In a timely and urgent paper, Jonathan Fisher QC examines the United Kingdom’s involvement in the European Convention on Human Rights (ECHR) and offers a way forward for reforming a supranational body in line with the most commonly advanced criticisms of it.
Fisher, who was recently appointed a Commissioner on the Bill of Rights Commission established by the Coalition Government, argues that a new Protocol ought to be added to the Convention to put an end to ‘judicial activism’ and better direct the way in which the European Court of Human rights interprets and applies the Convention in keeping with Articles 31 to 33 of the Vienna Convention.
Coming shortly after the European Court’s controversial decision in January that al-Qaida associate Abu Qatada could not be extradited to Jordan because testimony presented against him might possibly be obtained through torture, Fisher’s report offers a deeply researched brief on how the ECHR came into being and how, in the midst of heightened questions about Britain’s role in the European Union, sovereignty and international law can be effectively reconciled.
This paper addresses the key human rights question in Britain today – Should the United Kingdom withdraw from the European Convention on Human Rights? From the British perspective, the question arises because there is a widespread perception that the European Court of Human Rights:
- intervenes too often with decisions of British courts;
- is a judicially activist Court, giving an artificially wide application to the European Convention on Human Rights far beyond the contemplation of thecontracting parties;
- decides cases too often in favour of the complainant, at the expense of the law-abiding citizen and society in general, and which the Courts in Britain are obliged to follow.
There is universal recognition in the Council of Europe that reform of the European Court of Human Rights is required, and attention has focused on radically reducing the number of cases it hears.
However, the proposed reforms, which are essentially procedural in nature, will not have any impact on the way in which the European Court of Human Rights decides the cases that it hears.
In answering the key question, this paper is divided into three sections.
First, the paper explores the history of the European Court of Human Rights and reviews how the perceptions about judicial activism have come to be held, and whether they are fairly held.
Secondly, the paper considers the arguments for and against withdrawal by the United Kingdom from the European Convention of Human Rights, and by necessary implication, from the jurisdiction of the European Court of Human Rights.
Thirdly, the paper proposes a solution to the problem. A new Protocol added to the European Convention on Human Rights which gives direction to the way in which the European Court of Human Rights should interpret and apply the Convention is required.
The paper concludes by answering the key question in the following way. The United Kingdom should not withdraw from the European Convention on Human Rights at the present time. The United Kingdom has an important contribution to make in the field of international human rights, and there is the possibility that the Council of Europe and the European Court of Human Rights may respond positively to the suggestions put forward in this paper.
About the Author:
Jonathan Fisher QC is a barrister who has been in full time practice for nearly thirty years, with wide experience in civil and criminal cases. The UK Bar Guide 2012 records that “sources praise him for his gravitas and his very good, clear advice” and describes him as “an experienced and active silk with a diplomatic and thoughtful style.” In addition, the author is a Visiting Professor of Law at the London School of Economics, an Honorary Visiting Professor at the City Law School (City University London), a Chartered Tax Adviser and Fellow of the Chartered Institute of Taxation, an accredited Trusts and Estates Practitioner, General Editor of Lloyds Law Reports: Financial Crime, Honorary Steering Committee Member of the London Fraud Forum, and a Committee Member of the International Bar Association Anti-Money Laundering Group. He was a Trustee Director of the Fraud Advisory Panel between 2006 and 2010, a Steering Group Member of the Assets Recovery Agency between 2003 and 2006, and Standing Counsel (Criminal) to the Commissioners of Inland Revenue at the Central Criminal Court and London Crown Courts between 1991 and 2003.
The author is extremely familiar with human rights law and civil liberties. In 2006 he gave evidence to the House of Commons Select Committee on Constitutional Affairs following publication of his monograph, “A British Bill of Rights and Obligations.” He edited a paper entitled “A Modern Bill of Rights” published by the Society of Conservative Lawyers in 2007 and was a member of the Bill of Rights Commission established by the Conservative Party during the last Parliament. Between 2006 and 2010 he was Chairman of Research for the Society of Conservative Lawyers. In March 2011, he was appointed a Commissioner on the Bill of Rights Commission established by the Coalition Government.