ECHR reform is possible

An important Bruno Waterfield article appeared in The Times yesterday. One that reinforces my view that leaving the ECHR is unnecessary. Marc Bossuyt, 81, president of his country’s constitutional court for 17 years and commissioner general for refugees for nine more has made some particularly interesting comments.

As talks are under way between EU members and other signatories to the European Convention on Human Rights, such as Britain, Bossuyt, who is one of Europe’s most expert lawyers on asylum case law, argued that “governments should not be intimidated” by the suggestion that “criticising some judgments puts the rule of law in danger”.

His intervention, writes Waterfield, comes as the question of overreach by the ECHR has never been higher on the political agenda across Europe. In Britain, judicial challenges based on cases before the court in Strasbourg have threatened to sink Sir Keir Starmer’s one-in, one-out agreement with France to return illegal migrants who crossed the Channel in small boats.

In May an open letter drafted by Italy and Denmark and signed by Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland said the ECHR had “limited our ability to make political decisions in our own democracies” by creating barriers to fighting illegal migration. Bossuyt writes in the diplomatic document shared by De Wever: “Governments should not be intimidated by the reproach that criticising some judgments puts the rule of law in danger.”

A wider grouping of countries, including France and Germany, according to diplomatic sources, is also engaged in finding ways to stop the derailing of the deportation of failed asylum seekers or those who have committed crimes. Bossuyt describes the practice as “judicial activism”.

“I’ve been told that it is not only the nine governments that take a critical view but many more others, including the UK, who is not a member state any more of the EU,” Bossuyt said.

My point is that a reform effort, spearheaded by Britain would be kicking at an open door. None of the key signatories to the ECHR believes it is working as intended. At it stands, the ECHR is not a supreme court and our own Supreme court cannot overturn primary legislation. It is within the powers of parliament to disapply the ECHR in respect of immigration appeals and asylum claims. We need not do this on a permanent basis and, in fact an ECHR challenge to such legislation would work in our favour diplomatically.

If we won such a case then great, and if not, it's an opportunity to formally notify the court and the Council of Europe that Britain is suspending observance of the ECHR on such matter until such a time as the issues are resolved. It is then in their interests to expedite a reform process, recognising that if the UK leaves then the entire system begins to unravel, having lost a great deal of its moral authority. As Bossuyt says, signatory states are the “ultimate masters” of the treaties.

Bossuyt suggests that governments should appoint better candidates to the bench of the court in an attempt to reform it. “National judges known for their judicial restraint should be given preference over academics,” he said, adding that the latter group were known by their writings to be in favour of “activist interpretations”. He called on governments to intervene collectively in cases being heard at the court to make “judges aware of the importance” attached to “the issues at stake”.

Amending the convention is more difficult, he said, but it has been done with a protocol, number 15, in 2013 to give a greater “margin of appreciation”. This, he said, gave more national flexibility to prevent confrontations between governments and the court. "It is very difficult to get consensus, very difficult to get, obviously, all those ratifications, all these approvals by parliaments. I would not rule it totally out".

My own view is that the British government has more flexibility than we are led to believe and this pantomime we're seeing is largely down to the absence of political will. I simply do not accept that quitting the ECHR is the only approach, and the case for doing so is not compelling given the ramifications for Northern Ireland. Meanwhile, I remain convinced that in the UK, the main issue is not ECHR judgements, but activist lawyers exploiting the UK’s Human Rights Act, with the assistance of sympathetic and often partisan judges. That is entirely within our powers to resolve.