will brexit put strasburg out to grass?

A large proportion of those who argue that Britain should leave the European Union do so because they feel that too much power from the UK Courts has been taken away by the European Courts of Human Rights in Strasburg. Many argue that unelected Judges from different Nations in Europe have a say in how the UK applies its laws. They therefore argue that if the UK is to leave the EU, so called Brexit, then this will put an end to Strasbourg’s “meddling”.

However, in my opinion, this misses a fundamental point of how European jurisprudence impacts upon how the UK courts apply our laws.

The UK courts, and in particular the Supreme Court, are not bound absolutely to follow any and all rulings made by Strasbourg. They merely have to ensure that the UK’s laws are interpreted in line with the general principles set out in the European Convention on Human Rights. Surely as a human being these principles, such as the right to a fair trial, the right to private and family life and the right to be free from torture, are agreed by all citizens wherever in the world to be fundamental principles of a decent democratic society. Even if the UK were to leave the European Union we would still have to apply the jurisprudence from the European Court of Human Right’s rulings to ensure that we are still acting in a globally human rights friendly way.

The European Court of Human Rights does not allow all cases brought before it to succeed. They apply common principle. Indeed in cases before the Supreme Court in the UK, Judges have disagreed sometimes with how Strasbourg has reached its conclusions.

I was involved in the case of Kaiyam v Secretary of State for Justice, which was argued before the Supreme Court. What was clear in the reasoning of the Supreme Court’s decision in this case was that they disagreed with how Strasbourg had reached the decision that it had done in the case of James v the UK although it ultimately agreed with the conclusion. This is a very good example of how the UK courts are not handcuffed by Strasbourg and merely have to give proper weight to the decision. Even if we were to leave the European Union we would still be minded to give weight to their jurisprudence and indeed the UK Courts use a variety of jurisprudence throughout the world to help him form their decisions. These persuasive precedents will still exist.

Therefore in my opinion, the answer to the question posed at the start of this piece is to be answered in the negative. Strasbourg will still play a significant role in how the UK courts reach decisions about cases under UK law. We are not, and have never been, handcuffed to simply follow Strasbourg like a nodding dog.

Whatever your views are as to Brexit, do not be fooled that this is a strong basis on which to do so.

Carl Miles, Head of Prison Law, Burton Copeland