Friday 11 December 2015

The European Court of Human Rights - Vital or Vicious?

As a Libertarian I am often asked where we draw the line between rights and responsibilities. How do we balance the needs of the individual with the needs of the many? This is a very difficult question because different rights require different limitations. Under the European Convention of Human Rights there are qualified rights and limited rights. Limited rights are things such as article 5 which states that even though you have a right to freedom, it can be taken away if you are found guilty of a criminal act or are detained for mental health grounds. Qualified rights such as article 11, the freedom of assembly, can be restricted for a variety of reasons such as national security and the prevention of crime - provided the state has legitimate aim for such restrictions and they are necessary in a democratic society.

The problems with this however is that the British state does seem to have a bit of a track record for getting it wrong. In fact the claim was made in 2012 that the UK lost 3 out of every 4 cases that were brought against it at the European Court of Human Rights. This has led to some people wanting to withdraw from the European Court System amidst claims that it is undermining our Parliamentary Sovereignty.


As someone who studied Law at University, with a special emphasis on Human Rights, I have to say that while I am not overly fond of the idea that a supranational court is overruling our elected Parliament I do understanding that there must be limits placed on our government for the good of our society. This was a principal accepted as early as 1215 AD with the signing of Magna Carta and this is the principal which developed our modern Parliamentary Democracy as a check on the power of the absolute monarchary. 


Our metaphorical cousins in the USA, when writing their constitution, decided to ensure that no branch of Government was above the others and that no overlap existed between them. This was to ensure that there was fairness in the law. That their Congress could not pass draconian measures without the Supreme Court or the President vetoing them. In our own system no such separation of powers exists. Parliament is supreme and whilst the courts can on occasion practice Judicial Oversight they cannot outright strike down laws, merely ask Parliament to reconsider them.


This is a huge gulf in terms of checking the power of the state as Parliament both decides the law and decides whether the law is valid.


This is where the European Court of Human Rights comes it. It does have the power to rule against the UK Government and under the Human Rights Act 1998 our Courts must take the rulings of the European Court of Human Rights into account as part of our domestic law as well as the rights provided by the European Convention themselves. This is a huge check on the power of the state - but not one which we control as part of our domestic law and there-in lies the problem because at times they have overreached themselves and the Home Secretary herself claimed they had 'moved the goalposts' and created unprecedented change outside the scope of the Convention Rights.

Michael Gove as Justice Secretary has been tasked with solving this problem for Britain. He will draw up a British Bill of Rights and he will blaze the path forward as to whether we remain part of the European Court of Human Rights at all. 

I sincerely hope Mr. Gove will pay attention to the need for us to have a check on Government power while drafting his proposals and I for one look forward to seeing them. 

As for the European Court... the independent recently ran a piece in which it claimed the occasional bad ruling from them was the price was pay for the rule of law. However to borrow from my personal legal hero Lord Denning I am concerned with Justice not the rule of law and to me there is no Justice to be found in a court which does not even feign to understand British Values.


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