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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Did somebody mention the ECHR?

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Edited by John Gynn, Thursday, 14 Jul 2016, 11:55

In the campaigning ahead of the 2005 UK General Election, discussion of the European Union was notable by its almost complete absence. The EU seemed to be perceived as a topic that could seriously damage any of the party campaign bandwagons in 2005.

Sometimes what is not said can provide scope for analysis as much as what is actually said.

It is not quite so surprising that the issue of the European Convention on Human Rights (ECHR) has been blown into the long grass as the 2016 EU referendum debate progressed. A referendum, unlike a General Election, is, after all, largely a single-issue debate (albeit there were many associated issues affected by the dominant question of EU membership).

But, given that the EU and the ECHR have, so often in popular debate, been intermingled, the silence on the topic of the ECHR during the EU referendum debate has been deafening.

It is almost certain that Prime Minister Theresa May will follow the stance she has clearly adverted to in the recent past and look to ‘rebalance’ the relationship between the European Court of Human Rights (ECtHR) and the UK Supreme Court.[1] In April 2012 the new Prime Minister Mrs May indicated her position concerning the Strasbourg Court, a move, “to ensure that the European Court operates appropriately and in a way that reflects its original intentions.”[2]

As at 11.30am on Thursday 14th July, Chris Grayling has yet to have any future role in Mrs May’s Cabinet announced. Given the proximity of his position to that of the Prime Minister as regards the ECHR and the ECtHR (see earlier post ‘But will Hrunting Bite?) Mr Grayling might well be a good fit as a new Secretary of State for Justice. However Mr Grayling was closely associated with the most recent incumbent Mr Gove, who, seeming to have stepped into the ultimately ill-fated shoes of Sir William Stanley[3] in place of Boris Johnson, has just been sacked. [Indeed at 11.51 Liz Truss, previously Secretary of State for Environment, Food & Rural Affairs, is appointed as Secretary of State for Justice].

It is often helpful to consider the backgrounds of the various political architects who will shape the law ahead.

Mr Grayling’s position is relatively clear. What of  Amber Rudd who will replace Theresa May at the Home Office? Secretary of State for Energy and Climate Change for the last few years; there appears to be little evidence of the new Home Secretary’s stance on the ECHR.

However, in February 2011 Amber Rudd supported a motion tabled by Conservative MP David Davis (now appointed Minister for ‘Brexit negotiations’) and Jack Straw (previously Labour Justice Secretary). Her support for this Motion hints at her likely stance regarding the European Convention on Human Rights (ECHR) – or at least the European Court of Human Rights (ECtHR) interpretation of the signatory states’ obligations under the Strasbourg Convention relating to the rights of prisoners. That Motion defied the European Court of Human Rights’ ruling that held the UK’s blanket prohibition on prisoner voting to be a breach of the ECHR.[4]

That means that the new Home Secretary’s stance on the ECHR and the ECtHR accords with that of the new Prime Minister.

The likelihood is that the new Prime Minister will, in the near future, look to address her concerns about the ECtHR’s widening interpretation of the scope of the ECHR through a shift in constitutional law. Chris Grayling (if appointed as Justice Secretary in place of Michael Gove) and Amber Rudd will reflect the Prime Minster's own stance.

However whether the government would be inclined to rebalance the UK’s obligations under the ECHR at the same time as it negotiates Brexit with the EU will be a question of political timing. The Government may opt to deal with Brexit first as ECHR rebalancing may affect wider negotiations.



[1] Mrs May appears, previously, to have been amenable to the UK leaving the Strasbourg Convention: CNN Wire, July 7, 2016, comments:  “May had also wanted the UK to leave the European Convention on Human Rights, but has now dropped the idea with Parliament unlikely to support it”. That stance is also noted by The Guardian  on June 28, 2016.

[2] HC Deb. 17 Apr 2012 : Column 179

[3] See previous post; ‘What says Lord Stanley?’ Richard III, Act V, Scene 3.

[4] In that prisoner voting debate, Lib Dem MP Tom Brake made an interesting point: “What is the logic behind this ban? We do not remove prisoners' access to healthcare or we don't stop them practising their religion, so why should we impose a blanket ban on a prisoner's right to vote?''


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