Lord Judge: EU courts too powerful

By  Steven Swinford, Senior Political Correspondent

The European Court of Human Rights is undermining Parliament's sovereignty and must "stop here", the former Lord Chief Justice has said. 

Lord Judge warned that "activism" by European judges is creating a "very serious problem" and that Parliament should have "ultimate sovereignty". 

He said that the European Court of Human Rights in its present form is “not answerable to anyone” and raised concern that “any judges” – however distinguished – “should have that sort of power”. 

It comes amid growing Conservative anger over interventions by the court, including rulings that Britain’s ban on prisoner voting is illegal. 

The Tories will put scrapping the human rights act, which means that British courts have to take account of the rulings of the ECHR, at the heart of their manifesto for the General Election. 

Lord Judge told BBC Radio 4's Today programme: "The most fundamental principle of our unwritten constitution is Parliamentary sovereignty. 

"In short, our elected representatives have ultimate sovereignty over not only our own judge, but in my view the unelected judges of any other jurisdiction. 

"I think it [the human rights act], means you take account of, have regard to [European rulings], but it does not mean we are bound by the decisions. My very strong belief is that this issue needs to be resolved by Parliament." 

He said that the European Court of Human Rights appears to have taken the view that it is "entitled to tell every country in Europe how to organise itself". 

He said: "It means that legislation can be made by judges on all sorts of societal issues, binding legislation. If that's the position there's a very serious problem of sovereignty. It affects every country in Europe. 

"I think that what happens is that the court has gradually had more and more decisions to make. There is a treaty obligation. The court then feels that the treaty obligation is one that must be performed. My own view is, stop here" 

He said that he accepts the principles on which the European Convention was founded, but not the way it is being interpreted. 

"Can we just remember, I'm a supporter of the convention but it was largely written by British lawyers for a war-torn, concentration camp filled continent. I'm in favour of the convention. 

"Of course it [the European Court of Human Rights] is a valuable court, it offers us insights we might not otherwise have. That's rather different from giving this particular court this particular sovereignty." 

Lord Judge has previously suggested that the Human Rights Act should be amended to make clear that Britain's courts are not inferior to European judges in Strasbourg. 

His appeal to the European Court of Human Rights to "stop here", however, goes significantly further. 

One official at the ECHR, who did not want to be named, told the BBC that he was concerned that some European judges are little more than “activists” and are unqualified for the role. 

He said: “You’re hearing what the senior British judiciary and many Conservative MPs have been complaining about for some time. We know that around half the Strasbourg judges had no judicial experience before going to the court, which means it’s no surprise they go off on judicial frolics of their own.” 

Dean Spielmann, the President of the European Court of Human Rights, yesterday criticised British MPs for opposing prisoner voting and said that the "rights of criminals" need to be protected. 

In a legal battle dating back to 2004, the European Court of Human Rights has repeatedly ruled that a blanket ban on prisoner voting is incompatible with European law. David Cameron has said that the prospect of giving prisoners the vote makes him feel “physically sick”. 

Ministers have drafted a bill which will offer MPs a range of options, including retaining the blanket ban. They are expected to vote overwhelmingly in favour of keeping the status quo. 

However, Mr Spielmann said that if MPs vote to retain the ban on prisoner voting Britain will have to consider leaving the European Union. 

He said: “If that [retaining the ban on prisoner voting] were to be the option it would be clearly inconsistent with the international law obligations of the United Kingdom. 

“I cannot see how the United Kingdom could remain a member of the Council of Europe [the body which established the ECHR] while at the same time withdrawing from the convention of human rights. 

“I can hardly see how a member of the European Union could possibly withdraw from the council of Europe. I see a problem there. I think from a political perspective it might be very difficult to stay in the European Union.” 

The debate has been further complicated by advice from a committee of peers and MPs examining prisoner voting. They have suggested that the blanket ban on prisoner voting is “grossly disproportionate”, and recommended that those serving less than a year should be given the right to vote. 

The committee's proposals would also see those serving less than a year and those with just six months left on their sentences given the vote, meaning some of Britain's most serious criminals would be able to take part in local, general and European elections. 

Lord Judge’s intervention came amid a new row over plans to force member states to adopt new European rights. 

The rights, which are contained in the European Union's Charter of Fundamental Rights, include the right to strike, the right to collective bargaining and the right to marriage. 

The UK opted out of the charter in 1998, but the European Commission is suggesting that they could be imposed on all member states. 

Chris Grayling, the Justice Secretary, condemned the plans as "absurd". He told The Daily Mail: “This country never wanted a charter of fundamental rights and the idea that we would sign up to changes that meant it took over our domestic laws is absurd. 

“The European Commission should stop trying to create a European justice system, and should let member states get on with solving the real challenges we face.” 

The charter was rejected by Tony Blair, the former Labour Prime Minister. However, a new consultation document calls for it to be implemented across the European Union. 

It says that people’s interest in the enforcement of “fundamental rights” is high, and suggests that “one option would be to make all fundamental rights guaranteed in the charter directly applicable to member states.” 

Earlier this year, Mr Justice Moyson, a senior High Court judge, expressed concern about the impact of the charter. 

He made the comments after the barrister for an asylum seeker cited the document in a failed attempt to win his case. 

He said he was “surprised” by the document: “I was sure the British government had secured an opt-out at the negotiations of the Lisbon Treaty,” he said. He added that the document suggested that the opt-out “does not intend intend to exempt the UK from the obligations to comply with the provisions of the charter." Telegraph