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My first weekly column for The Daily Telegraph: 'How Britain could leave the ECHR'
07/06/2013 12:06:00


As of this week I'll be writing a weekly column for The Daily Telegraph. You can read today's piece on their website:

'How Britain could leave the ECHR'

I've just caught up with a story on the BBC website featuring some pretty blunt comments from Judge Dean Spielmann, the President of the European Court of Human Rights (ECHR).

Many of my constituents suggest to me that the Government should just ignore decisions by the Court that we don't agree with. If they fine us, so what?

Judge Spielmann warns against such an approach, first because if governments don't respect the rule of law, how can they ask their citizens to do so? "A decision of a court must be executed," he says. "If a decision is not executed this is a violation of the rule of law which is a basic principle of any democracy."

And second because if the UK Government signs up to something but then doesn't implement it, our ability to pressure other governments to meet their obligations under international law is significantly undermined: "[Other countries] might say 'Well if the UK doesn't comply... why should we comply?' Such an attitude... undermines the whole system and it causes great damage to the credibility of the UK."

He is right on both counts. But he then draws a very different conclusion from me about what we should do next.

His view is that when the Court reaches a verdict that an overwhelming majority of the British public and their elected representatives disagree with – for example, that it is illegal for us to deny all prisoners the right to vote – we must do what the Court says. He's not in a great position to lecture us about democracy.

The ultimate decision about the law of this land must lie with the British people, not with judges (whether British or European). If a British court rules that something the Government has done is illegal, then the Government respects that decision – but it has the option of putting legislation before Parliament to clarify the law. The same must be true with the ECHR. If we cannot persuade other members of the Council of Europe (contrary to popular belief, the ECHR has nothing to do with the EU) of this case, then following Judge Spielmann's logic we have no choice but to leave. We should not remain a member and ignore its decisions.

Judge Spielmann warns us against this course of action (he would, wouldn't he? – it would be a significant blow to the ECHR if the UK left). He says leaving "would plainly be a political disaster. Any member state who would leave the Council of Europe, who would denounce the convention, would lose its credibility when it comes to promoting human rights also in different parts of the world".

On this point, he's wrong. Credibility doesn't ultimately come from signing up to agreements, but from your record. There are plenty of countries who have signed up to the UN Convention on Human Rights whose human rights record doesn't bear any scrutiny. Leaving certainly isn't a decision we should take lightly, but if those who monitor human rights around the world (Amnesty International, Human Rights Watch, the Office of the UN High Commissioner for Human Rights, the US State Department) reported no deterioration in human rights in the UK, then in the medium term our credibility needn't be diminished.

So Judge Spielmann is right to warn against ignoring the Court's decisions – but if he thinks the UK has no choice but to do what the Court orders, he's very wrong.

Comment on this blog


Readers' Comments

On 07/06/2013 17:30:00 Jim wrote:
"contrary to popular belief, the ECHR has nothing to do with the EU"

Popular belief is correct. The two are closely linked and will become more so. Under Article 6(2) TEU, the EU will accede to the European Convention on Human Rights.

Also: Article 6(3) TEU "Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [...] shall constitute general principles of the Union's law."

EU law means we must follow the Convention. The law and the institutions are becoming ever-closer linked. Whilst we are in the EU, our courts and the EU's Court of Justice will follow ECHR caselaw, whether we are formally a member of the Convention or not - because we are signed up to those articles through EU membership.

We can only fully extricate ourselves by leaving the EU.




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