We've discussed the ECHR quite a bit on Munguin's Republic over the last few days since its continued existence became a point of some dispute.
I was interested to read this article in the Independent, which I reproduce here, without permission.
It makes a point that the UK government can't actually stop UK citizens petitioning the court in Strasbourg unless the UK disassociates itself completely from the Convention, which it was largely instrumental in setting up.
It points out too, that the UK government would be required to get the approval of the Scottish parliament before it could remove the ECHR legislation from Scots Law. Under the present parliamentary arithmetic, that would be out of the question, but under other possibilities, it would still be extremely unlikely to happen.
Furthermore, it highlights the fact that the ECHR is incorporated into the Good Friday Agreement in Northern Ireland.
Can you imagine someone of Gove's limited intellect, capabilities and understanding tacking negotiations for a re-write of the Good Friday Agreement?
Here is the article, as always I'd be interested in your thoughts:
In their 80-page manifesto the Conservatives dedicated
less than 50 words to a subject that is set to become the biggest test of David
Cameron’s authority and the Tories’ small parliamentary majority.
“The next Conservative Government,” it said, “will scrap the
Human Rights Act, and introduce a British Bill of Rights. This will break the
formal link between British courts and the European Court of Human Rights
(ECHR), and make our own Supreme Court the ultimate arbiter of human rights
matters in the UK.”
In the run-up to the election most commentators assumed the
pledge was only there to appease the Tory right and would be kicked firmly into
the long grass – even with a Tory majority government. Now it seems Mr Cameron
and his new Justice Secretary, Michael Gove, are deadly serious.
Senior Conservatives have briefed that abolishing Labour’s
1998 Human Rights Act will be a central part of David Cameron’s 100-day policy
priorities.
Mr Cameron faces a battle royal with the judiciary and the
devolved administrations in Scotland, Wales and Northern Ireland – not to
mention significant numbers of his own MPs. At the heart of the proposals is an
attempt to rein in a Strasbourg judiciary that the Tory right blames for
stopping the Government deporting foreign criminals and restricting the rights
of prisoners to vote.
The new British Bill of Rights would restrict the use of
human rights laws “to the most serious cases” and allow Parliament to ignore
rulings from Strasbourg that it did not like.
The first problem with the Conservative proposal is that it
is not possible for the British Government to “break the formal link” between
the UK and the European Court of Human Rights without withdrawing from the
Convention completely.
That is because, under our treaty obligations, we have
accepted the Strasbourg court as the ultimate arbiter of Convention violations.
For years before the Human Rights Act was introduced,
members of the public with a legal grievance used to petition the Strasbourg
Court directly because they could not go through the English court system. That
could happen again if a Tory Bill of Rights is incompatible with the Convention
in areas such as prisoner voting.
The only way to guarantee supremacy for a new Bill of Rights
would be to withdraw from the Convention altogether. And that would have
profound consequences. Britain was one of the first signatories to the
Convention, which was drawn up after the Second World War in response to the
human rights abuses of Nazi Germany.
It has over 47 signatories and through the ECHR is widely
credited with improving human rights in areas such as minority rights, freedom
of speech and unlawful detention through international independent judicial
oversight.
As the former Conservative Lord Chancellor Kenneth Clarke has pointed out, if
Britain decided to pull out of the Convention or ignored the bits it didn't like, other countries, with far worse human rights records, could do likewise.
Separate but related problems would arise in Scotland and
Northern Ireland.
The SNP-led Scottish Government is strongly opposed to any
attempt to repeal the Human Rights Act or to withdraw from the European
Convention on Human Rights.
And, under the terms of the devolution settlement, to do so
would, by convention, require the consent of the Scottish Parliament. Without
that, the Government could end up in the constitutional quagmire of having a
new British Bill of Rights in England that was not accepted or acknowledged in
Scotland.
As for Northern Ireland the problems are even more
intractable.
The ECHR is integrated into the Good Friday Agreement and to
fundamentally alter how it is given legal effect in the province would almost
certainly require the rewriting of the Good Friday Agreement – not something
any British politician would want to undertake lightly.
All this adds up to a mighty headache for Michael Gove, who
has been charged with drafting a new British Bill of Rights.
(Emphasis, and pictures with the exception of the 2nd one, are Munguin's addiditons.)