One of the most senior judges in England and Wales has cast doubt on the power of the European Court of Human Rights (ECHR) over legal proceedings in England and Wales. The Lord Chief Justice, the appropriately named Lord Judge, stated in a House of Lords committee that, in his view, English courts are not bound by rulings made on human rights law made by the Strasbourg-based court, although they must take account of them.
The view of most in the legal profession in the UK is that the ECHR is the final arbiter on UK human rights cases whose decisions are binding on courts in the UK. Why? The UK is a signatory to the European Convention on Human Rights (the Convention) as part of its membership of the Council of Europe, a 47-member body distinct from the EU. This agreement, which is based on the global Convention for the Protection of Human Rights and Fundamental Freedoms, enshrines widely accepted principles of human rights such as the right to life, the right to a fair trial, and the prohibition of torture, alongside less well-known ones such as the right to marriage, and the right not to be prosecuted retrospectively for a criminal offence, that is, for committing an act that was not a criminal offence at the time at which it was committed. The Council of Europe enforces the Convention through the ECHR. The Convention was further embedded in UK law with the passing of the Human Rights Act (HRA 98) under the former Labour government in 1998 which made the Convention directly enforceable by UK courts for the first time, with the ECHR as a final court of appeal.
In recent years, the ECHR has made a number of high-profile rulings on matters initially decided by the English courts, for example deciding in 1999 that the killers of James Bulger did not receive a fair trial, and stating last year that extraditing radical Muslim preacher Abu Hamza to face proceedings in the US could breach his human rights.
Made in Britain
One of the most controversial pronouncements of the ECHR in relation to a matter of English law was its 2005 ruling that Britain's ban on prisoners voting was unlawful. This decision spurred the Tories, on their accession to power last year as part of the coalition government, to put in place a process which could lead to the repeal of the HRA 98 and, consequentially, a significant challenge to the influence of the Convention and the ECHR over the workings of English law.
Last spring, the Conservatives set up an independent body - the Commission on a Bill of Rights (the Commission) - to look into the possibility, including by conducting a public consultation process, of repealing the ECHR and replacing it with a ï¿½British Bill of Rights". Prominent supporters of the idea include Prime Minister David Cameron, who listed it as a top priority in the 2010 Tory manifesto, and Home Secretary Theresa May, who recently got into hot water when she criticised the HRA 98 on the grounds of a case in which, she erroneously claimed, the ownership of a cat had been used as justification under the terms of the HRA 98 for permitting an asylum seeker to stay in Britain who would otherwise have been deported.
The Commission published its first report over the summer, but did not address the repeal of the HRA 98 directly, concentrating instead on criticising the practices of the ECHR, particularly its heavy backlog of cases.
Many Liberal Democrats are against a repeal of the HRA 98. Although he has been involved in the government's consideration of its potential repeal, Nick Clegg is thought to be a firm supporter of the HRA 98, while Justice Minister Lord McNally has stated that he would leave the government if the repeal went ahead. In addition, many human rights organisations, including Amnesty International and Liberty, have spoken out in favour of the HRA 98 as the best way to protect the rights of the British people.
The Commission's consultation period continues until November 11, and it is due to report back on the issue by the end of 2012.