There’s been much discussion lately of Conservative plans to loosen the UK’s ties with the European Convention on Human Rights (ECHR) and the European Court in Strasbourg that applies it, and to “restore the supremacy of Parliament” over human rights in the UK.
Taken purely on their policy merits, the government’s plans make little sense. The UK has a “dualist” legal system: the international law obligations of the state are not enforceable in domestic law unless parliament so legislates.
As a matter of domestic law, the argument that our parliament needs to “regain” its supremacy over human rights is misleading. Parliament is already fully competent in UK law to pass valid laws that are contrary to the ECHR or to particular judgements of the Strasbourg or UK courts.
This is because the ECHR only has effect in UK law through a statute, the Human Rights Act, and that Act carefully preserves Parliament’s ability to legislate incompatibly with the Convention. From this perspective, therefore, the plans seem purely cosmetic.
From the international law angle, the Tories may want to “free” the UK from its legal obligation to comply with judgements made in Strasbourg. To achieve that, however, the government would have to persuade all of the signatory states to amend the ECHR so as to make Strasbourg judgments no longer binding on state parties.
That is simply not going to happen. It would be seen as tearing the heart out of the Strasbourg system of rights protection, opening the door to authoritarian states like Russia to disregard any judgments they didn’t like.
Perhaps the Tories are simply talking about defying Strasbourg more openly – but the UK is already doing that (over prisoner’s voting rights). No UK statute can make disobeying the court lawful as a matter of international law – and consciously acting unlawfully, of course, is contrary to the supposedly fundamental Conservative value of the rule of law.
In or out?
As policy, then, these plans are incoherent; the real choice is whether to stay in the ECHR or withdraw from it altogether. But this in turn depends ultimately on the result of a referendum on membership of the EU, currently slated for 2017.
Should the UK vote to stay in the EU, we will almost certainly be unable to withdraw from the ECHR, since signing up to it is a condition of joining the EU. But if we vote to leave the EU, that will also clear the way for us to withdraw from the ECHR (though we wouldn’t be obliged to).
The current proposals, then, are best seen as a holding plan, a bit of rhetorical red meat thrown to Tory Eurosceptics and the right-wing press to help put off a real decision until 2017.
Worthy of reflection?
But even if these proposals are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.
On the contrary, it’s a mainstream position, defended by numerous well-known figures in the UK and beyond. As Jeremy Waldron has argued, we disagree about the definition and protection of human rights just as we do about other political questions; the only fair way to resolve such disputes, therefore, is through the democratic process – rather than by relying on unelected judges to impose their views on the rest of us.
There’s also a midway position that may reflect what the Tories are after. Rather than either making courts the supreme authority on constitutional rights (as in Germany and the US) or giving all power to parliaments (as in Australia), a “third wave” position has also been identified, wherein courts are given a strong role in protecting rights, but legislatures can override judicial rulings provided the legislation states expressly that it’s contrary to the Bill of Rights (the UK’s Human Rights Act, much derided by the Tories, is a variant on this model).
This third wave approach aims to spread responsibility for protecting rights between all the branches of government and provoke a constitutional “dialogue” between them, allowing each body to learn from and correct the mistakes of the other.
So however incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries (Canada, for instance - although the legislative override has been very rarely used there).
In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.