After months of wrangling over the influence of Europe on our human rights law, today the United Kingdom begins its 6-month chairmanship of the Council of Europe (CoE)’s Committee of Ministers. Amongst other things, the CoE supervises compliance with judgments of the European Court of Human Rights.
Coincidentally, the court’s new British president, Sir Nicholas Bratza, began his presidency on Friday; only the third British judge to do so (see my post from July). So there is a genuinely British feel to the organisation, at least for the next 6 months.
Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.
But can it? And did Lord Judge, the Lord Chief Justice, really say that?
To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.
why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?
When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.
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