The prospect of quitting Europe may threaten Conservative party unity but Chris Grayling will on Tuesday be given a platform to put detail on long-awaited plans to begin the retreat from Strasbourg.
The justice secretary is expected to announce that a future, Conservative majority administration would repeal the Human Rights Act, curtail the influence of the European court of human rights and anoint the UK’s supreme court as the country’s supreme legal authority.
Such policy promises have been made before. Any explicit threat to withdraw from the European convention on human rights, however, is likely to open up a fierce internal row between the party’s legal reformers – such as the former attorney general Dominic Grieve and the former justice minister Ken Clarke – and the instinctive, Eurosceptic rejectionists – such as Grayling and the home secretary, Theresa May.
Those who resent the supremacy of the European court of human rights (ECHR) in Strasbourg may be having second thoughts about the wisdom of entering a general election with a manifesto seeking equal status with Belarus – the only European state that is not a member of the Council of Europe.
And that’s before ministers consider whether no longer being a signatory of the European convention on human rights would force the UK’s premature exit from the European Union.
On the other hand, a sense that the ECHR has become a constitutional difficulty is now more widely shared. Even the shadow justice minister, Sadiq Khan, who told last week’s Labour conference that he was “appalled by Tory plans to abolish the Human Rights Act and walk away from the European convention on human rights” went on to add: “Let’s get the European court working better.”
The chief sticking point is Strasbourg’s insistence that the UK provide voting rights for some category of prisoners. Last week, the Council of Europe again castigated the UK for failing to enforce the original Hirst judgment of 2005.
It noted “with profound concern and disappointment that the United Kingdom authorities did not introduce a bill to parliament at the start of its 2014-2015 session as recommended by the competent parliamentary committee”. The warning was blithely ignored at Westminster.
Many senior British judges are also uneasy about the relationship with the ECHR. Lord Judge, the former lord chief justice, has observed that parliamentary sovereignty should not be exported to “a foreign court”. There is a danger, he has said, of a “democratic deficit” if the ECHR continues to evolve into a law-making body and forces the UK government to give prisoners the vote against parliament’s expressed will.
Even the supreme court justice Lady Hale, a staunch defender of the Human Rights Act, expressed concern in a speech last year that “the current problem facing both Strasbourg and the member states is whether there are any limits to how far the [European convention on human rights] can be developed”.
Lord Neuberger, president of the supreme court, has remarked that UK judges are too ready to treat Strasbourg court decisions as if they are binding. “[The ECHR has] produced a number of inconsistent decisions over the years,” he has said. “ … We should be more ready not to follow Strasbourg chamber decisions.”
Part of the problem has been the so-called “margin of appreciation” – the degree of latitude allowed to each country to decide decisions within its own traditions; it is not clearly defined and appears somewhat elastic.
Another contested issue is what is meant by the requirement under the 1998 Human Rights Act that UK courts “take into account” the ECHR’s rulings. Does that mean that its decisions may not be binding in all cases?
Around such ambiguities reformers are trying to craft a revised relationship that would ease tensions between Westminster and Strasbourg without the need for a pullout.
A bill of rights commission, established by the coalition government, failed to find a way through the minefield. The nine-member panel could not reach a consensus on reforming the Human Rights Act or the proper extent of judicial allegiance to Strasbourg.
Human rights organisations, and many Conservatives such as Grieve, fear that walking out of Strasbourg altogether would undermine respect for the law across the continent. The former attorney general, who was removed in the last government reshuffle, has warned: “We live in a world where international law matters increasingly and the UK has always been a role model in areas of international law.”