ECHR is incompatible with our constitution - Steven Barrett
ECHR is incompatible with British constitution, writes Steven Barrett
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Everything born in international law is mired in confusion, so let’s start with the basics, by ECHR, I mean the Court in Strasbourg. I don’t mean the Convention, which in a deeply unhelpful way, shares the same acronym. Nothing wrong with the Convention (it’s remarkably British), no the thing that is broken is the Court. Why?
There are two fundamental reasons First, it is a political Court and we require our Courts and Judges to be non-political. Secondly most of the other countries can ignore the rulings, but we can't. And as a result it runs our legal system, despite not being elected.
How is the Court political? To be political you must advance policies. Now, with some irony, ‘leaving everything as its is’ is also a policy, so that doesn’t always mean changing things. But it is pretty hard now to deny that this Court, is playing politics. This week came the Swiss case which is turgid, even to eyes like mine. It is, I suspect long and turgid for a reason – to confuse and bamboozle the reader into submission. It found, in essence that group of Swiss women suffered a violation of their right to a fair trial, despite them going to court in Switzerland twice. It also found that ‘climate change’, which they believe to be real, violates their right to a private life.
This is, let’s not beat around the bush, complete bunkum. It is the Court, adopting a policy (being anti climate change) and using a case to get its own way. The case is even more egregious, as Switzerland had rejected this idea via a direct ballot in a referendum. Recently we also had the Romanian case, where the Court used the right to freedom of expression to say that Judges can be political. This is a direct assault on our constitution. Because our constitution believes Judges and Courts can’t be political – indeed a judge just resigned over that.
Now, other countries deal with the ECHR by just ignoring its decisions. Over 10,000 judgments are still not followed. And very publicly France just ignored it.
But we can’t. Why? Well firstly, to openly defy a judgment requires real political will. The UK showed that with the Prisoner voting case. But it has turned out to be something of a one off. And in that case a deal was eventually reached with the ECHR to let it go.
Red flag diligent reader – a court with whom you can negotiate is not a court. It’s a politician. But even were we to ignore cases, there is an open back door into our legal system. Section 2(1) of the Human Rights Act 1998 says our judges must take the cases of the ECHR seriously and follow them. Even if you got rid of this law, it is highly likely our courts would themselves find that ECHR cases are binding as long as we remain members.
Further, because of the Human Rights Act, individuals can now bring cases in our own courts. Trying to get them to follow the ECHR, and effectively politicising our own judges – in direct breach of our constitutional principle of Judicial Impartiality.
I cannot call publicly to leave the ECHR. To do so would be to advocate a policy. But I can, as law, highlight the structural weaknesses which represent a clear and present threat to our country. I can highlight that while we belong to it, it has mastery over us and it is not democratic – making it a bureaucratic dictator. I can tell you that of the 47 judges, only one is
an expert in our law – the rest are unqualified amateurs. I can tell you that if you leave, you won’t lose a single actual human right. And I can tell you all that you’ll pay over £44 million for it this year.