Domestic judges rather than the European Court of Human Rights are to blame for the ‘hijacking’ of human rights law by convicted prisoners and terrorist suspects, civil society thinktank Civitas argues today.
However the thinktank’s contribution to the debate over Britain’s relationship with the Strasbourg court, The problem with human rights law written by barrister Michael Arnheim, is also highly critical of the Conservative party’s proposal for a new bill of rights as set out in a party paper last October.
According to Arnheim, critics are ‘too quick’ to blame the Strasbourg court for the expansion in the scope of European Convention rights. ‘The evidence shows that it is actually the UK domestic courts which are largely responsible for this, together with a supine attitude on he part of successive British governments.’
He accuses the domestic courts of embarking upon an ‘expansionist binge’, going far beyond the Human Rights Act requirement to ‘take account of’ Strasbourg decisions. One reason, he says, is that Strasbourg’s ‘politically correct’ approach ‘happens to chime in with the individual political views of a number of the domestic judges’.
For this reason, the Conservative party is ‘deluding itself’ by proposing that putting the text of the original 1948 convention into primary legislation would put brakes on new judicial interpretation.
Arnheim’s solution is to maintain the Human Rights Act - which he describes as a ‘mixed bag’ - as the Conservatives are expected to propose in a long-delayed draft bill. Repealing the act ‘would be a serious mistake’, he states.
Rather, it should be amended to remove section 3 (1), which says legislation must be given effect in a way which is compatible with convention rights and the ‘pernicious’ section 6 (1) which says it is unlawful for a public authority to act in a way which is incompatible with a convention right.
In a proposal likely to find more favour with the current lord chancellor, Arnheim also proposes a ‘long overdue’ reform of judicial review which should not be squeamish about restricting judicial independence. ‘Telling the judges what to do is a function of parliament, not the judiciary,’ he states.