On 26th April this year, in a committee room of the House of Lords, we held a debate on the UK’s membership of the ECHR. 

Arguing the case to leave the European Convention on Human Rights (ECHR) was Paul Diamond. Paul is a barrister who has done some wonderful work defending Christians who are losing their freedoms. One of his cases was defending an employee of British Airways who was banned from wearing a Christian Cross. He took this case to the European Court of Human Rights and won. 

Speaking against leaving the ECHR was Francis Hoar. Francis is a barrister at Field Court Chambers. He's been involved with the Free Speech Union, electoral law, public law, election law, and lockdown cases. Paul spoke first. 

Paul Diamond: I've kept this talk fairly light to provoke a discussion. I'm going to give some personal views. I hope it doesn’t sound like a rant, but I also hope that I sound cogent and reasonable. I have had a long history in this matter. I don't know if many of you remember Baroness Young, but she asked me in 1998 to give her a legal opinion on why we should not implement the Human Rights Act in the first year of Tony Blair’s administration. 

She was one of the most formidable women I've ever met, and I remember thinking that when she was Head of the House of Lords, and we had Mrs.Thatcher as Head of Government, and we had our late Queen as Head of State, it was a totally formidable team. It was tough working with her, but a pleasure. But she asked me to come up with some examples. What could I come up with? How could anyone argue against human rights? What could happen? And I came up with the strongest examples I felt possible, which, of course, the government of the day ridiculed. 

But if I'd said to them, in those examples, that within seven years you would be at British Airways fighting for someone to wear a cross the size of a penny, while they permitted turbans, hijabs and bracelets, but the cross was banned; or I'd be doing cases where people could foster children if they didn't promote homosexuality, I’d have been laughed out of every chamber. 

So, what's at stake in this is democracy; the true meaning of the rule of law, and what the rule should be. Parliament makes the laws, and of course, the courts apply them. But those roles have been reversed under the human rights jurisdiction. So, it's very straightforward. If Parliament signs a treaty, incorporates it, and our Foreign Secretary jaunts around the world wanting to look good, signing international treaties, we've got a problem. 

We've got the European Convention incorporated, for example. We've got the Convention on the Status of Refugees incorporated. We've effectively got the Convention on the Rights of the Child, incorporated. Our courts will give effect to it. We've passed the law and, of course, they're going to defer to the treaty-determining body in the UN or in the European Court to determine the true meaning of a treaty that we voluntarily signed or have implemented. 

So, it's a problematic issue, and it does start in the House. Many years ago, I had a meeting with the Commissioner on Human Rights in Strasbourg. I wanted to discuss my pet themes, which were freedom of religion and freedom of speech, and it became very clear that the only human rights that were relevant were LGBT rights and feminism. But it's a bit old now, so I think feminism has gone. They're going to get rid of that, and I think women's rights are in great danger.

I actually believe we had more freedom in 1998 before the Human Rights Act. I've been doing cases for a long time on this. And you can see where we are with freedom of speech. Apparently, it's written into our law. How can it be wrong? We’ve got hate speech, offensive speech; we’ve got cancel culture, we've got Twitter, Facebook, and the great BBC. 

  So, I believe human rights law has taken a very dangerous turn and, in many ways, can be contrary to democratic government. If you take the example of abortion in the United States (and it’s a good example), the right to have an abortion was determined in 1973 to be a constitutional right. So, it didn't matter in America whether the President was against it, if Congress was against it, if 48 of the 50 states were against it. If five members of a body said it's a constitutional right, there's nothing you can do about it. And more and more rights are being constitutionalised or declared human rights. It doesn't matter what the government does. 

Of course, the Supreme Court recently reversed that in the Dobbs decision, where they're just simply saying it's not a constitutional right; it's a civil right, which the lawmaking bodies of the states can determine. And what is law? Law is just a piece of paper at the end of the day. Democracy is a societal norm. 

Human rights, treating people with respect, is a societal norm which existed in this country for many centuries under common law, prior to joining the Human Rights Act and prior to implementing it. And if it ever got to the stage where the army was deployed on the streets and we reached a totalitarian governmental stage, I can assure you having a few people wearing horse-hair wigs in a dark little building off the Strand is not going to make the government back off. 

It doesn't work like that. In many countries, including Stalin's 1936 constitution, are some of the most wonderful documents in the world that give people more rights than they could ever dream of. And so, I'm saying human rights are undefined. It gives powers to judges on political questions. They're unelected. They will decide societal disputes from transgenderism to same-sex marriage. We've got the creation of the philosopher judge, which is an extremely painful sight to see as they turn their dark legal texts into wonderful meanings. We've got ever-expanding rights.   

The words that we already have, like privacy, are expanded. We are moving into socio-economic rights, housing benefits, employment disputes. And now we're going to what some lawyers call third-generational rights, which is climate change. Cases are brought now in Strasbourg on climate change, issues of identity, and right to water. 

You'll be glad to know that Strasbourg has regularly ruled on war cases and conflict cases. And as we know with Russia, they are very concerned about what Strasbourg judges are thinking. And the Strasbourg courts are not ashamed if they call it a living instrument. The text is irrelevant. They are keen to expand it. They've adopted principles such as a common European consensus. So, if every country has got same-sex marriage, is it a human right to get same-sex marriage? Not of any principle. It's just a European consensus.   

We have probably one serious European state pushing back against this ever-expanding process, and that is Poland. And they are battered by the European courts, both European Union courts and human rights courts. And they can't appoint their own judges anymore. Any judge the Polish government appoints is arguably not an independent judge because they wanted more Catholic judges, and they wanted the Polish Parliament to appoint the judges rather like our Lord Chancellor or like the President of the United States. But they can't do so. 

So, we've got the Bill going through Parliament today on immigration, and we're told that we can carve out an exemption on this. I doubt that'll work. Leaving aside numerous rulings by the European Court, you've got to have a fair hearing; you've got to have an appeal. Well, if you're Greece and you have got half a million people going through the court system, and if you're the United Kingdom, you have got 150,000, it’s clear that we haven't got enough judges and it also costs a fortune.  

 Of course, there are going to be delays. And the issues are so complex under human rights law, like rights of children to education. And even if this bill goes through, I'm not convinced the European Court itself in Strasbourg will accept it. I think there's a good chance they could rule it illegal. In any event, I believe that our judges will take notice of their decisions, which they have to do while we remain, I believe, a signatory to an international treaty. That's their job.   

If any of you were appointed as a judge, you have to give effect to international treaties. It's not your job to decide what His Majesty's Government signs. You give effect to it. I think the only way to handle it is I think you'd have to do a lock-stock-and-barrel assault. I think partial workings will be struck down by our court or the European Court. You'd have to do a comprehensive approach of withdrawal. It'll be vitally important that you bring the British people with you, and they explain the merits of leaving because the media will kick-up, the EU will kick-up on our trade relations. If we were a member of the EU, they would do what they did to Poland, commence Commission actions against us that we were breaching the rule of law, and we'd have to have nerves of steel. 

As I always say, I'm waiting for the day when they arrest me for a violation of human rights, for exercising my human rights. That date is coming soon. 

I hope that I have kept a very short, light, entertaining introduction. Thank you. 

Francis Hoar: Thank you, Paul. Just as an opening, I would have thought that given there is a debate on this subject, our Members of Parliament might want to hear what the issues are. So, it is rather disappointing that that debate means that they think they shouldn't even attend. But my approach on this is pragmatic and realistic. And I want to start by asking what is the mischief that is being dealt with, being approached, and why we need to leave? 

Again, answering that question, we need to be clear about the distinction between, on the one hand, the Human Rights Act, and the way in which human rights have developed in this country, and, on the other, the membership of the Convention and what that entails. And these are not easy questions. Paul was absolutely right to say that there are severe problems in the way in which Strasbourg has marched towards a much more detailed version of the interpretation of human rights than was envisaged by the authors of the Convention. 

Just to put in context where we are now, we are not required as members of the Council of Europe, and as signatories of the European Convention on Human Rights, to incorporate it into domestic law. There's an important distinction between domestic law and international obligations. International obligations are not really law. They are simply an obligation as a member state of a treaty to follow that as a matter of your membership. 

Unless Parliament says the treaty is part of law, it is not part of domestic law. Now, there is an exception which Paul intimated just now, which is that the courts do have an obligation to interpret law in accordance with our treaty obligations because it's assumed that Parliament will legislate in accordance with treaty obligations and that that interpretation should be imposed by the courts.  

But there are exceptions, and the obvious exception of Parliament being sovereign is where Parliament itself says through primary legislation that it intends not to be compliant with a particular international obligation. That's what's happening right now. So, in terms of whether or not the courts would apply an Act of Parliament saying that interim remedies, which is what this is about, imposed or suggested, as I would put it by the European Court of Human Rights, must not be followed, then they would have to follow that.  

Interestingly, it's worth reiterating what Martin Howe KC said on Saturday. I think it was in the Telegraph. In criticising the approach that the Strasbourg Court has taken, he said the reality is different. The European Convention on Human Rights does not confer any jurisdiction on the court to make interim rulings which are binding on states. Article 46 (1) expressly states that only the final judgements of the courts are binding. 

The court, in fact, acted under Rule 39. This is the Rwanda case, which is what the Home Secretary, I think, is addressing through the Act of Parliament, or Bill going through, which states that Rule 39 of its rules and procedures states that it may indicate not to order or injunct interim remedies that it thinks should be taken in a case as a matter of principle. Such rules govern the procedure by which a court exercises its jurisdiction and cannot expand its jurisdiction.    

Martin points to the fact that in 2005 the Strasbourg Court effectively said otherwise, but again it is open to our Parliament to say we are not accepting that, and that inevitably may result in difficult cases in Strasbourg. And the Strasbourg Court may well find, as it has done in the past with prisoner voting, that our law is not compatible with the Convention. 

But there are a number of decisions - prisoner voting is one of them - where the courts made a decision. Britain and other countries, for what it's worth, have gone a different way, and the consequence is not earth-shattering: it is effectively a stairway, certainly in those cases. Now, of course, one can envisage circumstances in which a country was so far against the fundamental rights that are within the Convention that they would be suspended or expelled. And that is exactly what happened with Russia last year. Incidentally, the day after, or possibly the same day, it indicated its intention to leave the Council of Europe, which is the body that holds the Convention - I'm going to turn to that shortly - and also revoke the Convention itself. 

So, there is a way in which we can be members of the Convention; members of the Council of Europe, which I submit and suggest is an important part of the framework, but also can have a much clearer steer on our rights with Parliament in the pilot seat and give to our courts final determinative effect. Now, in fact, as it happens, the courts do. Even under the Human Rights Act, the domestic courts do have the final say. The Human Rights Act requires them to take account of Strasbourg's jurisdiction but not to follow its rulings. 

Another point that Paul made, an important point, is generally about common law, fundamental rights and what common law is. Who would have thought in 1998 that he would be defending the right of a woman to wear a cross as part of a British Airways uniform? But the answer, of course, is that there are two points there. Firstly, it was the Strasbourg Court that eventually overturned the decisions of the courts in this country.

I think the second point, though, is wider and more fundamental because, effectively, what common law is is a progression. It's an organic concept. It is the judges applying the law to the culture and the mood of the times. Now, in 1998, no doubt it was very difficult to think that many of the right things that are called rights now would have happened. But then again, in 1998, it would have been very difficult to see to what extent social change would have developed, not just in Britain but across the world. 

Is it really the case that that is due to the Strasbourg court and that that is due to our incorporation of the Convention? Or is it, in fact, the response of judges to huge changes in social norms, which are also reflected, let's not forget, in Parliament and in legislation?

So many of the rights, in inverted commas, are actually Parliamentary. For example, civil unions back in the 2000s, same-sex marriage in the 2010s, the limitations on free speech to a certain extent, particularly now when we look at the insidious Online Harms Bill, and the way some proponents are framing it. We’re causing the problem. And then Paul said, rightly, is it conceivable that men in horse-hair wigs would do anything if the tanks were marching through London? And he rightly said, probably not, or if they did, the government would pay no attention.   

  But we know the answer to that because the courts gave another answer. If you want to just use an Act of Parliament that's never before been thought of being able to impose the most fundamental restrictions on liberty in this country in peacetime or perhaps ever, as a Court of Appeal judge put it, it can, even though nobody before 2000 would ever have thought it could do that. 

So, is it not right that actually a bigger problem is here in England and in a wider sense in the United Kingdom and not just in Strasbourg? 

Now, with that in mind, after a rather lengthy introduction, what are the benefits? Well, I accept Paul's point about the fact that the Strasbourg Court has an over-increasing view of human rights and has developed that jurisdiction. But I also point to the way in which our courts have done it. But I do suggest that there is a need for international humanitarian law and the norms of humanitarian law, and I do think there is a need for international institutions to do that. 

Who would have thought in 1989, with the tearing down of the Berlin Wall and the end of Communism in Eastern Europe, that we would be seeing genocide within years in the Balkans? Who would have thought in 2020 that we'd be seeing appalling human rights abuses and war crimes in Ukraine? 

We might have thought that Putin was capable of it, but the extent to which it has happened is alarming. Now, obviously, I suppose the answer is that Russia has just left. It's been expelled. But that it has been expelled matters. I don't put that as the first argument, I know that it is a rather trite argument for the Convention as ordered by Maxwell and Churchill, but it’s not a good enough argument for staying within it. 

But nevertheless, it is important that we are members of an important organisation. And there have been a number of times in the past decades where Strasbourg has actually applied important rights, which I think now we would recognise are important and whether or not we think Parliament should have sovereignty over it, I think the emphasis by the Strasbourg Court and the Strasbourg Court saying whether or not you want to implement them is important.   

For example, Article 2, the right to life. There's an enhanced requirement for review to assist families, which comes from Strasbourg jurisdiction. 

Article 3 refers to the freedom from torture. In the Republic of Ireland versus the United Kingdom case, Strasbourg declared that sleep deprivation on an appalling scale and waterboarding were unlawful and were certainly cruel human treatment, and are within Article 3.  

Article 5: liberty and security, and also the convection on democracy, have been important in ensuring fair trials in the Balkans. And then there are many other examples, one of which is, and I accept the point about freedom of speech, and I've been bringing, and so Paul has been bringing, a number of cases about freedom of speech on behalf of clients. 

There has been a very positive change in the last two years, starting with a case about gender-critical behaviour and rights to speech, and going on in the case about the Non-crimes Hate Bill, where the Court of Appeal found that that was unlawful, relying on Article 10. 

I accept, of course, that freedom of expression could rely on our common law rights to freedom of expression, but these are real examples. And the other benefit is the fact that we're members of the Council of Europe. Now, people might say so what? But I think that does matter, actually, and the first primary question is can we be members of the Council of Europe and not be members of the Convention? And the answer is probably not. 

The reality is that no members of the Council of Europe are not members of the Convention. To leave the Convention, you would need to denounce it. Would that mean that the Council of Europe would allow us to remain? It's possible, but perhaps unlikely. Having left the European Union, something I have to say I favoured, I didn’t want us to be cutting ourselves off from Europe. 

I didn't favour leaving the EU because I didn't think international co-operation was important. It's very important, and it's important particularly when we're not members of the EU. The institutions of the Council of Europe, which are inter-parliamentary and intergovernmental, are exactly the kind of things that Eurosceptics said should be the basis on which the European Union or the European Economic Community, as it was, should have been, but was never organised.   

They are sensible, and there are a number of co-operative organisations which our membership of the Council of Europe enables, and that enables our rights and our engagement in Europe more generally, while we are not members of the European Union. I think that's important. 

So, ladies and gentlemen, I suggest that we need to look at what the mischief is that leaving the Convention is suggesting will change, whether that is real mischief or whether in fact, the problem lies with cultural change and with our courts, not necessarily with Strasbourg. 

We need to remember that there are ways within which, perhaps by repealing the European Human Rights Act; perhaps by having a new Bill of Rights; perhaps by having other carved-out parliamentary exemptions, as Parliament is doing right now, there are other ways that we can deal with the problem with Strasbourg overreach which I accept is a problem. But we must also remember, firstly, the benefits the Convention has had over the past few decades for the wider community (with a small ‘c’) of Europe, but also the negative consequences of leaving, which go far beyond our duty that we have under the Human Rights Act or courts do have regard to those judgements. And so, I beg to oppose. 

In this guest post, Torquil Dick-Erikson, explains why the ECHR does not even do what it says on the tin, so it is not much good for protecting our human rights. 

Here are some details of cases showing that the ECHR is really no good for protecting human rights as we understand them in Britain, and indeed in some cases the Court itself has violated the rights of applicants.

This is a court that has ruled:

• that the 10-year old torturers and murderers of 2-year-old baby James Bulger did "not get a fair trial" and were entitled to compensation...  (Thompson and Venables vs the United Kingdom - 1999)
• But that it was right to give a criminal conviction to street market traders in Sunderland for selling bananas by the pound weight as their customers preferred, instead of by the Kilo as Eurolaw demanded? (Thoburn and others vs the UK - 2004)
• And that five years in pre-trial detention for an INNOCENT suspect with no public hearing was "reasonable" under article 6 of the Convention because "detention is intended to facilitate the preliminary investigation" (verbatim, in the Court's motivation !) (See Luciano Ferrari Bravo vs the Republic of Italy - 1984)

Over and above the vagaries of the Court, made up as it is of judges who are the political appointees of 46 governments, some with highly questionable Human Rights records of their own, there is a major shortcoming in the wording of the Convention itself. It does not in fact make provision for the fundamental right of anybody not to be imprisoned, even temporarily, without sufficient evidence of a prima facie case to answer. This is provided by Section 38 of Magna Carta (1215), and ensured for us in the laws of Habeas Corpus (Act of 1679). See more details in https://magnacarta800th.com/articles/magna-carta-europe-yesterday-today/

If there be insufficient evidence, or none, then an arrest followed by a period of imprisonment, based merely on some clues, is what we consider to be “arbitrary”. The real reason for the arrest and imprisonment can be different from the declared reason. It can be political. In contrast to the ECHR, the Universal Declaration of Human Rights does ban specifically “Arbitrary arrest and imprisonment” in its article 9.

Other instances:

-Sabadistsch-Wolff vs Austria (2018): Ms Sabaditsch-Wolff, an Austrian citizen, said in a meeting, that the prophet Mohammed married a girl aged six and consummated the marriage when she was nine. And that in today's world he would have been had up for paedophilia. A member of the audience felt offended and reported her for hate-speech. She was tried for it, and convicted, again on appeal, and her conviction was confirmed by Austria's supreme court. She went on to take Austria to the ECtHR for violating art. 10, her right to freedom of speech, but that Court rejected her argument saying that protecting religious sentiment outweighed her right to freedom of speech. 

In effect the ECtHR upheld a de facto reinstituted criminal blasphemy law in Austria, certainly in favour of Muslims. It failed to uphold the right to freedom of speech.

-British novelist victim of medical homicide in Florence (a triple violation by the Court itself of three supposedly protected rights): The victim died from an intestinal occlusion after barium had been prescribed and fed to her in the absence of direct medical supervision, in violation of precise medical laws which are intended to stop the (usually lethal) administration of barium to a patient with an intestinal occlusion. The two doctors involved, and responsible, made verifiably untrue statements to the judicial investigators, and these were proven to be untrue by documentation which was presented to the investigators. During the four years of the investigation, the investigators completely ignored the untrue statements and the documentation presented, and dropped the case, shelving it as "insoluble". The malpractice, with its lethal effects, therefore went undetected and unsanctioned.

Having no further recourse as injured party under the Italian legal system, the victim's son applied to the ECtHR against the Republic of Italy under article 2 of the Convention, on grounds of wilful and deliberate failure to conduct the investigation with due diligence and hence to protect the right to life, affording its violators an undeserved immunity and impunity. The Court left the applicant under an illegal gagging order during the two years of its deliberations, thus violating his right to freedom of expression (supposedly protected by art. 10 of the Convention), and in the end rejected his application, in its turn, not considering and refuting with counterarguments, but simply ignoring, the facts and the documentation he had produced in evidence regarding how the Florentine investigators had simply airbrushed them out. Only when he was told of the rejection of his application, did he learn that the panel of seven judges of the ECtHR who heard the case included not one, but two, Italian judges, one representing Italy, and the other standing in under the flag of San Marino. The second of these two was as Italian as the first and had worked for the Italian State Advocate's office, which was a party to the case, having defended Italy in the proceedings.

His right to an "impartial tribunal", supposedly safeguarded by article 6, was thereby violated by the European Court of Human Rights itself, since this panel included two judges from the country being accused, so the tribunal did not even have the appearance of impartiality. (see Torquil Dick-Erikson vs Italy, case 37900/97, greater details included in his submission to the UK Ministry of Justice delivered on 8th March 2022 as part of the Ministry’s HRA reform consultation; readers can decide for themselves if the Court acted with justice and honesty or not.)

Cases where the ECHR could have been invoked, if it had included a valid Habeas Corpus right, but was not, in particular in the light of the Ferrari  Bravo case showing the total inadequacy of article 6 in this regard:

-Colin and Andrew Dines and two others: Colin Dines, a retired British judge, had been involved in some business dealings with a major Italian Telecoms company, Fastweb. Fastweb's top management came under investigation, and were arrested and imprisoned, by the Italian judiciary on a suspicion of conducting VAT carousel fraud.

The arrest of a suspect, on the basis of mere clues, often takes place at the outset of an investigation in Napoleonic-inquisitorial jurisdictions (ie practically all over the continent). Investigations are then conducted with the suspect in prison for the duration of the investigation, with no right to a public hearing (no Habeas Corpus). As we saw the ECtHR ruled in another case that 4 yrs and 11 months of preventive detention with no public hearing is no violation of the Convention because (verbatim) "detention facilitates the preliminary [!] investigation". The pointlessness of the ECHR is thus shown up, as regards the fundamental right of freedom from arbitrary arrest and imprisonment.

After many long months in prison the case against the Fastweb management collapsed, and their CEO gave interviews in Italian media protesting at the treatment he had received.

While the investigation/prosecution was still underway, the judicial investigators had found Colin Dines's name in some of the Fastweb papers, and said "Let's call him in for questioning". So they issued an EAW against him, as well as his son and two other Englishmen. The story got some coverage in the Daily Mail and the Telegraph, but did not make many significant waves. Dominic Raab, his MP, raised it in Parliament, and said later "The case has stuck not only in my memory but also in my throat"; it may be hoped that now he is Justice Secretary, it will be possible to lay the ground to remedy situations such as this.

As I understand it Colin Dines had a heart attack on the eve of his extradition, so was not himself extradited, though his son Andrew and two others were. They suffered over a year of preventive detention in Rome, first in prison and later under house arrest in a hotel, and were then induced to accept a shortened sentence of some three years in exchange for not putting up a defence, which meant they could go straight home, since the last two years of their sentence could be suspended. They were told by their Italian lawyers that under Italian law this did not mean they had admitted guilt. But later it emerged that they had been misinformed, and in the UK they were told that it did, and they were landed with a millionaire demand from an Italian court to pay back the "proceeds of their crime". This demand was confirmed by a UK Court.

Meanwhile Colin Dines himself, having had a heart attack on the eve of his extradition which therefore did not take place, was tried in Italy - in absentia, which is allowed under Italian law - and found not guilty (as indeed were the Italian defendants in Fastweb). No confiscation order was issued against him.  

It can here be seen here that a gross injustice against the other three was caused, against which the ECHR offered no remedy.

The lack of Habeas Corpus in continental Europe and the failure of the European Convention and Court on Human Rights to safeguard innocent suspects from very lengthy months and sometimes years of preventive detention, is apparent.

This failure is masked by the Convention's use of the highly elastic weasel word "reasonable" in article 6. Hours or at the most a few days are thought "reasonable" in the UK, whereas for the ECtHR, as we have seen, it is thought "reasonable" for a suspect to wait up to 5 years in prison for his first public hearing in open court. This prospect of apparently endless pre-trial detention was used, with deception, to pressure Andrew Dines and the two others into accepting what turned out to be a plea bargain, which did release them from their state of detention allowing them to go home at once, but left them with a criminal record and a multimillion pound liability to "pay back the proceeds of their crime".

- Andrew Symeou: This case is well-known as an instance of injustice perpetrated by the European Arrest Warrant which requires no evidence of guilt to be shown by the requesting country to any court in the country being requested to extradite a person. We are told, by Policemen's associations and other interested parties, that we must keep the EAW as is, because it provides a "streamlined" extradition system. This must sound brutally ironic to someone like Andrew Symeou, who after a swift extradition from the UK to Greece, was then held in a dreadful prison for 11 months, before his first public hearing, where the case against him collapsed completely and was dismissed owing to lack of any credible prosecution evidence. The only evidence in fact had been beaten out of his friends by Greek police, who made them sign identical statements in Greek, a language they did not understand, and which they retracted as soon as they had reached the safety of England. If only the Extradition Act 2003 had allowed a UK court to examine the evidence against him, his troubles would have been over in a few days. The proceedings would have been far more "streamlined"...

As it was, the ECHR provided no remedy against his detention for 11 months with no public hearing - indeed that Court as we have seen provides up to 5 years as "reasonable" since "detention is intended to facilitate the preliminary investigation". In fact Andrew's lawyers,nboth in England and in Greece, did not even apply to the Court, since it was obvious that it would provide no remedy.

- Prof. Clara Ponsati: A Catalan lady in her sixties working as an Economics professor at St Andrews University, she had been a member of the Catalan government of Sr Puigdemont, which attempted, by peaceful means, to establish the independence of Catalonia from Spain (rather as the SNP has tried to take Scotland away from the UK). She was arrested in Scotland on an EAW from Spain, which charged her with the crime of "violent rebellion", carrying a potential sentence of around 20 years. Unlike the Basque movement ETA, the Catalans only used peaceful methods, such as a referendum which was obstructed by the Spanish Guardia Civil which baton-charged citizens in the street to stop them from going to cast their votes. Other members of the Catalan government were arrested in Spain and held for many long months in prison before being convicted to lengthy prison sentences.
The ECHR offered no remedy, and AFAIK her lawyers did not even try to avail themselves of its services. At no time did she or her associates advocate, let alone practise, violence in their pursuit of Catalan independence. The action by Spain was clearly a violation of her political freedom, and of her right to freedom of expression (art. 10).

There are many other innocent victims of European Arrest Warrants, extradited from Britain  who faced long months in continental jails before the lack of evidence caused the case against them to collapse. Fair Trials Abroad has concerned itself with numbers of cases, and will have a list of them, with details.

- Chris Lees, a Gloucestershire estate agent working in Spain, who was falsely accused of drug dealing, arrested and beaten up by the Guardia Civil and held for over 1 year with no public hearing. At his first public hearing the case against him was dismissed for lack of evidence. His case was related in detail by him in a full-page article in Freedom Today, around 20 years ago, I think, during the time of Norris McWhirter. No remedy was available from the ECHR.

- 1000 persons locked up for long months every year "pending investigation", eventually declared to be innocent, but whose lives, livelihoods and reputations are thereby ruined. It is mentioned in my latest article in The Express ( https://www.express.co.uk/comment/expresscomment/1716882/echr-european-court-convention-on-human-rights-and-Britain-EU-latest-Brexit-news ). This is the figure for Italy, where it has been documented by the small but significant Radical Party, and was shown on Italian State TV by the journalist Alberto Matano in two ten-week series of weekly broadcasts, titled "I am innocent" ("Sono innocente"). Each week he interviewed two - innocent - victims of the system who told their harrowing stories.
The ECHR was never mentioned during the broadcasts, for this type of practice is obviously not covered by the European Convention on Human Rights. It is clearly not confined to Italy, but is common practice in many if not most European States which are governed under the inquisitorial system of criminal justice. Under the UK’s Extradition Act 2003, all EU states are exempted from having to present any indication of evidence of a prima facie case when requesting the extradition, or as it now called, the "surrender", of a suspect. Despite Brexit, the government have confirmed this exemption to still be in force, when replying to two Parliamentary Questions, from Lord Pearson in 2020 and last year from Lord Moylan. Under that Act, every year the UK hands over people with no evidence provided and no questions asked. Numbers of those thus "surrendered" turn out eventually to be innocent, yet they are cast into this sort of meat-grinder.

The Universal Declaration of Human Rights does ban "arbitrary" arrests and imprisonments in its article 9.

The ECHR does not. In addition the implementation of the UDHR, if embedded in a new British Bill of Rights, would be adjudicated by UK courts, not by a foreign court made up of the political nominees of 46 countries, some with pretty dodgy human rights records of their own. The UDHR could therefore be used by the UK as an international bench-mark.

It would then be obvious that by leaving the ECHR, and replacing it with the UDHR, the UK was not “scrapping human rights”, as is currently claimed, but restoring and enhancing them.

©Torquil Dick-Erikson, 14/03/2023. 

Torquil Dick-Erikson specialises as a legal journalist in comparative criminal procedure and is author of The European Constitution against the British Constitution (2004) and The Coming Tsunami (2010) about the very different systems of criminal justice and of policing that the UK might have thrust upon it from Brussels.

The following is a guest post by Christopher Gill, a former MP and a former Chairman of The Freedom Association 

By what logic or imperative does HMG keep us bound to the European Convention on Human Rights (ECHR?

Manifestly it is an obstacle to deporting illegal immigrants, as evidenced by the banning of flights to Rwanda by the European Court of Human Rights (ECtHR).

Manifestly the ECHR does not do what it purports to do, as evidenced by the litany of innocent British subjects who, having been served with a European Arrest Warrant (EAW), have endured false accusation, arbitrary arrest and wrongful imprisonment.

Manifestly, having left the European Union, the UK is no longer under any obligation to maintain membership of the ECHR.

Manifestly the United Nations Declaration of Human Rights (UNDHR) is a more acceptable international alternative to the ECHR, not least because its Article 9 unequivocally states that “No one shall be subjected to arbitrary arrest, detention or exile” and also because it would mean that the final arbiters in British human rights cases would be British judges, sitting in British courts, rather than foreign judges sitting in the ECtHR.

In my submission, voters would regard exiting the ECHR variously as:

a) removing a substantial roadblock to the ending of illegal immigration 

b) a welcome extension of Brexit  

c) a wholly desirable repatriation of judicial powers 

d) a redemption of  broken pledges 

e) an actual strengthening of human rights by dint of making the law of Habeas Corpus applicable in all cases and not least, 

f) a rare example of their Government acting decisively.

Manifestly absurd is the Government’s commitment to continued membership of the ECHR in spite of all of the above and also in spite of that policy being so widely unpopular, as evidenced by a recent Express poll showing 95% of respondents deeming the ECHR’s involvement in British affairs as being “no longer fit for purpose”.

Given all the evidence stacked up against the Convention what is preventing HMG from serving notice to leave?

Is it because the Government lacks the necessary political will?

Or is it because it lacks the grit and determination to overcome opposition within government departments?

Or is it simply because it is fearful of taking radical decisions this side of a General Election?

The fact that the Conservatives once widely trailed leaving the ECHR as something that they would do  –  as Home Secretary Suella Braverman speaking at the Tory Party Conference in October certainly encouraged us to believe  -  all now seems to be riding on Justice Secretary Dominic Raab’s on/off /on again, new Bill of Rights.

But where’s the urgency?

His Bill was first published more than 6 months ago and yet it still awaits its Second Reading in the House of Commons.

Another unanswered question is whether in fact Dominic’s ‘cunning plan’ will pass muster with the Council of Europe given that, as Labour’s Emily Thornberry has correctly observed, one cannot pick and choose which aspects of an internationally agreed treaty, in this case the ECHR, one either observes or ignores.

The Ministry of Justice have advised that “the Bill of Rights will allow us to remain a State Party to the ECHR while allowing us to fully avail ourselves of the margin of appreciation afforded to states under the ECHR and ensure that the democratic will of Parliament is properly considered and respected in contexts where Parliament has legislated”.

We shall see, but it will only take one of its 47 signatories to veto any or all measures aimed at circumventing the terms of the Convention to force HMG back to the proverbial drawing board.

The Daily Telegraph headline (31st January) screamed “Halt migrant boats or face defeat, Braverman tells Tories”. 

So what are we waiting for?

Photo Credit: European Court of Human Rights - (CC BY-NC-SA 2.0)