s parent.

 

So where does all this fit with the EU?

 

Although various treaties acknowledge the principles of human rights, there is nothing in law that would prevent the UK from pulling out of the ECHR, although it would still have to apply HR law when implementing EU law. ECJ rulings on human rights issues would still apply, such as banning insurance companies from giving lower rates to women for annuities because they live longer than men, or motor insurance because they have a lower claims-record.

 

If all this goes through Parliament, it will be almost unique: a Tory Party Manifesto pledge that was actually kept!