|Striding Edge, Helvellyn|
There is much in Lord Judge's comments to take issue with but his views will undoubtedly lend succour to those in the present coalition government who harbour an intense dislike of the European Court of Human Rights. After all, it acts as a brake on the massive power that the doctrine of Parliamentary Supremacy (or Sovereignty) confers, in practice, on the executive branch of government. The latest views of the Secretary of State for Justice and Lord Chancellor are covered by an article in The Guardian 30th December - Grayling says European Court of Human Rights has lost legitimacy. Some serving judges have also been critical of the European Court of Human Rights. The recent views of Lord Sumption and Lord Justice Laws were considered here and here (respectively).
There is some counterbalance in the views of Lady Hale and Lord Mance - considered here and see here (pdf). Lord Mance points out that Parliamentary Sovereignty is unconstrained by any written constitution or document containing fundamental rights. He highlights some of the changes to law brought about since the Human Rights Act 1998:
"In relation to the United Kingdom, the Convention and Strasbourg case law has over the years led to the removal of sentencing discretion from the executive, the lifting of the ban on homosexuals in the armed forces, the ending of detention without trial of aliens suspected of terrorist involvement, prevention of deportation of aliens who would if deported face a real risk of torture or inhuman treatment or of a flagrantly unfair trial and the state being held responsible for complicity in illegal rendition and torture abroad. The domestic effects of decisions reached in some of these areas may sometimes pinch, but it is difficult to regard it as unforeseeable that a court, established by consent of European states to give effect to the Convention, should reach them. At the international level, the Convention has also been a positive inspiration for - and an impetus for lifting standards of treatment of - Europeans across the wider continent."
A great deal more could have been added by way of the achievements of human rights law even if those beneficial developments attracted fewer headlines. Earlier in the year, this blog looked at some of them. For example, see the post of 18th May - Domestic Law and the European Convention on Human Rights Part 4 - where the impact of human rights on mental health law was considered. (Links therein to Parts 1, 2 and 3).
The Secretary of State is having plans drawn up for legislation to curtail the influence or power of the European Court of Human Rights. (I prefer the word "influence" since the Human Rights Act 1998 simply commands UK courts to "take account of" the E Ct HR's judgments and our lower courts are in any event bound by the decisions of the High Court and above). These proposals will appear in 2014 and will then have to be assessed against the criterion of how they would protect the hard fought rights of the British people. Let us also remember that, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), access to law has been curtailed in numerous areas by either the removal of legal aid or its restriction to limited types of case. Can rights without effective and affordable means to enforce them against the State truly be called rights at all? The attack on legal aid in criminal cases is continuing. 6th January 2014 will see a day of action by lawyers in protest against the government's plans.
The Shadow Justice Secretary has been critical of the stance of the coalition on human rights protection and, citing the Volkov case (May 2013), he argues that it is making it more difficult for countries such as the Ukraine to achieve adequate protection for rights - The Guardian 28th December.