Chris Grayling announced today that the Conservative Party will fight the next election on a promise to introduce a “British Rights and Responsibilities Bill” that will “completely change the way in which our human rights laws work.”
In essence his plan is to make the European Court of Human Rights “only an advisory body in the UK – able to make recommendations to us and no more.”
He plans to do so, if possible, without leaving the Convention:
“… we will discuss our plans with other European nations, and engage with them on how we intend to handle human rights matters in the future. We hope they will accept our plans. But if they cannot, then we will invoke our treaty rights to withdraw from the Convention altogether, to coincide with the passage of the new Bill into law.”
There are so many problems with Mr Grayling’s ideas that it is hard to know where to start but the idea that we could remain part of the Convention while treating the rulings of the Court as “only advisory” is as good a place as any.
There are two issues here, which the Justice Secretary almost always manages to confuse: the effect of the Convention on the United Kingdom as a matter of international law, and the status of the Convention in UK domestic law.
The rulings of the Court are, and have always been binding on the British Government in international law. Mr Grayling is fond of saying that the Convention is used in ways that were never envisaged when it was introduced but Article 53 of the original convention, [now article 46 (1)] provided:
The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
It would be absurd to characterise this provision as an infringement of sovereignty. It was no such thing in 1950, and it is no such thing today.
Countries have been making international treaties for hundreds of years, and nobody suggests that agreeing to abide by them is inconsistent with national sovereignty.
To take but one example, the United Kingdom is a signatory to the General Agreement on Tariffs and Trade (“GATT”). Like the European Convention on Human Rights GATT has a disputes resolution procedure which the British Government abides by. It does not, of course, deal with newsworthy issues such as whole life tariffs for prisoners but with dull things like tariffs on cotton imports. International law and international relations cannot operate if states sign up to treaties and then say they will not be bound by them.
What rights does Mr Grayling want to reduce? He says that his Bill will:
“Stop Article 8, the Right to Family Life, being used for purposes it was never intended. It should not be used by an individual to say that their right to family life allows them to override the law that applies to every other citizen, for example travellers occupying green belt land and claiming human rights trump planning laws. Or a similar situation with a foreign criminal and our immigration laws. Everyone must be subject to the same law of the land, no exceptions.”
This is not very clear. On the one hand the Justice Minister is saying that “everyone must be subject to the same law of the land, no exceptions,” whilst on the other hand he seems to be suggesting that there should be a whole host of exceptions including “travellers” and “foreign criminals”. Elsewhere in his statement he says “there will be a triviality test stopping human rights laws being used for minor matters,” which again would seem to create plenty more exceptions. Nevertheless, if his statement means anything it means that the operation of the European Convention in Britain will be restricted in certain cases, and that the Government would ignore the Court’s rulings in others. This would put the United Kingdom in breach of the Convention.
It is, of course, generally possible for a State to leave a treaty and the ECHR is no exception. It would be coherent, if in my view mistaken, to leave the Convention. It is incoherent for a country to announce unilaterally that it will no longer regard itself as bound by a Convention to which it remains a signatory. It would be like agreeing to take part in a game of cricket and announcing halfway through your innings that you would no longer regard the umpire’s decisions as binding.
Mr Grayling’s other main complaint is that:
“Our Courts now treat the Convention, and the interpretation of it in Strasbourg, as sacrosanct.”
This is legal nonsense. Neither the Convention itself nor the Human Rights Act make rulings of the ECtHR in Strasbourg sacrosanct in British Courts. The Act does require the Courts to “take account” of (amongst other things) any:
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights ….
But being required to “take a judgement into account” is an entirely different matter from treating it as “sacrosanct”. Thus in R v. Horncastle  UKSC 14 the UK Supreme Court took into account judgments from Strasbourg and expressly declined to follow them on the question of whether there could be a fair trial where witnesses were not available to be cross-examined.
Mr Grayling’s statement does not begin to address the extraordinary constitutional problems that his plans will produce.
Theses were most recently spelt out in a compelling piece by Colm O’Cinneide of University College London. In essence it is this: “The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues.”
For this reason a “British Bill of Rights” would either have to over-ride the Scottish, Welsh and Northern Irish legislatures, or it would have to concede to them, or some of them, the right to continue to apply the Convention in their own way within their own countries. The prospect of an English dominated government “removing” human rights from a Scotland, Wales or Northern Ireland that wanted to retain them hardly bears thinking about. On the other hand, if it did not do so, it would not be a British Bill of Rights at all, but an English Bill of Rights. Either way, the effect on an already fragile union would be significant, and it might well be catastrophic.
Leaving the European Convention might also have an effect on our relationship with the EU. Membership of the Council of Europe – in effect signing up to the European Convention – is a requirement of EU membership. As a result it seems highly likely that if, as Mr Grayling’s plan threatens, Britain were to decide to leave the Convention its EU membership would thereby be put in jeopardy. “So much the better” some would say. But if we are to leave the EU we should do so after a referendum in which all the various arguments about the advantages and disadvantages of membership have been properly considered, not as an unintended – or worse still a concealed – consequence of a British Rights and Responsibilities Bill.
Mr Grayling’s proposals are a populist gimmick that would, if implemented, reduce the rights of the most vulnerable, reduce the country’s international standing, lead to years of arid constitutional wrangling and ultimately, in all probability, lead to the destruction of the United Kingdom.