Coffee House

Improve human rights by quitting Strasbourg court, Tory Bill of Rights advisers argue

18 December 2012

As expected, today’s report from the Commission on a Bill of Rights offered little. With a membership evenly split between Tory and Lib Dem nominees, it was set up to fail.

Michael Pinto-Duschinsky, who resigned from the Commission in March, tells me that this problem was exacerbated by the way in which it was run: it was barred from discussing either the European Court of Human Rights or the Convention. He says:

‘The Commission was not able to have a productive discussion because of the determination of the civil service to produce an artificial argument’.


Attention now moves to what the Conservatives will say about the matter in their manifesto. In a paper published as part of today’s report entitled ‘Unfinished Business’ (p182 onwards), Lord Faulks QC and Jonathan Fisher QC warn that the Strasbourg Court’s  ‘judicially activist approach’ means ‘the notion of human rights has been devalued in the eyes of the public’. This report, which isn’t supported by all the members of the Commission, adds:

‘Mindful of the Court’s activist approach, there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights, or at the very least a renegotiation of the UK’s terms of membership so as to free it from the strictures of the Court.’

Pinto-Duschinsky is pleased that this paper has moved the debate on to the role of the Court, and this is the opinion of a growing number of Conservative cabinet ministers. But we know that Dominic Grieve, the Attorney General, disagrees with this view. Between now and the publication of the next Conservative manifesto, there’s going to be an almighty tussle over this issue.

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    Why do we imagine that those politicians who are the cause of our demanding a Bill of Rights should be the ones who get to draft it?

  • JanCosgrove1945

    The ECHR makes it clear that its provisions are minimum standards and that any state is free to enact domestic legislation that is superior.

    “ARTICLE 60
    Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.”

    So, there is no need for denouncing the Convention or its substitution by a Bill of Rights – the argument against, surely, is that, should a UK Government trample on those rights, we would still have recourse to Strasbourg. But we can build on the ECHR with superior laws which, think about it, could serve to promote improvements in the Convention over time – don’t we have any pride that, in fact, the ECHR has brought to Europe the British outlook on civil rights? We would leave what we bequeathed to Europe emerging from tyranny? Unthinkable – how childish to want to do so just because we don’t like some of its Court’s decisions. And what makes anyone think that a decent UK domestic substitute would a) be based on anything but the ECHR bedrock of principles and b) that its judicial arm would make different decisions? Or that it would be other than last-resort after all other remedies exhausted?

    There is also the issue of subsidiarity as provided in Article 13 of the Convention:

    “ARTICLE 13
    Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

    Now this is an article NOT incorporated into the Human Rights Act – anyone explain why? – but it is a straight invitation to get things settled domestically, indeed an expectation. This is repeated elsewhere – Article 26 for example. Would it mean setting up UK HR Tribunals? Or could the function be legislated into our courts system?

    So, one way of ensuring UK Courts/Tribunals deal with nearly all cases is to incorporate A13 which will enable decisions about alleged breaches to be made within the scope of all UK laws relating to human rights as well as the ECHR. Much simpler than denouncing the Convention – which is provided for under A65, but note para 2 of same:

    “Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.”

    That will leave 62 years of time-frame even from now, and no amount of jingoistic prattle or obfuscation will get around that. If we didn’t want this, we never should have signed. We did. Get used to it, denunciation is a futile business, go for subsidiarity which, for heaven’s sake, has been there in A13 for 62 years .

  • hornblower

    This behemoth is more HG Wells than architect or engineer

  • Anthony Makara

    We need a bill of rights that protects White-Britons from Positive Discrimination, which by any measure is racism. This racism comes from Government at the behest of certain pressure groups, many of which are openly left-wing and anti-establishment. If we are to talk about rights we must end all Positive Discrimination and allow all groups to be appreciated on merit

  • Hornblower

    I thank god that building is not sited on the South Bank

    • the viceroy’s gin

      That’s exactly what I thought. Some poofter architect drew up that design, and it’s ugly as sin, and twice as kitschy.

      It’s sad, the type of postmodern blowfunk that passes for municipal building these days. And the fact that this ADD-ridden design houses a court hungry for legitimacy lets us know how illegitimate that court truly is, because obviously it says so, right on the label.

      • HooksLaw

        Sir Richard (Lord) Rodgers. Such a poofter he has 10 grandchildren.

        • the viceroy’s gin

          Well, the first bit pretty much guarantees he’s a poofter, doesn’t it?

          • dalai guevara

            The power engineer comments on…architecture? That I have got to hear.

            • the viceroy’s gin

              I think you’ll find that architects are subsumed by engineers in most (productive and successful) facilities projects. Architects are professionally inferior to engineers, afterall.

              Not that I’d expect you to understand that, because, well…. you’re stupid.

              • dalai guevara

                Your limited horizon exposed yet again. You will find that in other places, architects are in fact…engineers.

                • the viceroy’s gin

                  Not that you’d know the difference either way, because, well… you’re stupid.

                • the viceroy’s gin

                  …oh, and in no place are architects “engineers”. Architects are inferior, professionally, academically and in about every sense imaginable, particularly regarding productive and successful work.

                  Which you’d know if you weren’t… you know… stupid.

                • dalai guevara

                  Perhaps you need to get out more and meet architects who are engineers at the same time. Mind you, that won’t be required if all you are after is yet another nuclear shed.

                • the viceroy’s gin

                  As mentioned, you wouldn’t know the difference either way, because, well, you’re stupid.

                • the viceroy’s gin

                  Although, yes, some folks in this world are educated and move beyond the inferior to the superior, and become engineers.

                  And then there’s the stupid, who lack aptitude for all.

                • dalai guevara

                  have you watched too much teletubbies in your youth?

                • the viceroy’s gin

                  …is that your aptitude level, then?

                • dalai guevara

                  You’re the one with the repetitive stammer. Or is it Channel 4 news?

                • the viceroy’s gin

                  …and I guess a television level of aptitude would likely explain the lack of knowledge re the base professions.

                  Plus…. you’re stupid.

  • Ian Walker

    We shouldn’t have a list of oft-contradictory’ rights’ anyway. Instead there should be one right – free speech, and then a clearly-ordered schedule of ‘responsibilities.’
    The important distinction being that these would impart a clear duty on a member or institution of society, and would establish the precedence of one over another in the event of a conflict.

  • Thick as two Plancks

    We could preserve a high standard of Yuman Rites in the UK while asserting the right to deport any foreigners convicted or reasonably suspected of serious offences. This should apply whatever the reception they might get from their own country.

    When such people object, they should be told that they should have thought of that before they broke our laws. Once this policy became known we might get some proper respect from foreigners who make use of our country.

    It is high time we stopped pretending that the wide world is a moral paradise with just a few regrettable exceptions. We do not rule the world, and we cannot make it all function in our own way. It is difficult enought to govern our own country, let alone the whole world.

    • telemachus

      Whatever else we remain a beacon of moral authority throughout the World, not just Europe.
      We should treasure this status and act as a light in this grim World of darkness
      We all believe in the message of Christmas

      • TomTom

        Britain is NOT a beacon of authority – it is loathed and derided. What “moral authority” did Blair have ? Do tell us about the “message of Christmas” which is clearly a reference to Micah 5:2, Isaiah 7:14, Genesis 49:10, Jeremiah 31:15

        • telemachus

          I prefer

          Romans 15:13 May the God of hope fill you with all joy and peace in believing, so that by the power of the Holy Spirit you may abound in hope.

        • JanCosgrove1945

          Not true as a recent international survey has shown. We stand well respected, if not by ourselves and the constant illiberal hogwash from those who have no respect for the needs of their fellow citizens or guests – we are all scroungers, welfare cheats, low-life – what moral authority do Cameron and Clegg have, their coup-by-coalition, we voted in Blair, they stole their way in, unable to face a fresh election or to try to govern by minority until a motion of no confidence. Now another Mitchell gets fitted up by police verbals. Poetic almost.

    • Madame Merle

      I quite agree.

      There was the case of an illegal from Algeria who, having been convicted of rape, received a non- custodial sentence and leave to remain in the UK.
      His lawyer had argued that he would receive harsh and inhumane punishment if he was sent back to Algeria.

      If scum like this knew for certain that they would be deported, it may deter such crimes being committed.

    • JanCosgrove1945

      And to be a haven of freedom? Lost that label have we? And you trust those governments not to lie where they may be made up of torturers, swindlers, liars and murderers? Not the Britain I want. Does it occur also that any government here able to willy-nilly send people to torture or death might not have too great a respect for your rights too? Oh, we never make use of foreigners do we ….

  • In2minds

    What about my rights to live my life without Helena Kennedy shoving in? That’s what I want.

  • toco10

    How about apologies to the unfairly maligned Andrew Mitchell by Labour and the leftist BBC?.Red Ed the son of a Marxist together with the erratic Ed Balls should be first in line.

    • telemachus

      You forget the epithet
      “if the cap fits”

    • JanCosgrove1945

      And the Tories who stabbed him in the back. I suspect EM will be ahead on this as opposed to such ‘colleagues’ one of whom sat smugly on Channel 4, not an ounce of remorse. And will Cameron now immediately offer Mitchell a new post? Now? The clock starts now ….

  • Ninth Legion

    The very best that a British Bill of Rights would do would be to duplicate the ECHR Human Rights Act. What it in fact will do is to dilute the provisions of the ECHR, leaving the British people at a distinct disadvantage to those in the EU. Could you imagine, for one moment, Labour or Conservative improving on the provisions of ECHR?

    • Ian Walker

      What’s the EU got to do with the ECHR?

      • HooksLaw

        Nothing. Though coincidentally EU countries are in the ECHR. But clearly there are many countries in the ECHR but not the EU.

  • barbie

    The European court rules as long has we are members of the EU, membership can’t be possible without belonging in it. The Human Rights Act makes up that ruling and if we repeal it and have our own bill of rights, we are effectively leaving the EU. Well we can’t have both laws and both Acts at the same time. Which one will it be? Cameron seems to think we can have our own bill of rights and still remain within the EU, its a mystery to me how he thinks we can. His he just waffling on to give his membership of his party some hopes or safe thinking? I just cannot really believe any of this garbage anymore, and until we have a vote, and before the next election has the Tories may not win; then we can see where we are going. If Cameron thinks he can stall forever he’s mistaken. He’s playing a dangerous game and losing support daily.

    • telemachus

      Cameron has played this well
      He with unwitting connivance from Salmond has kicked this to unretreivable long grass pending reasonable Government in 2015

      • TomTom

        If I thought you believed this twaddle I would wonder about your sanity. Denis Healey imposed far more swingeing cuts than Thatcher, and should Labour ever get to power again I fully expect them to dismantle the welfare state and slash spending drastically……only they can dismantle these structures just as only Labour could introduce Tuition Fees and get them accepted and Prescription Charges, and only Labour will be able to introduce fees into the NHS hospitals and cut welfare as in 1931 when they implemented The May Committee. So the only positive thing that could be said for a Labour Government is that the New Guard will unpick the 1945 Welfare State as economic pressures mount and the threat of rising Debt Yields brings the threat of global Bond Market collapse wiping out all Banks and Insurance companies

        • telemachus

          What on earth has all that got to do with Cameron’s low cunning on human/bill or rights?

    • TomTom

      “if we repeal it and have our own bill of rights, we are effectively
      leaving the EU” Only if the Act is recognised by English Courts…if they refuse to accept the legislation as it would be incompatible with EU Writ then Parliament has a constitutional problem… short the issue has to be decided before such an Act can be passed


        Then lets get on and do it

    • JanCosgrove1945

      You need to learn facts. The EU and the ECHR are NOT related at all. Please do make an effort to find out the HUGE difference between the ECHR which comes from our membership of the Council of Europe which is not, will not be, never has been part of the EU. It does help the debate if you would just try a bit harder barbie.

      We did have an EU Referendum, under Labour. I am a Labour member, I voted against – because it is a Rich Man’s Club aimed at the free flow of capital, making the ‘free-flow’ of labour a consequence whose effects we are now seeing. Indeed I posted ‘Necrophiliacs for Europe – We Love Foreign Bodies”. The follies of youth ….

      The lure of international capital against British. What a choice. Do we recall the Czech definition of capitalism and communism? “The one is the story of man’s oppression by man, and the other is vice-versa.”

  • David Lindsay

    A British Bill of Rights:

    “Light sentences and lax prison discipline are both expressions of the perfectly well-founded view that large numbers of those convicted, vastly in excess of the numbers that have always existed at any given time, are in fact innocent. We need to return to a free country’s minimum requirements for conviction, above all by reversing the erosion of the right to silence and of trial by jury, and by repealing the monstrous provisions for anonymous evidence and for conviction by majority verdict. And we need to return to proper policing. Then we could and should return to proper sentencing, and to proper regimes in prison, with no suggestion that prisoners should have the vote. But only then.”

    Plenty of, as much as anything else, thoroughly Eurosceptical stuff over at, leading to:

    “Ed Miliband and Jon Cruddas, over to you. As much as anything else, what would the Daily Mail, which to its great credit has done so much in support of Gary McKinnon, then say? If not “Vote Labour”, then why not? All that Blair managed was The Sun, always a floating voter. Bagging the Daily Mail would put Miliband in a different league altogether. Like winning 60 per cent of the vote in Southern villages that Labour had not contested since the 1970s or earlier, in fact. Or winning Chipping Norton. Both of which he has already pulled off.”

    Comments welcome over there.

    • Colonel Mustard

      I enjoyed reading that, thanks. Some excellent suggestions but I fear that there is no will to turn the clock back.

  • Framer

    Strasbourg may be an activist court but all courts have to be to avoid fossilising and thus take account of changes as they occur over the decades.

    The speed of change may be the issue and the fact that the ECHR is now a human rights industry operation not a court of different states.

    Faulks and Fisher may be right. Withdraw from the Convention and its jurisprudence while enacting the Convention in domestic law and let our courts interpret it. In this way our Supreme Court would be Supreme.

    Take care however that our judges are not becoming human rights industry appointees, as the industry has effectively colonised most university law faculties and evicted ‘old fashioned’ studies.

    • the viceroy’s gin

      Mostly agree, but the courts are supposed to “fossilize”. That’s their job. They don’t make law, they are to wait for lawmakers to do that. If the law in encased in amber, then so should the courts be. If the ECHR hewed to that, the current problems wouldn’t exist.


        Courts should not be making law at all.

  • Rhoda Klapp

    I don’t want any stinking bill of rights delivered by a bunch of appointees. I want the 1689 bill to be enforced. If they won’t do that, what new bill would be any better? Who are those people to dole out rights to me? Who said they could? Which of them understands freedom? The same ones who propose the snoopers’ charter, or detention without trial, or secret courts? Or subjection to foreign jurisdiction?

    • telemachus

      Sounds as if like all reasonable people you wish to keep the current status quo with pan European human rights
      It makes sense and allows us to drag the former soviet satellites up to our standard

      • TomTom

        Good look with Rumania and Bulgaria !!!

        • telemachus

          Precisely that
          Abrogate our responsibilities and we condemn thousands to torture

          • TomTom

            No. They are EU COUNTRIES bound by EU Law. You do not need the ECHR to conflict with the ECJ

            • telemachus


              • TomTom


      • Rhoda Klapp

        No,we the people should be in charge of our own rights. So long as the world is organised in nation states, that is the level at which constitutional and rights issues should be decided. Having said that, I can see that a higher rights statement as a set of principles might be used to measure whether a country meets decents standards, but not as a court which might be approached by individuals with an axe to grind supported by sleazy lawyers seeking to overrule what has already been due process.

        And don’t go around pretending to agree with me, it does neither of us any good.

        • telemachus

          I suggest you read the works of Donald Soper
          The problems of the 20th century were largely those of the nation state
          The EU came into being and recently got the Nobel Peace prize for putting all that behind us
          If we can widen the influence thru the EUCR the world will be a better place

        • JanCosgrove1945

          We signed it, get used to it, even denunciation is futile – see Article 65. And we have surrendered and pooled sovereignty on numerous occasions, notably the UN Charter. It is not easy to get a case before the Court – individuals have to go via the ECHR Commission first. Try it, it’s a set of real hurdles. As for axes to grind, well look at UK Governments and the awful assaults they have made on our rights, muzzling our own courts whenever it suits. No I want a bolt-hole where they can be held to account – and have been.

      • mikewaller

        A very mature and sensible response. I seem to recall that during the “super-gun”affair it was the European court that saved the bacon of the two businessmen who had been betrayed by the Major government.

        Given that kind of background, I very much prefer outsiders having an overview, particularly as this makes it hard for other, much more dodgy, jurisdictions to duck out, as telemachus suggests, Undermining the rule of law elsewhere seems to me an unacceptably high price for enabling delusionals to convince themselves they are latter-day Churchills. The irony is, of course, in our great hour of trial, Winston himself knew that, on our own, we were finished.


          No, I’d rather the law itself stood over the politicised actions of UK judges.

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