The Secretary of State for Justice has declared that "Europe will no longer rule our courts" and it is expected that he will reveal Conservative Party plans to scrap the Human Rights Act 1998 and to ensure that the European Court of Human Rights cannot "overrule" the Supreme Court of the UK - see The Telegraph 26th September - Chris Grayling: Europe will no longer rule our courts
Here is a Secretary of State who, along with his two immediate predecessors, has presided over the elimination of legal aid in vast areas of civil law and, in relation to criminal law, the High Court has recently ruled that one of his consultations was so unfair as to be unlawful (Solicitors Journal 19th September and see also Legal Business and the judgment of Burnett J). The removal of legal aid from many family law cases is having a devastating impact on the lives of many children - (views of the Children's Commissioner - The Guardian 24th September). His "privatisation" reforms
of the Probation Service are coming under severe criticism (Parliament 20th May) and, for my part, I believe that they will prove to be an unacceptable risk with public safety. Furthermore, the regime with prisons is proving to be far from satisfactory - see reports from HM Inspectorate of Prisons. It is reported that suicides in prisons have risen 64% in a year - The Guardian 11th September. Also, let it be remembered that prison law was one of the areas to suffer severe cuts in legal aid - (Law Society Gazette 2nd July).
So much for Mr Grayling's track-record in office ! What of "European Courts" overruling our national courts? There is frequent confusion in this area because there are two "European Courts." So far as the European Union (EU) is concerned, the Court of Justice of the EU sits in Luxembourg and, under the EU Treaties, is authoritative in the areas of EU law where it has jurisdiction. In those areas, this court is binding on national courts.
The other court is the European Court of Human Rights (E Ct HR) based in Strasbourg and this court is an organ of the Council of Europe. Rulings of the court in particular cases are binding in international law on the States which are party to the case. The UK government knew this when it entered into the European Convention on Human Rights (E Conv HR) and thus the UK accepted that it would be bound by such judgments and, in fact, the UK Parliament has generally honoured its international law obligations and amended domestic law so as to comply with rulings of the E Ct HR. To date, the politically thorny issue of votes for serving prisoners is an example of non-compliance and, in fact, the E Ct HR is far from saying that ALL prisoners must be allowed a vote. The matter could be quite easily resolved as a matter of law but it has become a "line in the sand" for many British politicians. Interestingly, the E Ct HR rules against the UK in only about 1.35% of cases though, obviously, they may have high profile subject matter.
Within the UK, the Human Rights Act 1998 applies. This does not insist that our domestic courts slavishly follow all rulings of the E Ct HR. Naturally enough, such rulings are always going to be persuasive and domestic courts seek and require good reason for going against such rulings. However, the Human Rights Act does no more than tell domestic courts to "take into account" rulings of the E Ct HR. The Human Rights Act has brought immense improvements to our law because the Act weaves the E Conv HR into decision-making by public bodies including the courts. Ultimately, the Human Rights Act leaves the final word on our law to Parliament.
The removal of legal aid is a deliberately ideological denial of justice to most British citizens. Mr Grayling now plans in some way - yet to be fully revealed - to limit the impact of the E Conv HR within our country. The Labour Party has said that it will defend the Human Rights Act. The extent to which this significant policy difference becomes an issue in the forthcoming general election remains to be seen. However, any plans emanating from Mr Grayling will require the closest of examination and he must not be allowed to get away with further diminution of the rights of the British people or their access to justice.
A selection of blogposts and other material which may assist readers wishing to dig deeper into this crucial topic.
29th and 30th September -
Head of Legal blog 29th September - What might the Tory human rights plans be?
Clive Stafford Smith - David Cameron's human rights ploy would undermine the rule of law - The Guardian 29th September
Joshua Rozenberg - Law Society Gazette 29th September - Not right for the job?
Family Lore 29th September - Human Rights: a short post to redress the balance
Jack of Kent 30th September - What you need to know about the Human Rights Act and ECHR
1st October 2014 -
Counsel Magazine - article on the E Ct HR by Lord Judge - A view from London in response to A View from Strasbourg
Counsel Magazine - A Three Way Tug of War -
Ministry of Justice - Commission on a British Bill of Rights and here is a link to the full report of the Commission.
University of Durham - Professor Roger Masterman - Are UK courts bound by the European Court of Human Rights?
UK Human Rights Blog 1st October - The remarkable shrinking backlog at the European Court of Human Rights
Govt strangling life out of legal aid http://t.co/pLE8jhsuAQ If ppl can't get access to justice then grievances go unresolved. Injustice
— Mark George (@Mark_George_QC) September 25, 2014