Grayling Grumbles About the ECHR

Last week, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, announced plans to drastically overhaul Britain’s human rights laws.

If Grayling has his way, decisions of the Strasbourg-based European Court of Human Rights will be purely advisory, and Parliament will be able to veto its judgments. He also wants to make it tougher for foreign criminals to use human rights legislation to appeal against deportation–for example, ‘serious criminals’ would be banned from using Article 8 (which protects a person’s right to family life) to stay in the UK. Meanwhile, David Cameron has pledged to repeal the Human Rights Act 1998 (which incorporated the ECHR into British law) and replace it with a British Bill of Rights that is essentially a home-grown version of the ECHR (technically, this would be another British Bill of Rights since they already have one).

These proposals have already ignited a firestorm of controversy. Their excoriation by Labour and the Liberal Democrats isn’t terribly surprising, but they have also provoked opposition within the Conservative Party itself, with Kenneth Clarke (a former Lord Chancellor) and Dominic Grieve (a former Attorney General) both voicing their concerns.

There has also been criticism from the devolved administrations as well. Scottish Ministers have already indicated that they would fight any attempt to withdraw from the ECHR, and the Committee on the Administration of Justice in Northern Ireland has warned that scrapping the ECHR could undermine the peace process there. This is significant because, as the UK Human Rights Blog has pointed out, the ECHR isn’t just part of British law–it’s also part of the laws of Scotland, Wales, and Northern Ireland. The statutes that govern devolution in those nations (i.e, the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 2006) each contain provisions that prevent the devolved legislatures from legislating contrary to the ECHR. If Britain withdraws from the ECHR, those Acts would have to be amended. By convention, this would require the consent of the devolved legislatures, and it’s doubtful that consent would be forthcoming from Scotland or Northern Ireland. In theory, the Westminster Parliament could proceed with the amendments anyway, but doing so would almost certainly have serious political ramifications.

This whole debate has an air of fantasy to it. Despite what the tabloids would have you believe, most human rights-related decisions are made by judges in Britain, not Europe. Since decisions from Strasbourg don’t actually bind British courts (they do, however, bind the British Government), it’s a bit rich to claim that sensible British judges are having their hands tied by their barmy counterparts across the Channel. If they follow European precedent, it’s because they believe it’s the right thing to do. And even if you remove Strasbourg from the equation entirely, I doubt there will be a sea change in human rights jurisprudence since the new British Bill of Rights would presumably contain the same provisions as the ECHR.

Given the divisions within his own party and firm opposition from Labour and the Liberal Democrats, Cameron will have to win a sizable majority in May in order to have any hope of implementing these changes. Even then, he may think twice about charging into this  particular battle since it seems likely that any victory would ultimately be a Pyrrhic one.

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