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.
[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?''
Did somebody mention the ECHR?
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?''