Better Together? The ECHR and the United Kingdom

By Hammad Baig & Santosh Pandey

HB1 MTSA_pixlr.jpg
santosh.jpg

Being a coalition supporter, I support the Conservative Party for various policies it advocates. However, the recent change in stance on the ECHR, is a position, I differ on. This article below is a look towards the reasons given for and against the proposal, the effects that may follow, the opinions and a critical analysis. It is. by no means exhaustive, and depending on how events unfold in the near future an instalment to this piece would be forthcoming. 

“Let me put this Clearly: We do not require instruction on this from judges in Strasbourg”, David Cameron, Speech to Conservative Party Conference, 2014. The Conservative Party has made a promise to the voters and supporters at the Conference that “with a Conservative Government after the next election, this country will have a new British Bill of Rights”.

The Human Rights Act of 1998 (HRA) came into force on 2 October 2000. The purpose, simply put, was to give further effect to the European Convention on Human Rights. That the Judiciary would take into account the judgments and opinions of the Strasbourg court, i.e. the European Court of Human Rights in Strasbourg. Furthermore, it provides a remedy for breach of a Convention Right available in the UK courts, without knocking on the doors of Strasbourg.  The common law has formed in such a way that, the British Courts are not bound to follow the ECHR, but rather if a principle arose from consistent line of reasoning in a number of cases, and that reasoning is not in conflict with the current UK laws, the courts tend to follow it.  Also, in the Regina v Special Adjudicator (Respondent) ex parte Ullah (FC), a House of Lords decision, it was commented upon, that the British Courts need not do “no more” than Strasbourg, “but certainly no less”.

The ECHR was a post-WWII development; the traumatic experience had led to the expression of Human Rights under this convention. Article 2 of the declaration states:

“Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non self governing or under any other limitation of sovereignty.”

This has been incorporated in EU countries through various legislations. The ECHR has been a successful instrument, applied by the Strasbourg court in various cases. It has been the key in changing law, preventing the cross examination of a rape victim by the attacker, for holding the police accountable for failing to investigate rape and human trafficking, and the establishment of the right to an independent investigation for deaths in prison. In S and Marper v UK, the court had ruled that there was a “disproportionate interference” with the right to respect for private life, deeming the retention of fingerprints and DNA, even after the charges were dropped on the arrested person, a failure to stabilize the public and private rights and a non essential element in a democratic society.

The HRA and ECHR have been instrumental in protecting and preserving the rights of the Children. In Z and Others v UK, the court examined the duty of the social services in protection of children from torture. Article 3 of ECHR, prohibiting torture, inhuman and degrading treatment was ruled to be breached and that it was a failure on the part of the UK to protect the children from such ill treatment and should have had the knowledge of the extreme neglect. Furthermore, that there was no system in place to provide compensation, a breach of article 13 of the ECHR, i.e. the right o an effective remedy.

In 1981, the ECHR had decriminalized male gay sex in Northern Ireland, when a case was bought up, and the appellant was interrogated regarding his sexual behavior by the Royal Ulster Constabulary police force. In 2013 a ruling came out against two British Christians, who claimed that they were fired because they would not work with gay couples. In the Smith & Grady v UK, two male, UK military men were dismissed based on their homosexuality. In the House of Lords, Articles 8 and 14 were argued, i.e. the right to respect for their private lives and to be free from discrimination. The court ruled that their rights have been violated and had the view that there had been “exceptional intrusion” in their private lives.

Even at the local government level, the HRA has been an instrument in stopping the councils from misusing the CCTV surveillance, from spying on parents believed to be subverting catchment area rules for schools. It has been brandished against certain councils which closed the libraries and had circumvented altogether the rights of the disabled and the elderly.

That is the tip of the iceberg. Just in the UK and in the 47 countries which are signatories, the ECHR has had enormous affect on the lives of the people. But then criticism of Strasbourg, and its judgment are gathering pace in the UK. With the Conservative party’s announcement to repeal the HRA and a new British Bill of Rights, there are critics supporting the move.

The critics argue that it is an overriding principle over the judgment made by domestic courts, and that it is a contradiction to the Bill of Rights, as the British tradition has made the Parliament the protector of the rights contrary to the system in Continental Europe, as there constitutional entitlements are lifted out of politics and then safeguarded in theory by judges. It has been argued to an extent, that siding with ECHR, in order to send a right signal to reformers in Albania and Azerbaijan, is a “fanciful” idea. Moreover that Britain has never had the problems with Human Rights abuses, at least to the same level as was being experienced in the rest of the Continental Europe after, and during, its inception; and that the ECHR has become a vehicle for frivolous and vexatious claims.

The outcry has found its ammunition in certain rulings which did not go well with the Conservatives. The ruling against the blanket ban on prisoner’s right to vote, and that this was a breach of their human rights has found a response, when David Cameron said that the idea of prisoners voting made him “physically ill”. The ruling has so far been resisted by the parliament. The options altogether are either doing what Strasbourg has given in the judgment (in the form of options) or don’t follow the judgment at all. The pundits in the field have related this to the issue of political arguments and that such a decision should be a determination of the national democracy, as against fundamental human rights.

The case of Abu Qatada has been a bone of contention. January of 2012 saw the ECHR blocking the deportation of Abu Qatada, a radical cleric, to Jordan, as it was feared that he would be tortured in order to obtain evidence. This was outright opposed by the Conservatives as “completely unacceptable”, which furthermore led to signing of a new treaty with Jordan, which granted him a free trial. This has been seen as an interference, by some, to the sovereignty of the parliament, because it seems, they argue, it does not matter much to whom one votes, as the ECHR may intervene. Some critics have even linked it to the British pride and tradition.

Considering the option that a new Bill of rights is introduced and passed, there would be effects on the life in general and the relations with EU in particular.  The plan seems to be to get the final right of appeal with the British Supreme Court and not Strasbourg. But, contrary to popular belief, it might not be the case that the courts are charitable to the government, as now particularly, with the knowledge that the right of the Individual petition in the Strasbourg Court, considered to be a safety net in the current hierarchy, would no longer be there.  

Furthermore, there is also the looming question related to the issues of the Westminster’s limited options when it comes to Northern Ireland, Wales and Scotland. The argument to leave the ECHR has to be weighed on the balances with an argument of that stature, that it would solve the ‘problems’ as pointed out by the Conservatives. More so paradoxical, just in the recent past, when Cameron was hook line and sinker into “Better Together”.  That could very well apply to the ECHR and the world at large.

There is no clear opinion as to the political and legal effects of a withdrawal from the Court.  In probability, the UK might have to completely withdraw from the ECHR treaty, and furthermore the Council for Europe, to which it was an instrumental party during its creation. On the political side, as argued by the ECHR proponents, it would be giving signals to countries such as Russia and Turkey that there was clearly a lack of confidence in the ECHR. It is highly debatable in the international theory ranks that would be a net positive or the opposite for the UK. Ironically the Conservative lawyers took a keen interest in the drawing up of the ECHR and their policy of standing up for individual rights against the all so powerful state.

Hammad Baig - BA Hons (London), LLB Hons (Surrey)


Hammad Baig was called to the bar of England and Wales at Middle Temple, he was later placed on the roll as the Solicitor of Senior Courts of England and Wales. He advises on all aspects of commercial litigation and tax law. Particularly experienced in business taxation including international transactions, commercial litigation, international tax disputes, advising foreign domiciled individuals and entrepreneurs.  Hammad regularly appears at the courts and, in particular, before the Tax Tribunals. Experienced at in-depth analysis of complex provisions in disputes with Her Majesty's Revenue and Customs. He takes much pride in regularly offering legal advice to charities on a pro-bono basis and is presently a legal adviser to multiple charities and can be contacted on either 0794 687 8708 or baig.hammad@gmail.com.

Santosh Pandey has recently completed an LLM from the University College London and is presently completing an internship with Hammad Baig.