The hard-hitting speech, the former Tory leadership candidate came in the wake of the repercussions of the ECHR blocking deportations to Rwanda of illegal migrants in a case where the Strasbourg court even refused to disclose the identity of the judge. Ms Braverman warned that legislation to undo Tony Blair’s Human Rights Act and bring in a British Bill of Rights needs to be an early priority for whoever takes over from Boris Johnson. Ms Braverman also used her speech to warn schools that they would be breaking the law if they allow transgender pupils to use single sex toilets or other safe spaces intended for the opposite biological sex.
The Attorney General, who is being talked of as a potential Home Secretary if Liz Truss becomes Prime Minister, had vowed in her short leadership bid to take Britain out of the jurisdiction of the ECHR.
In her speech she made it clear that the way the court operates means that the UK has to change its relationship with the Strasbourg based court.
She said: “The rule of law and democracy are undermined by the Strasbourg Court deciding matters of policy that should be determined by the democratically elected branch of government – Parliament.”
She went on: “These issues are heightened as the Strasbourg bench of judges is composed by justices from continental legal systems. They are used to operating without a formal doctrine of binding precedent.
“This means that their habit is to force the ‘right’ result in the case – even if that means straining the law – with less of a focus on how that case will influence future cases.”
Ms Braverman highlighted the case of a Nigerian referred to the courts as OO who was sentenced in 2016 to four years in prison for offences including possessing crack cocaine and heroin with the intention to supply, and then pleaded guilty in 2017 to battery and assault.
In 2020, the First-tier Tribunal allowed his appeal against deportation on grounds that OO’s ‘very significant obstacles’ to integration in Nigeria outweighed the public interest in his deportation, despite the serious nature of his offending, and deportation was irreconcilable with Article 8 (the right to respect for private and family life).
This was later upheld on appeal.
In another case – D v UK – a case of a foreign convicted drug dealer, the Strasbourg court held that the effect of discontinuing his medical treatment available in the UK but not available in his destination country, amounted to inhuman or degrading treatment.
Then the UK Supreme Court, referring to the Human Rights Act – which is the European Convention of Human Rights written into British law – decided in in AM (Zimbabwe) v Home Secretary in 2020 that the medical facilities available to the deportee in their home country would remove any real risk that their lifespan would be shortened by removal from NHS facilities.
Ms Braverman said: “When someone is being deported from a developed to a developing country this will often be the case.
“This places an increased burden on our national resources and extends the concept of ‘fundamental rights’ beyond what was originally intended.”
She added: “In short, the Strasbourg Court has operated to thwart aspects of our domestic policy making in relation to illegal migration.”
She also warned that the application of the ECHR in British courts was also allowing protesters to get away with blocking roads or damaging property as happened in the Sir Edward Colston statue case in Bristol where she has asked an appeal court to consider the acquittals of the protesters.
She said: “This Government’s reforms to the Human Rights Act will bring welcome predictability to these imported and vague Human Rights standards.
“They will prevent trivial human rights claims from wasting judges’ time and wasting taxpayer’s money by introducing a permission stage in court, requiring claimants to show they have suffered a significant disadvantage before their claim can go ahead.
“They will also reinforce in law the principle that responsibilities to society are as important as personal rights by ensuring courts consider a claimant’s relevant conduct, like criminal behaviour, when awarding damages.”