The UK and Strasbourg: whose right is it anyway?

On the question of sovereignty, it was the words of the showgirl at the heart of the Profumo affair, Mandy Rice-Davies, and Humpty Dumpty, which sprang to Lord Neuberger’s mind.

“Parliament could claim absolute sovereignty, but that could be said to be pulling itself up by its own bootstraps – to adapt the phrase of that well-known authority, Mandy Rice-Davies, they would say that wouldn’t they?” Lord Neuberger, president of the supreme court, said.

Part of the problem, he said, was that “we famously have an unwritten constitution… Without a written document, our consitution is at risk of finding itself a victim of the Humpty Dumpty approach of being what I say it is”.

It would suit the justice secretary, Chris Grayling. In the wake of the furore over whether prisoners should be given the right to vote, has said that parliament “has a clear right to exercise sovereignty over human rights decisions”.

Defiance?

So MPs have been told they can vote to defy a European court of human rights ruling and keep the ban on prisoners voting.

It is not a position which has gone down well with Strasbourg, however. According to Nils Muižnieks, human rights commissioner at the Council of Europe, as the “UK decided to delegate some small part of its sovereignty to the Council of Europe when it joined and when it agreed to abide by the rulings of the court”.

Looking at what Mr Grayling actually said, it would seem he has taken legal advice on this.

Because parliament was sovereign, he said, MPs could decide to “legislate contrary to fundamental principles of human rights”, and that the constraints of doing so were “ultimately political and not legal”.

Compare that with what Lord Hoffmann said in his judgement in the case of Regina v Secretary of State for the Home Department (2000): “Parliamentary sovereignty means that parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by parliament are ultimately political, not legal.”

He goes on: “But the principle of legality means that parliament must squarely confront what it is doing and accept the political cost.”

Their words are remarkably similar.

International obligations

When the UK signed up to the European convention on human rights, in November 1950, then being the first country to ratify it the following year, it signed up to the international obligations which it contained.

The problem arises when parliament decides it wants something which is in conflict with what it has signed up to in the European convention on human rights.

There is still the option of defying what it has signed up to, as judges and lawyers agree that parliament is sovereign.

It is just that it would mean that the UK would be in defiance of the very convention it had signed up to. Sanctions for that are possible fines and compensation claims from prisoners denied the vote.

What may be a greater worry, however, is that the UK would be seen to have been deliberately acting against good faith that international norms are based on. It would also send a signal to other countries that it is acceptable to go against the European convention on human rights.

Which means that although Mr Grayling has a point when he says that parliament is sovereign, the consequences of following that right to sovereignty to the letter would have severe political consequences. The extension of the argument for exercising sovereignty would be for the UK to withdraw from the European convention on human rights.

That would require it to renegotiate its entire standing in the world of international obligations.