UK’s relationship with the Council of Europe soon to reach a turning point – Joshua Rozenberg

7 November 2012 by

In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.

If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.

That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.

But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”

On Law in Action, I discussed the prime minister’s options with Sir Edward Garnier QC. The Conservative MP was dropped by Cameron two months ago from his post as solicitor general for, presumably, not being conservative enough: he was, after all, once the Guardian’s night lawyer.

Surely it would be inconsistent with the rule of law for Cameron to do nothing, I suggested to Garnier. The government’s former law officer readily agreed. He then added:

“If this were a decision of the supreme court in this country, or the high court or the court of appeal, I would feel a lot more uncomfortable, both as a politician and as a lawyer. Because it is this interesting, and strange, and somewhat small ‘p’, political body known as the European court of human rights, whose judges are from all sorts of different backgrounds, political and legal, the imperative to bend the knee is less. Adhering to judgments of a court to which we are signed up by treaty is an aspect of the rule of law, which we must obey. And we can’t pick and choose the laws we want to obey. But, the prime minister has a choice to make and I suspect that the choice he will make is: ‘Thank you, Mr Attorney, for your very careful advice, but I can’t quite hear you.'”

If this proves to be the case, no doubt the prime minister’s resolve will have been stiffened by three rulings against the government this week, especially the finding that Arthur Redfearn, a Bradford bus driver, should not have lost his job for being a member of the British National Party.

That case was decided by a majority of four judges to three. It turned on article 11 of the human rights convention, which protects freedom of association. The court stressed that its role was “not to pass judgment on the policies or aims, obnoxious or otherwise, of the BNP at the relevant time … but solely to determine whether the applicant’s rights under article 11 were breached in the particular circumstances of the instant case”.

Redfearn had argued that the UK was under a duty to enact legislation that would have protected him from dismissal by his employer, even though he had been employed for less than a year. Sir Nicolas Bratza and the two other judges in the minority thought this was going too far.

It is a pity that they were unable to persuade just one other judge to change sides. Of course, employees should not normally lose their jobs because of their political opinions. But neither should the Strasbourg court seek to micro-manage employment law in member states.

Next Tuesday, the human rights court will rule on a UK case of much greater importance. It arises from the death of Giles Van Colle, 25, an optometrist who was murdered in north London 12 years ago by Ali Amelzadeh, an Iranian who called himself Daniel Brougham at the time.

Van Colle had been due to give evidence against Brougham, a former employee who had been charged with stealing property from him. Hertfordshire police accepted in court that DC David Ridley, the detective investigating the theft charges, should have contacted or arrested Brougham after he had made serious threats to Van Colle’s life.

In 2006, the high court found that the police had acted unlawfully by failing to protect the optometrist’s life, a “positive obligation” under article 2 of the human rights convention. That decision was upheld by the court of appeal in 2007 but overturned by the law lords in 2008.

Van Colle’s devoted parents challenged the law lords’ ruling in Strasbourg. The question on which the court invited submissions was: Did the police know or ought they to have known of the existence of a real and immediate risk to the applicants’ son’s life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk?

As is usual these days, the court saw no need for an oral hearing. It would therefore be rash to predict what it will decide.

Because the human rights convention has become so notorious in the UK, it is easy to forget that the convention and the court that supports it are just one manifestation of the 47-member Council of Europe.

That body aims to raise standards among member states in many areas of life, of which the most topical is child protection. And, sure enough, we find that member states agreed as long ago as 2007 on the text of a convention on the protection of children against sexual exploitation and sexual abuse. It all looks very worthwhile to me and I am not surprised that the UK signed it the following year. The convention came into force in 2010, after five states had ratified it. It is now binding on 22 countries. But the UK has still not ratified it. I wonder why.

This article first appeared on and is reproduced here as part of the Guardian Legal Network with permission and thanks.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:


  1. The main problem seems to be that large parts of the government, the media, the public and even some in academia still view the ECtHR as “a foreign court” and always make it a silly argument about sovereignty: As a fellow European, I honestly wish by now that the UK would withdraw from the Council of Europe and the EU and let the rest of the world get on with it. We will see what Britons will think of that when they will all be kicked out of Spain and Malta and when you have to go back to ancient laws from medieval times.

  2. malcdc says:

    Reblogged this on Cook Report and commented:
    We all know what the Tories think of human-rights! The rush to crush them is patently obvious for all to see.
    More people, for instance, are jailed in the UK than in the rest of Europe.

  3. Mike says:

    We all know what the Tories think of human-rights!

    The rush to crush them is patently obvious for all to see.
    More people, for instance, are jailed in the UK than in the rest of Europe, and a complete lack of a Statute of Limitations for any offence, is also at odds with a tolerant society.
    With the current hysteria over “historical” sex offences, it should be known that NO evidence or other corroboration is required to jail any accused person (usually men), other than the word of a plaintiff, or a couple of them.
    Surely a recipe for any person who seeks to make money, or seek revenge to “Allege” that they were abused 40 or 50 years ago,
    Who would want to be a volunteer youth worker, teacher, parish priest, or Scoutmaster in this climate?
    Article 6 of the Human-rights laws states that there must be a fair trial for all accused…this apparently does not apply in the UK.
    I am only interested in Justice, I have no other reason for writing here.

    1. goggzilla says:

      Ye the Tories got in partly on a ticket of civil liberty. The Protection Of Freedom Bill was laudable when first mooted but is now a joke.

  4. goggzilla says:

    Why all the fuss? With the ECHR the Whitehall goons simply delay for as long as possible or dilute the rulings to the nth dimension. Marper? Still not implemented. Goggins? Ditto.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: