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Labour’s Lord Chancellor, Derry Irvine, hit upon a clever idea to quieten any objections about judges thwarting the supremacy of Parliament. It was simply this: Parliament should be assumed to legislate in conformity with human rights so its laws should be interpreted “as far as possible” to have that effect. If a law could not be so interpreted, then the judges would not be allowed to strike it down (as American judges could do) but would merely issue a “declaration of incompatibility” which would be drawn to Parliament’s attention. Parliament could amend that non-conforming law, or not, as it wished, thus remaining supreme. This seemed to work well, and in time judges adapted to the idea that human rights principles were part of UK law and were helped in many cases to do a justice that they could not otherwise have dispensed.

Hostility to the European Convention today is political, and derives in part from the very fact that it is called “European”. The court decisions that have fuelled hostility to it are the long-running Abu Qatada case, about evidence obtained by torture, and the decision that the UK should allow some prisoners to vote. And, of course, Mrs May’s cat.

Abu Qatada — invariably, but wrongly, described as “bin-  Laden’s right-hand man in Europe”, provided headlines hostile to human rights for ten years. The government wanted to deport him for trial in Jordan, where unreliable evidence obtained by torture would be used against him. British judges thought this was fine, because he would not himself be tortured, but Strasbourg drew the line at making any use of torture in the legal process.  He was able to hold out, courtesy of Strasbourg decisions, until Theresa May actually went to Jordan and persuaded them to alter their evidence rules, whereupon Abu Qatada (a man of the most noxious beliefs) voluntarily returned and was acquitted of terrorist crimes. In the end, it might be said, the European Convention had produced a win-win situation: acquittal of an innocent man and the alteration of unfair trial rules in a foreign country.

The other notable case where Strasbourg still disagrees with Tory MPs is over whether the right to democracy entails any rights of prisoners to vote in elections. The case is usually mis-reported: Strasbourg does not say that all prisoners must be allowed to vote, only that Parliament should come up with a law which determines which prisoners should be disenfranchised.  When the same question came before the Australian High Court, which has no Bill of Rights, it reached the same result as Strasbourg, by way of implication from the country’s democratic constitution. There, and in consequence of the court decision, the conservative Howard government brought in a law that took away the vote from prisoners serving more than three years’ imprisonment. All the UK government has to do, to comply with the Convention, is to bring in a similar law — it could get away with limiting the bar to those serving more than one year. 

“Mrs May’s cat” stands for all the lies, half-truths and misrepresentations that politicians and the media have made about the effects of the European Convention. It was at the Conservative Party Conference in 2011 that — to audience gasps — she announced that the Human Rights Act had allowed an illegal immigrant to avoid deportation because his “right to family life” required that he should not be separated from his pet cat. This was nonsense (the man had only referred to a shared cat in the context of proving that he had a long-term relationship with his partner). But politicians and journalists do not read closely reasoned court decisions — many of those blamed on the Act (especially deportation decisions) depend on European Union rules, and not the European Convention on Human Rights.
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July 16th, 2015
8:07 AM
Ummm, SOVEREIGNTY, Geoffrey?

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