Attorney general aims to limit European power over English law
Dominic Grieve to appear before the European court of human rights in Strasbourg to argue his case
Owen Bowcott legal affairs correspondent
guardian.co.uk, Monday 24 October 2011 20.54 BST
The attorney general is to appear before the European court of human rights in Strasbourg to argue that English and Welsh courts should have "primary responsibility" in interpreting its laws.
In a speech on Monday, Dominic Grieve QC tried to limit the European court's powers in enforcing those aspects of the European convention of human rights held to be contentious. Grieve's decision to address the grand chamber, the European court's upper house, next month on points raised by an Italian case of prisoners' voting rights, indicates that the government will challenge what it perceives as Strasbourg's authority.
But Grieve dismissed any call by rightwingers to withdraw from the convention, stressing that figures such as Winston Churchill were instrumental in its inception in the early 50s.
"The United Kingdom was the first country to ratify the Convention [in 1951]," Grieve said in his speech at Lincoln's Inn, central London. "The United Kingdom will not be the first country to leave the Convention."
Next month the UK takes up the rotating chairmanship of the governing body of the Council of Europe, the body that oversees the convention. Last week the Lord Chief Justice told the House of Lords that the British courts are not fully bound by Strasbourg decisions but must only "take them into account" and is not binding. Precisely what that entails is disputed.
Among recent human rights cases that have caused resentment, particularly among Tory MPs, was the decision that prisoners should be given voting rights. The government has not yet spelled out how it will implement it but has indicated that it will do the minimum necessary.
Grieve said that he wanted to strengthen the principle of subsidiarity, the idea that national jurisdictions should have greater powers to interpret convention rights.
In his speech, Grieve said: "The principle of subsidiarity is that national authorities of member states (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level.
"The principle stresses the subsidiary nature of the supervisory mechanisms established by the convention, including the European Court of Human Rights, in achieving these aims.
"... Of course the United Kingdom should still be subject to the judgments of the Strasbourg court but the court should not normally need to intervene in cases that have already been properly considered by the national courts applying the convention.
"We need clarity. That is why the United Kingdom is intervening in Scoppola [the Italian prisoner voting case] before the Grand Chamber of the European Court of Human Rights.
"I am personally going to Strasbourg to plead the matter on behalf of the United Kingdom.
"I will argue that the principle of subsidiarity requires the court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for parliament and the court should not interfere with that judgement unless it is manifestly without reasonable foundation.
"And this is an argument that I would submit really cannot be advanced in respect of our national practice on this issue."
Comment: The Grand Chamber of the ECtHR is not the venue to argue a case at first instance within another case, Scoppola, on appeal on other grounds. Any changes sought by the AG must go through the Committee of Ministers of the Council of Europe, and Parliamentary Assembly of the Council of Europe.
It is also not the venue to challenge the Court's jurisdiction. Once again that is for those authorities I have listed above.
The UK may well have been the first country to ratify the Convention, but it took another 60 years before it incorporated a watered down Convention into domestic law. Greece left the Convention in the 1960s. The Council of Europe has accused David Cameron of acting like a Greek Colonel.
Dominic Grieve has a very narrow interpretation of the subsidiarity principle and is attempting to pick 'n' mix.
Dominic Grieve's arguments have legal flaws which a competent Attorney General should not be advancing. If I was one of the ECtHR judges, I would laugh the Court jester out of court.
UPDATE: Read the AG's speech in full here.
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