28 December 2013
Last updated at 06:55 ET
Lord Judge was responding to comments by the ECHR’s president
Claims the European Court of Human Rights can set law on social matters threatens Parliamentary sovereignty, a former lord chief justice has said.
Lord Judge said Parliament needed to decide how much power it was willing to give up to the court in Strasbourg.
Meanwhile, the European court’s head said Britain is violating international law with a ban on prisoners voting.
Judge Dean Spielmann said if Britain did not adhere to European human rights laws it could face leaving the EU.
Lord Judge, the former Lord Chief Justice of England and Wales, told BBC Radio 4’s Today programme he was concerned that Judge Spielmann was claiming too much power for a body of unelected judges whose rulings could not be challenged.
“This is a court which is not answerable to anybody,” he said.
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I genuinely don’t think that a body of judges – however distinguished – should have that sort of power”
Former lord chief justice of England and Wales
“If it’s right, it can’t be over-ruled by anybody. I genuinely don’t think that a body of judges – however distinguished – should have that sort of power.”
Lord Judge said he supported the European Convention on Human Rights but insisted the court was overstepping itself in attempting to dictate rather than influence the social legislation of member states.
He urged the government to rally support across Europe to rein the court in.
“His (Judge Spielmann’s) view means that the court in Europe is entitled to tell every country in Europe how it should organise itself,” he said.
“He refers to it as a living instrument. Of course the convention isn’t a dead instrument, but it means that legislation can be made by judges on all sorts of societal issues – binding legislation – and if that’s the position there is a very serious problem with sovereignty.
“It’s not a UK problem, the sovereignty issue affects every single country in Europe.”
He added: “It is time for us to recognise that it is a very important time. My own view is: stop here.”
But Judge Spielmann, who sits as president of the European Court of Human Rights, told Today that the UK should not heed the demands of some Conservative MPs to defy the court’s ruling on prisoner voting rights.
He said such a move could propel Britain out of the Council of Europe, which created the court, and consequently the EU.
“All the members of the European Union are also members of the Council of Europe. I can hardly see how a member of the European Union could 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.”
Lord Judge acknowledged that there were differences among British judges as to what extent the rulings of the European Court of Human Rights were binding on the UK which MPs now needed to resolve.
“My very strong belief is that this issue now needs to be resolved by Parliament,” he said.
Lord Judge called on Parliament to clarify the extent to which European Court of Human Rights rulings were binding in the UK.
“The issue that is in play here is not the convention, it’s sovereignty. The most fundamental principle of our unwritten constitution is parliamentary sovereignty.
“Our elected representatives have ultimate sovereignty not only over our own unelected judges but in my view over the unelected judges of any other jurisdiction, including Europe, unless we choose to give them sovereignty.”