Withdrawal from the European Convention on Human Rights could return to the government’s agenda if a report published by an influential right-leaning thinktank on the eve of the party’s annual conference gains traction. The proposal appears in ’a programme of constitutional reform’ published by Policy Exchange’s judicial power project - along with a poll suggesting strong public support for the move.
The paper, by Richard Ekins, professor of law and constitutional government at the University of Oxford, says that the government was right to drop Dominic Raab’s proposed bill of rights - but must now go further. While Raab’s bill would have kept the UK in the European Convention, the UK should now ’be willing to withdraw from the ECHR and should give serious and ongoing consideration whether… to withdraw.’
Poll results published with the report show that 59% of people believe the European Court of Human Rights should not be able to block the UK from deporting foreign criminals. Only 15% are in favour.
The paper states that withdrawal from the convention would free the UK from the jurisdiction of the ECtHR, ’a court that routinely subverts the terms of the convention’. While an attempt to reform the convention from within would be ‘reasonable’, the government should not accept that it is bound to comply with Strasbourg rulings in the meantime.
If the UK is to remain a member of the convention, ’the government must (a) challenge and resist the ECtHR’s subversion of the terms the member states agreed and (b) defend the premise on which the Human Rights Act was enacted, which is that parliament remains free to decide what our law should be’, the paper states.
Ekins concedes that withdrawal would have international implications, stating that these would require ‘careful thought’. He observes that a UK outside the convention ’would be in good company with Australia, Canada and New Zealand, each of which protects human rights without relying on supranational litigation’.
Elsewhere, the paper calls on the government to introduce a bill to repeal the Human Rights Act, ’restoring the constitutional position as it stood until the 1998 act came into force whereby human rights were protected by ordinary statute and common law’. Other legislation should ’make further targeted changes to the law of judicial review and thus enforce important constitutional limits on judicial power’.
In particular, legislation should state that no court has jurisdiction to decide whether a constitutional convention exists, what conduct a convention requires or forbids, or whether a person has complied with a convention. Courts would be explicitly prevented from questioning the scope or exercise of the power to prorogue parliament.
The paper was launched at a fringe event attended by the lord chancellor at the Conservative party conference in Birmingham yesterday.
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