Removing The UK From The ECHR?

While much emphasis domestically is concentrated somewhat understandably on the UK's membership of the European Union an often forgotten supranational influence on the UK is by the Council of Europe (pictured above) - notably in the form of the European Court of Human Rights (ECHR) pictured below:

The Council of Europe is a European body, based in Strasbourg, which was an attempt - the second attempt - by Jean Monnet to create "ever closer Union" soon after WWII.

In this it is nothing more than a failed predecessor of its far more successful offspring, the EU - established by the Treaty of Rome 1957. In simple terms the Council of Europe could be considered historically as 'a dry run' for European integration. It's tempting therefore in light of its intrinsic failure to view the Council of Europe, with its same flag and anthem, as a relic of the past which has little importance.

Yet while the Council of Europe floundered in its primary role of creating "United States of Europe" it found a new purpose in human rights, inspired by the United Nations' Universal Declaration of Human Rights (UDHR). But this diversity into a role that was not intended meant a flawed and weak structure in the form of the Committee of Ministers, which was unable to keep in check the very court (ECHR) it established. Thus, powered by its supranational ambitions, we now see an unelected court unrestricted by the normal conventions of the separation of powers - no proper legislature to keep it in check.

So unsurprisingly we increasingly see the unchecked ECHR acting as both a judiciary and a legislature combined. A classic example would be prisoners' right to vote regarding the UK. Despite the UK's Parliament's long-standing objections as a reflection of public opinion the matter remains unresolved to the ECHR's satisfaction.

We see another example when it comes to immigration. Booker in his Sunday Telegragh column notes:

But the real problem posed by loss of control over our borders stems not from the EU treaty or even laws passed by politicians. It comes from law made by judges, most notably those of the European Court of Human Rights (ECHR), as they have interpreted international treaties to mean something quite different from the way their framers intended.

And with the case of Golajan Tarakhel, the ECHR has taken upon itself to trample all over the Dublin Regulation and EU Treaties on a whim. A mixture of unaccountable power with the increasing role of pressure groups has led to a disproportionate effect despite only appealing to a narrow politically active section of the electorate. This has led to mission creep or what is known as “rights contagion”. 

Thus inadvertently what we have here is a war of the supranationals. Jean Monnet despised democracy, and its messy outcomes, and wanted an "organised world of tomorrow" What irony then, and with some amusement, that the mess he left us was at least two supranational organisations at odds with each other - the failed Council of Europe, and its court, now trying to exercise its power against its EU successor.

What is clear is to regain control of our borders we must also remove ourselves from the ECHR as well. Out of this though emerges an interesting question; if the UK joins EEA/EFTA as part of the Flexcit process of exiting the EU would leaving the ECHR as well jeopardise our position in EFTA/EEA?

Firstly it's important to note that membership of the EU does not mean we have to remain members of the ECHR. It is not a requirement of existing member states.

There is no explicit clause in EU Treaties for existing member states to come under the jurisdiction of the ECHR, a point which as we see on Question Time 2012 left Nigel Farage backtracking somewhat under pressure. Nothing in the relevant EU treaties requires adherence to the ECHR as a condition of continued UK membership of the EU - if they had meant to say that, they would have said it. But they didn't.

As Julien Frisch notes on his now defunct blog (my emphasis):

Since through its member states the legal traditions of the ECHR are also informally part of the EU's legal traditions, the European Court of Justice (the EU's court) is already taking into account rulings of the European Court of Human Rights, but so far there is no legal obligation for the Union to follow the Human Rights Convention's provisions.

As per our membership conditions the UK only has to conform in principle, confirmed by the EU Commission:

Respect for fundamental rights as guaranteed by the European Convention on Human Rights is an explicit obligation for the Union under Article 6(2) of the Treaty on European Union, and the Court of Justice has held that the Convention is of especial importance for determining the fundamental rights that must be respected by the Member States as general principles of law when they act within the scope of Union law.

The rights secured by the Convention are among the rights guaranteed by the Charter of Fundamental Rights of the European Union. In the negotiations for the accession of new Union members, respect for the Convention and the case‑law of the European Court of Human Rights is treated as part of the Union acquis.

Any Member State deciding to withdraw from the Convention and therefore no longer bound to comply with it or to respect its enforcement procedures could, in certain circumstances, raise concern as regards the effective protection of fundamental rights by its authorities. Such a situation, which the Commission hopes will remain purely hypothetical, would need to be examined under Articles 6 and 7 of the Treaty on European Union.

In other words the Commission’s reply confirms that European Convention standards are general principles of EU law. Thus as long as the UK adheres to the principles of the European Convention even via a domestic bill, for example - a UK Bill of Rights which closely follows the Convention - there is no need for a EU requirement for membership of the ECHR to enforce it. This enforcement could be done by domestic judges alone.

However complication, in terms of EU membership, comes in the form of the European Court of Justice (ECJ). The Lisbon Treaty gave an enhanced role to the ECJ in human rights protection with the Charter of Fundamental Rights of the EU. The ECJ less an independent judiciary body but more a fundamental component to help facilitate European political integration.

While Lisbon broadened the scope of human rights protection within the EU, it came with a problem of overlapping jurisdiction. There are now two equally binding legal texts, the Charter of Fundamental Rights of the EU and the European Convention of Human Rights, and subsequently two corresponding European courts; the ECJ and the ECHR both concerned with human rights protection but also inevitably concerned with who will be 'top dog'. A problem which was compounded by Article 6 (2) of Lisbon which requires the EU to join the Council of Europe given that it now has a legal personality. Some five years later the legal complications have yet to be resolved.

Inevitably therefore the opaque imprecise nature of implication often leads to contradiction and dispute between differing supranational bodies each eager to assert its supremacy - in blunt terms a penis measuring competition.

Therefore we can see that one benefit of leaving the EU but retaining a EFTA/EEA status would remove us from the ECJ jurisdiction and as such removing a possible judicial conflict. Also EFTA/EEA status means that no longer is "Single Market status" one of a supranational organisation but instead is made up of treaty rules which are agreed by countries with the EU rather than between EU "member states".

Yet despite this another possible supranational conflict may arise. Similar to EU membership there is also no specific requirement in the 1994 EEA agreement for countries to join the Council of Europe and thus come under ECHR jurisdiction.

That said the question of whether EEA countries had to be members of the Council of Europe never arose as a political issue due to applicants already being long-standing members of the Council of Europe when they joined the EEA; Norway in 1949, Liechtenstein in 1978 and Iceland in 1950. In fact no country has ever applied to be a member of the EU or EEA without first being a member of the Council of Europe and no country has ever left it.

But while EEA members are directly removed from the ECJ they rather like EU member states still have implicit obligations to the ECHR not explicit ones and they are subject to another supranational court - the EFTA court which is modelled on the ECJ. The implicitly of ECHR obligations are made clear in the preamble of the EEA agreement that "a European Economic Area will bring to the construction of a Europe based on peace, democracy and human rights".

Thus although not specified in terms of adherence to the ECHR, the EEA agreement it is argued could be endangered if EFTA states were able to obtain advantages, for example in competition, by applying provisions of European integration law in a manner conflicting with the ECHR. But even here we can see that the EFTA Court is willing to stand up to the EU and the ECJ when it ruled that Iceland did not break EU depositor protection laws by refusing to return Icesave money. 

Thus Europe is awash with unaccountable supranational courts each eager to compete with the other. So as Switzerland has shown we are beginning to seeing a conflict between these competing and incompatible supranational bodies and democracy - where despite a vote earlier this year imposing limits on immigration, Switzerland has been caught by an ECHR judgement on deportation.

In the words of Chris Grayling over prisoners right to vote; "Parliament must squarely confront what it is doing and accept the political cost".

Kicking The Arse Out Of Deja Vu...

The running sore that is the Human Rights Act and the European Court of Human Rights means there is more faux outrage from the Tories, and the Telegraph about it:

Chris Grayling, the Justice Secretary, slams 'unacceptable' interference by Strasbourg judges as one of Britain's most dangerous terrorists claims his rights were infringed

The inteference?

One of Britain’s most dangerous al-Qaeda terrorists is seeking to have his conviction overturned on human rights grounds, The Telegraph can disclose.

[Abdulla Ahmed Ali] alleges the jury would have been prejudiced by media coverage of a previous trial. 

And of course it's "unacceptable" - it goes to the heart of our country's sovereignty and democracy.

In response Mr Grayling goes on to say that the Conservatives will go into the next election promising abolition of the Human Rights Act (HRA). But one asks how abolition of the HRA will defend ourselves against the European Court of Human Rights (ECHR) especially taking into account that the Act was passed to help give UK courts a mechanism to remedy breaches of a Convention right, without having to go straight to the Strasbourg court.

So are the Tories proposing scrapping the HRA but staying in the ECHR?  If so this would still leave the Home Secretary powerless to deport individuals in the interest of national security.  Or do they want to pull out of the ECHR altogether? Leaving the Strasbourg court would mean not only the UK is out of step with its international obligations but would also mean having to leave the EU altogether. A condition of EU membership is to be a member of the Council of Europe - thus the ECHR. Leaving the EU is a course of action the Tories will not contemplate.

Naturally we've been here before with Tory rhetoric on ECHR rulings, many times:

Britain may have to pull out of the European Convention on Human Rights entirely in order to extradite foreign criminals, David Cameron says.

And here in (2006):

Mr Cameron claimed existing human rights legislation was hindering the fight against crime and terrorism, at the same time as failing to protect people's civil liberties. 

And here (2011):

Theresa May, the Home Secretary, risks an explosive rift inside the Coalition with an explicit call for the scrapping of the Human Rights Act.

And here (2013):

Theresa May, the Home Secretary, said that "by 2015, we'll need a plan for dealing with the European Court of Human Rights". "And yes, I want to be clear that all options - including leaving the convention altogether - should be on the table."

And here (2010), "it makes me physically ill to even contemplate to give anyone in prison the right to vote" says Cameron.

Not forgetting that "abolition of the Human Rights Act (HRA)" was exactly the promise they went into the last election, then...look what happened in 2010...

The Daily Mail revealed yesterday that the flagship Tory commitment to scrapping the Human Rights Act and replacing it with a British Bill of Rights is to be put on the back burner.

Then we're reminded that Cameron is not opposed to another coalition in 2015...

 Clegg and Cameron 'in secret talks on setting up a second Coalition' despite backbench opposition

So what is it? Repeal the HRA, but remain in the ECHR, leave things the same, or leave the HRA and the ECHR but try to remain in the EU or just leave everything. Who knows? The Tories don't. This is what happens when you first set out to deceive...

Put Up Or Shut Up

On one level, as Richard North says, the saga raises a wry smile at the massive pickle the Government have got themselves into over the release of Abu Qatada and the Human Rights Act.

One can also take a small crumb of comfort that this is yet another nail in the coffin that is our EU (and Council of Europe) membership. No longer is it about 'bent bananas' but real tangible, easily understood and toxic issues.

As always though there is a price to pay. And that price is the sight of the odious slime Nick Clegg faking concern:

Mr Clegg, the Deputy Prime Minister, said the government would appeal the ruling.

“We’re determined to deport him,” he told ITV’s Daybreak. “We strongly disagree with the court ruling, we’re going to challenge it, we’re going to take it to appeal".

“We’re absolutely determined to see this man get on a plane and go back to Jordan. He doesn’t belong here, he shouldn’t be in this country, he’s a dangerous person. He wanted to inflict harm on our country and this coalition government is going to do everything we can to challenge this every step of the way to make sure he is deported to Jordan.”

Utterly shameless, here he is in 2011:

Nick Clegg has issued a trenchant defence of human rights laws, setting out their strengths and saying his party will not let Conservatives water them down should there be a fresh push to renegotiate legislation.

I'm not a man usually prone to violence, but I'm thinking of ways that I can herd Nick Clegg et al over the nearest Buffalo Jump.

I'm heartily sick of it.

Things Can Only Get Much Worse

The Eurozone sits on the edge of collapse with the usual chaotic and rudderless lack of leadership from the EU on how to fix the crisis. The EU first indicated that a European banking rescue, as demanded by the markets, was on the cards and now EU Monetary Affairs Commissioner Olli Rehn has denied it.

So what have the Tories to say about this looming disaster on our doorstep? Well they're too busy squabbling over the Human rights act, squabbling over a referendum on the EU, effectively admitting that there will be no repatriation of powers (if that were ever possible) and criticising someone else for not holding a referendum.

Then Prime Minister tops it all off by suggesting that the solution to the current crisis is for everyone to pay off their credit cards. As Richard North says, Cameron is not even in this galaxy.

Now the Telegraph writes:

It's now being reported that the Prime Minister won't be telling us all to pay off our credit card bills in his speech at the Tory party conference this afternoon, after the idea got a fairly terrible reception this morning.

Oh FFS! The Eurozone, and possibly the world economy, is on the brink of the abyss, Greece is ripe for a coup d'état and this is the best the Tories can do? It is draw-droppingly pathetic.

We really really deserve much better than this.

Ryan Giggs

Finally, Mr Giggs has been named in parliament as the footballer who has an injunction against Big Brother (how ironic) wannabe contestant Imogen Thomas.

As I've blogged before, and like many others, I couldn't care less about Mr Giggs' personal life, but I do care that his actions have led to the possibility of journalist Giles Coren being arrested in secret, tried in secret (without a jury) and jailed in secret - for the first time in British history.

Oh what a wonderful mess the European inspired Human Rights Act has made of our justice system.

The Super-Injunction Farce

The press have got themselves in a lather over the release of information on twitter of some of the names behind the recent super-injunctions. I don't really care what z-listed celebrities get up to in their private lives, but I do care about a free press. Not having a free press leads to this and this.

Most of the information on that twitter account appears largely correct - the Spanish press have already named the footballer. However Clarkson doesn't have an injunction for the reasons stated. Given that the press have been dropping clues all over the place - for example this odd article from yesterday's Mail on Sunday about Hugh Bonneville - most of the information is probably common knowledge now anyway.

Of course Parliament could do something about judges effectively writing a privacy law, but, apart from a couple of notable exceptions, I wouldn't hold your breath.