European-Court-of-Human-Rights

Last Tuesday’s ruling by the European Court of Human Rights that whole-life tariffs constitute a breach of a prisoner’s human rights prompted an angry response from government ministers. Crucially Justice Secretary, Chris Grayling, stated not only that it reaffirmed his determination to see real changes in our human rights laws but also ‘to see a real curtailing of the role of the European Court in this country’. Well there is only one way to see such a curtailing, and that is to leave the European Convention on Human Rights.

The way the Convention works is this: signatory states bind themselves (under Article 1 of the Convention) to secure the thirteen rights contained within inside their own jurisdiction. When a person or group of people feel one or more of their rights are being violated they can take their case to the European Court of Human Rights. Here the court will judge whether any alleged violations have taken place, in accordance with their role under Article 19 of the Convention to ‘ensure the observance of the engagements undertaken’. Under Article 46 contracting parties ‘undertake to abide by the final judgement of the Court to any case to which they are parties’.

The obvious question then is how does a signatory curtail the role of the court yet still abide by its judgements? Any answer must of course be paradoxical.

Perhaps Mr Grayling is simply referring to a striking out of the Human Rights Act. This act has enabled complainants to pursue a remedy for an alleged breach of a convention right within UK courts. The UK courts make their rulings in line with those made by the European Court of Human Rights in Strasbourg. However if it is the Justice Secretary’s desire either that complainants should be unable to pursue such complaints in the UK or that the UK courts should not necessarily rule in line with European Court. However it is still simply the case that whilst we remain a signatory of the Convention that these complainants will be able to take their cases to Strasbourg. After all, those who have suffered violations have a right, under the Convention, to an effective remedy. It seems unlikely that the Minister would have such a circular solution in mind.

Thus it can only be reasoned, without insulting Mr Grayling, that on Tuesday he confirmed to the nation that it is his desire for Britain to leave the European Convention on Human Rights. But is this wish well founded?

Chris Grayling is always keen to state the Convention was written by conservatives, and at a time when political prisoners we’re being dragged off to the gulags. What he does not often mention is that the Convention was written at a time in which equality, quality of life and opportunity for mankind in Europe was given en-masse reconsideration. The Convention was written not just in fear of the recent past and threatening present but in the light of hope for a more harmonious and fair Europe for the future.

Stating simply that these rights were established at the time of the gulags, the Justice Minister appears also reluctant to understand the manner by which law naturally develops. The law is not simply that which is dictated on in an Act of Parliament or in the details of a treaty, it is a little more living than that. It is in the court room where the significance and effect of a piece of legislation is truly measured. Courts are bound to follow the rulings and reasoning of higher ranking courts, and in some cases of equivalent rank, in reaching their judgements. Courts may also be persuaded by the reasoning of courts of equivalent or lower ranking, and even by that of courts from other jurisdictions entirely.

Thus, as has been the case in the Strasbourg court, one can start off with a fairly skinny list of principles off of which may blossom any number of intricacies, exception and expansions varying from cases to case. This is ‘case law’, and you may think it should be within a Justice Minister’s understanding. The point intended to be made in stating this is that: no matter what the origins of the rights listed in the Convention were, the manner in which they are now enforced can be seen as the natural evolution and fulfilment of the principles that we were both intelligent and decent enough to enshrine in international law so many decades ago.

When the Justice Minister appears to announce he is no longer interested in Britain remaining in the Convention, it can appear awfully like those in a position of security are now saying ‘Christ, I didn’t think we were going to have to take this whole rights thing so seriously!’ I should hope that after having spent so many centuries wasting much of our humanity that we are going to take human rights all the way; even if that means making unfamiliar and uncomfortable considerations as to the rights of those whom we most strongly condemn.

BY: Alastair Saul