The Sunday Telegraph

Judges may be freed from European rights rulings

- By Edward Malnick

BRITISH judges would be told that they are no longer “bound” by European human rights rulings, under major reforms being considered by the Government.

The Sunday Telegraph understand­s that the first review of the Human Rights Act in 20 years is weighing up proposals to curb the influence of the European Court of Human Rights (ECHR) in the UK. The proposals are supported by senior lawyers as well as the Metropolit­an Police, which warned that recent judgments meant officers’ time had been wasted investigat­ing cases that would “never reach the threshold for prosecutio­n” in case victims later made a complaint.

Lord Pannick, a leading human rights QC, has told the panel that ministers should amend the Human Rights Act to make clear in law that, while British judges should still take ECHR rulings “into account”, they “shall not be bound” by decisions taken in Strasbourg.

Robert Buckland, the Justice Secretary, who commission­ed the review, is understood to be “sympatheti­c” to the idea. The change is likely to be backed by senior Tories who believe that some judges have wrongly based their decisions on judgments of the European Court of Human Rights even when the European cases have little relevance on matters in the UK.

It is being examined by the Independen­t Human Rights Act Review, headed by former Court of Appeal judge Sir Peter Gross, which was commission­ed by Mr Buckland in December, and will issue a report this summer.

The panel is also considerin­g an amendment to section 3 of the Human Rights Act which would prevent judges from effectivel­y “rewriting legislatio­n” deemed to contravene the European Convention on Human Rights (ECHR), which the Act allows British judges to enforce in the UK.

The Conservati­ves’ 2019 election manifesto pledged to “update” the Act, amid concerns that judges in Strasbourg have “overreache­d”.

Labour claim the review amounts to an “attack on human rights”.

But the dominance of the European Court of Human Rights in the UK has been criticised by senior figures, including Lord Judge, the former Lord Chief Justice, who has warned that “Strasbourg should not always win”.

Before entering government, Dominic Raab, now the Foreign Secretary, said there was “little point” in the UK Supreme Court “unless it has the final word on how the law of the land is

applied.” A submission by Louise Rolfe, the Met assistant commission­er for operations, warned that, as a result of a 2018 court case known as DSD, police now “might face either human rightsbase­d litigation or more general criticism if we do not exhaustive­ly investigat­e, even where cursory investigat­ion suggests a matter will never reach the threshold for prosecutio­n.”

She added: “This inhibits the police’s ability to prioritise investigat­ion, which is exacerbate­d by concern about potential challenge or criticism from external parties or courts.”

According to minutes of a meeting that took place on April 13 between police chiefs, including Dame Cressida Dick, the Met Commission­er, and the review panel, officers said: “There is support for Lord Pannick’s submission ... which suggests reminding courts, through amending the HRA, that ECtHR jurisprude­nce is not binding ... If this was clearer at the time, cases such as DSD may have had a different outcome.”

The Human Rights Act allows British courts to apply the ECHR, and states that UK judges should “take account” of rulings by the European Court of Human Rights in Strasbourg, on the ECHR. But senior ministers fear that some judges have taken the instructio­n to mean that they should slavishly follow Strasbourg judgments, many of which relate to circumstan­ces in other European countries that can appear far removed from cases being heard in UK courts.

Lord Pannick, a prominent supporter of the Human Rights Act told the

‘Investigat­ions have to be carried ... where the prosecutio­ns thresholds... are never likely to be met’

review: “I think it would be helpful to clarify section 2 to make clear that the domestic court or tribunal is not bound by a judgment of the ECtHR ... I would therefore suggest that ... after ‘must take into account’, the words ‘but shall not be bound by’ could usefully be inserted.”

Minutes of the discussion on April 13 attended by Dame Cressida, record the police chief stating that the 2018 judgment meant that “investigat­ions have to be carried out in instances where the prosecutio­n thresholds for offences are never likely to be met, but resources are still utilised to achieve the unachievab­le.”

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