We will not be bullied by Brussels over human rights

Instead of slavishly following the ECHR, Britain should seize this chance to craft its own laws

Last Thursday, Michel Barnier protested that the UK will not commit formally to staying in the European Convention on Human Rights (ECHR). Brussels is demanding this commitment in the future relationship agreement with the UK. But Boris Johnson’s Government is absolutely right to refuse to lock Britain into future membership. Quite understandably, the need to sort out the legal complexities of Brexit has meant that some serious problems caused by Tony Blair’s 1998 Human Rights Act and by the UK’s relationship with the Court of Human Rights in Strasbourg have had to be put on the back burner. But these problems will need to be tackled before too long.

The ECHR sets out a series of basic rights with which almost all across the political spectrum would agree. The

UK government played a big part in negotiating it, to act as a bulwark against countries sliding back into fascism after the Second World War.

But we are not now dealing with the original convention text as it was written: its meaning has been transformed by judgments of the Strasbourg Court that claim to “interpret” the convention. But in fact they create doctrines that are not based on the convention text – and sometimes are even demonstrably contrary to the intentions of the states that drew up the original convention.

There are three hugely important areas where the Strasbourg Court’s judgments have created such new doctrines. Voting rights for prisoners are not based on the convention text, which simply calls on states to hold free and fair elections. The diplomatic drafting conference deliberately chose to reject an amendment that would have created an individual right to vote, after the UK delegation raised the issue that the UK did not permit convicted felons to vote.

Secondly, convention rights were restricted to the home territories of the convention states. Absurdly, the Strasbourg Court has held that these rights extend to anywhere a state exercises control, including territory occupied in an armed conflict where a completely different and incompatible part of international law governs the rights and duties of occupying powers. This caused huge problems during and after the Iraq conflict and in Afghanistan, and threatens to cause problems wherever the UK’s Armed Forces are called on to act in future.

Thirdly, the ECHR does not deal with rights of asylum, because the same group of countries were simultaneously drafting the Geneva Refugees Convention to cover that subject. But the Strasbourg judges have engrafted a number of asylum-type rights on to the ECHR which have caused particular problems in securing the expulsion of terrorist suspects from UK territory. In effect, the Strasbourg judges have acted as legislators creating new law – for which they have no democratic mandate – instead of sticking to interpreting the text of the convention according to its intended meaning.

There have been calls to replace the Human Rights Act with a new home-grown UK Bill of Rights. I was one of the majority of members of the Cameron government’s commission on the subject who backed this move. It could lead to the more effective protection of rights where they deserve to be protected, if those rights are respected as arising from the UK’s own long tradition of safeguarding liberties. And those rights would cover the ground of the rights protected under the text of the ECHR.

Pending such a longer-term reform, one possibility could be for Parliament to lay down that certain laws – such as those governing the Armed Forces in conflicts – should apply notwithstanding the Human Rights Act, in order to prevent aberrant doctrines of the Strasbourg Court being followed in UK courts.

This is probably worth doing in certain vital areas, but could still lead to conflict with the Strasbourg Court at the international level. So if it proves impossible to reach a satisfactory resolution with the Council of Europe of the UK’s legitimate concerns, it may be necessary to leave open the door to the more radical step of withdrawing from the ECHR – not to escape the convention itself, but to end the obligation to comply with each and every one of the Strasbourg Court’s misinterpretations of the convention.

The EU’s attitude to the ECHR is similar to its attitude in a number of other areas: it seems unable to accept that the UK will continue to apply the highest standards, in the field of human rights as elsewhere, but this does not mean that the UK needs to comply with every dot and comma of the EU’s own chosen rules.

Brexit should mean that we recover the right to take back control of our human rights law.