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AFThe Conservatives have today published Protecting Human Rights in the UK: the Conservatives’ proposals for changing Britain’s human rights laws.

Readers (and perhaps Supreme Court Justices alike) may be surprised by the pledge that the proposals will ensure “The European Court of Human Rights is no longer binding over the UK Supreme Court”.

There is in fact no statutory obligation for the Supreme Court (nor indeed any other court) to be bound by decisions of the European Court of Human Rights.

The Human Rights Act 1998, s 2 provides:

“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights . . .” [emphasis added]

(Ironically, one of the proposals from the Conservatives is that “In future, the UK courts will interpret legislation based upon its normal meaning . . . “).

During our interview in June with the president of the Supreme Court, Lord Neuberger, I asked “Do you think there is any need to make the relationship between Strasbourg and the UK’s approach to human rights clearer?” (at the time I was thinking of Sadiq Khan MP’s then-recent announcement that “Labour will shift power back to British courts”). His answer was:

“I need to be a little careful here because this, arguably, touches on policy and is a political issue, but there have been various commentators recently who have suggested that the UKSC shouldn’t be too subservient to Strasbourg.

“I think the broad question may raise an issue on which I am ultimately neutral because it’s a political one, but I think there are two reasons why the courts should be very aware of what Strasbourg’s position is and think long and hard before departing from what they say.

“The first reason is you want consistency in Europe (and as I see it we are one of the countries with the best records on upholding human rights): if we go too far from Strasbourg it will be used by more oppressive regimes to try and say “look – even the British aren’t according human rights proper respect”.

“The other reason is more technical. One of the real, practical reasons for introducing the Human Rights Act was to avoid decisions being made here without reference being made to the ECHR and then people referring the matter to Strasbourg and years later having their human rights vindicated. If we depart too much too often from Strasbourg that will start to happen. But then again I think there is something to be said for the view that the courts have tended to be subservient to Strasbourg. It’s a fine balance.”

Over at the Head of Legal blog, Carl Gardner analyses the proposals pointing out that some of the measures would actually increase human rights obligations on Parliament – “there is currently no legal duty on Parliament to consider any Strasbourg judgment. The Conservatives plan would oblige it to for the very first time.”

Anthony Fairclough runs Matrix’s legal research team, and is a UKSC Blog Editor. He is on Twitter at @AJ_Fairclough