Tuesday, 24 January 2012

Reforming Human Rights

David Cameron came under fire from the President of the Strasbourg Court in today's Independent, here, in advance of a speech the PM is giving tomorrow setting out UK plans to reform the Strasbourg Court.

I have made the case for Strasbourg reform in the Daily Telegraph tomorrow - you can read the article here.


Denis Cooper said...

"As a consequence, Attlee signed up to the Convention, but not the Court. It was not until 1966 that Harold Wilson submitted Britain to Strasbourg’s jurisdiction."

This is a puzzling claim, not least because the Court was established through the Convention.

So what is Dominic Raab saying?

That what is now Article 46(1) of the Convention on page 26 here:


"The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties."

was not part of the original Convention?

I've previously read an attempt to blame Blair:


"The supremacy of the Strasbourg Court’s judgements is a comparatively recent development - until 1998, when Protocol 11 was introduced, being a signatory to the European Convention of Human Rights did not necessarily mean accepting the supremacy of the judgements of the European Court of Human Rights over national courts and parliaments."

But that was complete nonsense as this website has the Convention as it was in 1995, long before Protocol 11:


and Article 53 of the Convention then said:

"The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties."

Now we are supposed to blame another Labour Prime Minister, Wilson, for first submitting us to Strasbourg's jurisdiction in 1966.

But is that true, and if so how did he do that?

The website dating from 1995 has:

"The European Convention on Human Rights

ROME 4 November 1950

and its Five Protocols".

The last of those Five Protocols was in 1966, and none of them introduced the principle that judgements of the Strasbourg court would be binding on the High Contracting Parties - in fact Protocol 2 had moved more in the opposite direction, by allowing the Court to give advisory opinions.

It would be helpful if Dominic Raab explained precisely how he thinks Atlee avoided accepting the part of the original Convention which said:

"The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties."

because it seems that it was part of the original Convention, and precisely how Wilson then accepted the binding character of Strasbourg judgements in 1966.

But in any case, is there any reason why the UK should not derogate just from the present Article 46(1) of the Convention?

It would be more honest to say:

"In the light of our experience with the increasingly absurd ways in which this Court has been developing its case law, we no longer undertake to abide by its judgments"

than to adhere to Article 46(1) but simply disregard the Court's judgments or attempt to wriggle out of them.

Dom Raab said...

When the Convention was created (and the UK signed up), the right of individual petition was optional. There have been various Protocols amending the Convention and enforcement mechanismssince then. The UK submitted to that jurisdiction of the Court in 1966. This is not historically or legally contentious in the slightest.

If you are really interested, I recommend the following article on the history:

Geoffrey Marston, ‘The United Kingdom's Part in the Preparation of the European Convention on Human Rights, The International and Comparative Law Quarterly, Vol. 42, No. 4 (October 1993).


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