According to most of the broadsheets, if there is a Conservative Government after the next General Election, the European Court of Human Rights will no longer be able to overrule British courts.
Under plans to be unveiled tomorrow (Tuesday) at the Conservative Conference, Chris Grayling, Secretary of State at the Ministry of Justice, is expected to state that a future Conservative Government will introduce legislation that ensures that Human Rights cases are determined by Britain’s Supreme Court and not judges sitting in Strasbourg.
This is the Conservative response to an agonised cry: “Who will rid me of that troublesome law” (…..and replace it with ……. well we don’t know yet).
The dangers of this approach can be considered by reference to the DNA database and the case of UK v Marper which provides a timely example of Mr. Grayling’s policy at work. This case was considered by the House of Lords which judged that there were no human rights breach if the police retained indefinitely, personal data that represented the DNA profile of a data subject, even when the data subject had not been found guilty of an offence.
The House of Lords judgment was overturned unanimously by the Grand Chamber of the European Court of Human Rights (ECHR); it was a 17-0 victory for Marper. This has resulted in the changes in UK law identified in the Protection of Freedoms Act 2012 and now the DNA database focuses on the guilty.
However, if Mr. Grayling’s proposed policy were in place, then DNA on the innocent would still be stored on police databases. It is as simple as that.
I suspect that access to the ECHR would not be abolished; it’s just the requirement for the judgment to be implemented by the UK Government that will go. For instance, Privacy International in September 2014 has filed a legal challenge at the ECHR seeking the release of secret documents detailing the spying agreements between the United States, United Kingdom, Canada, Australia, and New Zealand.
This case relates to the data sharing policies of GCHQ and whether they take due regard for the right to private life. In the wake of Snowden, many suspect that respecting private life is not high up on the agenda of these agencies.
Also, in September, the Bureau of Investigative Journalism has started a ECHR case in order to assess whether UK domestic law is incompatible with provisions in European law which give journalists the right to keep sources confidential from police and the national security agencies. This case arose because of the “Plebgate” affair where the Metropolitan Police obtained phone records of Sun political editor without consent or knowledge of the newspaper.
Both the above are important issues and both involve the question of whether or not the Regulation of Investigatory Powers Act provides sufficient protection for privacy as well as for freedom of expression.
Mr Grayling’s policy would mean that he could waive the proverbial two fingers at any judgment even if the ECHR were to be unanimously against the UK (as in 17-0 defeat for the UK in the case of UK v Marper).
So to conclude, here is a pub quiz question? Please identify four countries that would never implement international judicial rulings in support of freedom of expression (Article 10) or which require respect for private and family life (Article 8).
Now add the UK to that list!