Human Rights 60 years on
Sep 4, 2013Posted by on
An article with the title European Convention on Human Rights – 60 years old today notes that September 3rd marked 60 years since the European Convention on Human Rights (The Convention) came into force. That the UK government’s seemingly difficult relationship with The Convention and its five protocols has a certain irony, as many of the rights in it are indebted to English common law.
Article 25 of the Convention (the right of individual petition) gives a petitioner powers to challenge their sovereign state’s laws and court decisions before The European Court of Human Rights in Strasbourg (ECtHR), which has binding powers to overturn decisions and insist on changes to laws themselves. The Human Rights Act (HRA) made the The Convention directly enforceable in UK courts.
The Human Rights Act (pdf) only invests the UK Judiciary with the power to make a declaration of incompatibility with the The Convention. The judiciary has no power to ‘make new law’. Parliamentary Sovereignty is maintained and a parliament only has a duty to ‘consider the findings of the judiciary’, being only bound by its international obligations through The Convention, there is no such limitation on the ECtHR.
This fragile balance between UK Parliamentary Sovereignty, The ECtHR, The Convention, and its own judiciary is exemplified in the recent cases involving the deportation of Abu Qatada. Leading to the government presenting the ECtHR and The Convention, as a European intrusion into British justice. Yet as Peter Oborne pointed out; The rule of law in Britain is diminished by the furore over efforts to deport Abu Qatada to Jordan.
Theresa May has said that the Conservatives would consider leaving the European Convention on Human Rights if they won the 2015 election, and that the party would also scrap the Human Rights Act (HRA). The Home Secretary’s rhetoric does little to alleviate the government’s difficulties with the ECtHR, The Convention and the HRA, as the following articles demonstrate:
Human Rights, Devolution and the Constrained Authority of the Westminster Parliament, proposes that: “If the Westminster Parliament wished to root out the European Convention on Human Rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal from Convention rights from the devolution framework”.
What would happen if the UK withdrew from the European Court of Human Rights? suggests that: “Withdrawal from Strasbourg is unlikely to make it easier to send foreign criminals back to their home states. Particularly if they are facing torture or if their children are going to be unduly affected. Given that is the case, the stated justification for withdrawal falls away. What is left? That is ultimately for the electorate to decide, but an inchoate fear of European influence, an obsession with the expulsion of foreigners and the rise of UKIP, are certainly good candidates”.