The UK in the European Convention: fudge, or a shining example?

9 October 2014 by

DSC02566Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?

Last night’s discussion at Gray’s Inn Hall featured a panel with  Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by  Shaun Ley of the BBC.

The Conservative Party’s proposal which sparked off the debate  was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK’s international obligations.

Martin Howe, a QC most closely involved with this move, simply didn’t understand why it has caused such a “furore”.  Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK’s protection of rights that it should be shackled to Strasbourg, particularly with that court’s history of spending the past sixty years

 inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording

This is an intolerable situation, Howe believes, and it has to be resolved.

Lord Judge was concerned with the tendency to gloss over the hard nosed constitutional question of parliamentary sovereignty and the precise status of the Human Rights Act.

The issue of what is binding on us, and how anything binding is to be implemented has been fudged, fudged from the very start of the Human Rights Act.

Article 46 of the Convention obliges the signatory states to “undertake to abide by the final judgment of the Court in any case to which they are parties”.  But it nevertheless remains clear that the UK never gave Strasbourg the same authority as the European Court of Justice. The prisoner voting issue encapsulates the problem. Are we really saying that if Strasbourg insists that prisoners should have the vote, there must be a way of forcing our parliament to abrogate the current laws that prevent prisoners voting? We argue about treaty obligations, but we don’t ask ourselves the question that Ireland and Germany have answered with their written constitutions, about how we should respond when Strasbourg asks us to do what our unwritten constitution prevents us from doing. This, it seems to Lord Judge, seems ” a very strange constitutional arrangement.”

If it is  impossible to implement a Convention obligation, then we cannot and constitutionally speaking should not do it.

We need to present human rights to this controversy as specifically as possible, otherwise it will remain a political debate masquerading as a legal one. When we talk about “human rights” as a whole – motherhood and apple pie and all that – no one can object. Lord Judge likened it to a “befogged umbrella … keeping the rain off and keeping the fog in my head”.  The whole discussion in his view last night had been political, “which was a pity”.

As has often been pointed out – and Lord Judge reminded us of this – the Convention was written for a concentration camp Europe. The common law, on the other hand, is very much a living instrument (to borrow a term used to justify Strasbourg mission creep), alive to the changing needs of human rights protection. Those who adhere to the common law are not stuck in the nineteenth century or even – in answer to Lord Lester’s intervention at the end of the debate – the nineteen fifties. Today’s courts are populated by judges from a broad political spectrum who look around the world for guidance.

The elephant in the middle of the room was of course the ECJ and the European Communities Act. As Dominic Grieve said, if we’re really worried about mission creep, it should be the EU we should be focussing on, not the ECHR:

I spent quite a lot of my time as Attorney General worrying about the expansion of the European Court of Justice’s jurisdiction, and this is a big issue – I dare say in terms of national sovereignty I think rather a bigger issue than anything which comes out of Strasbourg.

And it was pointed out that this expansion is made a great deal more worrying by the adoption of the EU Charter of Rights, a broad ranging instrument containing social and economic as well as civil rights which acts as a conduit through which the ECHR can be given the upper hand through the European Communities Act which binds us in a way that the HRA cannot do.


One might think that a discussion of ECJ expansionism was as good a place to start as any with a quibble about the usefulness or otherwise of the ECHR to our domestic law, but the proponents of continued adherence to the ECHR have come up with an intriguing argument to the contrary. If we don’t carry on with the ECHR, and do what Strasbourg tells us to do, the ECJ will use that as a pretext to hit us harder with their version of the ECHR. The fallacy underlying this view is obvious. The expansionism driving the EU institutions does not depend on our relationship with Strasbourg. It’s there anyway.

As with all breakouts of this debate, the content was largely political.  Carl Gardner has posted on the session and he may disagree with me since his view was that

This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.

But it seems to me that the strongly ideological approach meant that a number of serious questions were avoided and the ones that did arise were not properly addressed.  It is no longer a complete answer, in my view, just to say that this country has to be a knight in shining armour, and that we would set a bad example to less scrupulous countries by being the first to pull out of the Convention. Without the European Convention, said David Anderson, we would lose our “last imperial vehicle”.  Some might argue that this is a bit of an own goal – who gave us the authority to be the moral crusader of the world? The British Empire of course. And if it’s our “international status” we’re worried about, that is not going to be upheld or even revived by kowtowing to Strasbourg.

Here’s a link provided by Brick Court Chambers from which the recording can be downloaded (until 16thOctober). 

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








  1. Tim says:

    The idea that the signatories to the ECHR intended to be anything other than bound by the rulings of the ECtHR is absolutely ridiculous. As if it is just some sort of advisory or guidance body and not a proper court.

    Clever people come along and try to smuggle the subsidiarity principle into the debate and muddy the waters in all manner of ways, but they can’t bat away the point that I’ve just made.

  2. ObiterJ says:

    With great respect, I am not sure where this post is heading. Bit of sitting on the fence maybe? If I may, a few points – please feel free to shoot me down !

    1. The Conservative document said that it would put its Bill of Rights and Responsibilities to the Council of Europe and see if it agreed that it was adequate. If not, they would withdraw. We have not seen the draft Bill yet so we cannot be sure. The document issued a week ago might be seen as testing the waters in the UK.

    2. Howe QC is entitled to his beliefs but many (probably most) serious commentators disagree. Also, few citizens would really agree if (a) they knew enough about this subject and (b) actually thought about it properly instead of reading the Daily Mail etc.

    3. The Human Rights Act 1998 actually protects Parliamentary sovereignty. Parliament may legislate contrary to the convention but is asked to be honest about doing it – see, for example, section 19 (Statements of Compatibility). Of course that might bring us into conflict in the E Ct HR but it is for government to handle that on the international level.

    4. Parliament did not really think it was handing total primacy to the Court of Justice of the EU (formerly ECJ). Have we forgotten all the angst – not to mention massive costs – of Factortame litigation etc???

    5. Just precisely what does our “unwritten constitution” prevent if its fundamental rule is Parliamentary sovereignty? Answer is it prevents nothing. It either requires nor prevents prisoners being allowed to vote.

    6. Why should the ECHR be limited to prevention of concentration camp Europe? In the 21st century many threats to individual freedom emanate from government. Some of those threats did not exist when the ECHR was first drafted.

    7. Lord Judge (with respect) should go to specsavers and get rid of his rose tinted lenses which seem to look back on our common law as some halcyon pre-HRA98 days. Please tell me the exact cases which granted (a) right to life; (b) prevented torture etc – (we flogged people in prisons up to 1949); (c) actually guaranteed a fair trial; (d) offered a right to respect for family life etc. Basically, all we enjoyed at common law was freedom to do or enjoy that which the law did not prevent. No guarantees of rights or freedoms whatsoever!

    8. Are we to have some sort of common law judicial activism? I hope not. The common law is too uncertain a mechanism to achieve protection of rights since, first of all, it would have to recognise rights. The, it is necessary to wait for appropriate cases to come before the courts and that might take a long time – if ever.

    I hope we stick to the ECHR. This should be a key issue in the next general election but, of course, it may not be since most people are more bothered about their job, a roof over the heads, the NHS and things that matter to them on the everyday level.

  3. sjb says:

    “Martin Howe’s claim that the policy document accurately characterised the Vinter ruling was met with groans of disbelief and disapproval from the audience of lawyers.”[1]

    Because …?


  4. Gavin Steele says:

    “Kowtowing to Strasbourg”? Rosalind, that sounds like petulance – what about PRINCIPLE? You may disagree with those incompetent judges in Strasbourg, but what about the noble vision of universal justice – Churchill’s vision, no less – that they, and the Convention system, stand for? Isn’t a common standard of justice for 47 nations – think of that, 820 million people living with the same set of rights! – something worth preserving, even if it means the occasional (hopefully temporary) compromise on quality?

    Alright, so the UK pulls out of the Convention, and at last there is “British law for Brits”. No more kowtowing – ha, take that, you incompentent foreigners! We, here in Britain, shall look after ourselves! But, put crudely, why should the “human rights” of Britons somehow be more precious than those of everyone else? When the jingoistic hurrahs in the Daily Mail have died away, the victims of that policy will not, on the whole, be Britons (though many a proudly gay officer serving in HM armed services or crusading newspaper editor might disagree). In the longer term, the true victims will be those millions of people who are not lucky enough to live in countries with the UK’s wise and sturdily independent judges – and who will no longer be protected when the Convention system starts to unravel.

    It concerns me that this aspect of the UK debate has been almost completely absent – including, by the sound of it, at Gray’s Inn Hall last night. It is not merely the UK’s integrity on the international stage, a rather abstract notion, that is at stake. It is also the very practical matter of the hundreds of rulings issuing from Strasbourg every month. These rulings protect the rights of millions of people just like us – but who happen to live in faraway countries. By pulling out of the Convention, the UK would effectively be throwing them to the dogs.

    As Churchill clearly understood, sometimes it’s up to the strong to carry the weak – for the good of all of us.

  5. Anne says:

    My Generation fought a full scale War to keep our very own Common Law Constitutional Documents-ALL OF THEM, rather than be dictated to by any foreigners, and most important of course, are the Magna Carta, and our own Declaration of Rights and our Bill of Rights. The people of this Country cannot accept the ECHR ever taking ANY place over our very own Common Law Constitution-for to destoy the Constitution is indeed and Act of Treason. Those latter acts are there for all time to protect our Constitution and although attempts were made in a previous Government to repeal the protective Acts that guard our Common Law Constitution-they cannot be repealed for they are indeed there to protect our Constitutional Documents FOR ‘ALL TIME COMING’.

    I am absolutely AGAINST the four remaining Magna Carta Documents being put together NEXT YEAR OR EVER. An easy target to get rid of ALL of them-ONE WAY OR ANOTHER.

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.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics 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 european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars 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: