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The Lord Chancellor, Chris Grayling, and the Home Secretary, Theresa May, are leading the Conservative Party towards a policy of repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. The policy is popular within the Conservative Party for four reasons, all of them bad.

First, even those who should know better lazily assume that the convention and its associated Court of Human Rights (ECtHR) are something to do with the EU. They are not: with the exception of the barmy dictatorship of Belarus, every country west of the Urals is a member.

Second, the ECtHR regularly makes unpopular decisions. So it does, but so too does every other court that has ever existed.

Third, human rights law is perceived as providing a gravy train for smug left-wing lawyers. This was Mr Grayling's line in a Daily Mail interview last month. It is a gross exaggeration and even if it were true it would be a very bad reason. Lawyers are always unpopular: the best ones usually become rich, very often smug and surprisingly often left-wing. But they are essential for any functioning legal system.

Fourth, the convention is seen as an infringement of British sovereignty, by giving foreign judges power over us. That is the most substantial objection, but it too is ill-founded.

Unfortunately the salmagundi of courts, conventions and acronyms befuddles clear thinking on the subject. The European Court of Human Rights decides cases brought under the European Convention on Human Rights (ECHR). The European Court of Justice (ECJ) decides entirely different points about EU law, although just to add to the confusion the European Union is shortly to accede to the European Convention in its own right, and the ECJ is increasingly showing an interest in human rights law.

The ECtHR is not like an ordinary court. You can only bring a case there once all domestic remedies are exhausted. Contrary to popular opinion, (unlike the ECJ) it cannot overrule our own courts or even declare what our law is. It can award (usually very modest) damages, but its main power is to declare that a country is in breach of its convention obligations. Conservatives are right to be jealous of the sovereignty of parliament, but agreement to abide by decisions of the ECtHR does not compromise such sovereignty in any way. Conservatives have no objection to the British government complying with international treaties and the convention no more infringes our sovereignty than does our agreement to other international treaties, such as the World Trade Organisation. We could do what Mr Putin does and refuse to comply with the court's rulings, although Conservatives usually believe that if Her Majesty gives her word she should keep it.

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Rob Morris
September 27th, 2013
9:09 AM
Very interesting, thank you for clearing up that misconception!

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