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The moral of the Pinto-Duschinsky resignation: Britain should leave the ECHR

By Paul Goodman
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The concept of human rights is being distorted - even discredited - by decisions made by the European Court of Human Rights.  There is credible democratic anxiety about them.  Decisions made by national parliaments should be treated with respect.  Many of the waiting cases are trivial, and are effectively turning the ECHR into a small claims court: consider, for example, the man whose complaint was that his trip from Bucharest to Madrid "hadn't been as comfortable as advertised".  There is a backlog of 150,000 cases.

My view?  Not so.  Every single one of the claims made above is taken from a report of the Prime Minister's recent speech to the Parliamentary Assembly of the Council of Europe about the court.  He urged the court to take more account of votes cast in the House of Commons.  The solution he championed in the Conservative manifesto was to replace the Human Rights Act with a British Bill of Rights to create a greater "margin of appreciation".  The Coalition Agreement agreed merely to "investigate the creation" of such a bill of rights: little action followed.

Until, that is, the Commons rejected votes for prisoners just over a year ago.  David Cameron then hastily announced the formation of a commission to examine the investigate the creation of the bill that the Government was already committed to investigating the creation of.  The commission's membership might have been chosen to achieve gridlock: on the one hand, Lord Lester, Lady Kennedy, and Phillippe Sands were selected - all strong supporters of the court.  On the other, Martin Howe, Jonathan Fisher, and Anthony Speaight were chosen - all critics.

The most blunt critic of all was Michael Pinto-Duschinsky, who has argued that the Strasbourg Court has "practically no legitimacy".  Last weekend, he spectacularly resigned from the commission live on the Sunday Politics, claiming that the commission had been told by Nick Clegg and Ken Clarke to ignore "agitation from Parliament".  He wrote that "effectively, the commission has been hijacked by the Liberal Democrats and the grandees of the human rights culture. The views of the Prime Minister and his senior Tory colleagues count for almost nothing."

This was a principled and honourable resignation.  But whatever one's view, it is evident that the commission is going nowhere. (To give a flavour of Pinto-Duschinsky's complaints, he claimed that the commission refused to ask the public in its questionnaire about the Prime Minister’s statement that some decisions should be made in Parliament rather than in the courts.)  It would not have been surprising if some enterprising Conservative backbencher had quizzed Cameron about the impasse in the Commons at Prime Minister's Questions today.

Instead, such a person will presumably have the chance directly to question Nick Clegg, since Cameron is with President Obama in the United States.  But the Prime Minister hasn't escaped interrogation altogether.  Asked about the matter in America, he blamed the Liberal Democrats: "This is clearly an area that if we weren’t in coalition government, we would be going quite a bit faster, in fact, quite a lot faster," he said.  He thus effectively conceded that the Commission will achieve nothing much, a conclusion obvious at the time of its establishment.

However, the Government isn't so much in the hands of the commission as the hands of the court.  And the biggest problem for the Coalition isn't so much its view on returning Abu Qatada to Jordan as its stance on votes for prisoners - which has even bigger traction with the electorate.  A fresh court decision about it would reinflame the row, infuriate Conservative backbenchers, stoke a confrontation and doubtless spark another Commons vote.  Cameron could then find himself having to confront the decision which he would rather avoid.

The core truth has been identified by Lord Hoffman: "to the people of the United Kingdom, this judicial body does not enjoy the constitutional legitimacy which the people of the United States accord to their Supreme Court."  Justice in Britain did not begin when the Government of the day ratified the convention in 1953: we had previously being doing rather well on that front compared to most of our continental neighbours.  If reverting to the status quo ante is too antipathetic to the mood of the times, the Government should simply replace our ECHR membership with the British Bill of Rights that the Conservative manifesto promised.

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