Why are the Conservatives against the European court of human rights?

Tories have been stressing opposition to judicial supremacy of the ECHR in Strasbourg for the past year. Here's why
Judges of the European court of human rights preside over a hearing at the court in Strasbourg
A hearing at the European court of human rights in Strasbourg. Critics say the ECHR is becoming over-intrusive in areas that should be the proper preserve of domestic courts and parliaments. Photograph: Vincent Kessler/Reuters

The prime minister, David Cameron, the justice secretary, Chris Grayling, and the home secretary, Theresa May, as well as some senior judges have for the past year been stressing their opposition to the judicial supremacy of the European court of human rights (ECHR) in Strasbourg.

Conservative ministers have repeatedly promised a party manifesto detailing a new human rights policy for the coming election. The long-awaited document is expected to deal with the complex relationship between the UK courts, the European convention on human rights and the Council of Europe, which oversees the Strasbourg court and the ECHR itself.

The removal from the cabinet in the latest reshuffle of both Ken Clarke, the Europhile former minister without portfolio, and the liberal-minded attorney general, Dominic Grieve QC, appears to have cleared the way for Eurosceptic instincts to dominate Tory thinking on human rights.

What is the Council of Europe?

Made up of 47 states, the Strasbourg-based council is the political body that governs the running of the ECHR. It contains foreign ministers as well as representative parliamentarians from every member country. Every state in Europe, except Belarus, is a member. The UK was a founding signatory in 1949.

Who created the European convention on human rights?

Drafted in 1950 by the newly established Council of Europe, the convention is a statement of basic human rights intended to ensure that the horrors of the Holocaust and the second world war could never return. The UK, and in particular the Conservative MP Sir David Maxwell-Fyfe, were prominent in drawing up the convention, which lists fundamental rights such as the right to life and prohibition of torture.

How does the European court of human rights (ECHR) operate?

The ECHR was established by the convention to consider cases from states in the Council of Europe. Its judgments put into effect the articles of the convention in relation to specific cases and complaints brought by litigants. The number of cases it has to consider has mushroomed over the years, although it has recently reduced its backlog to under 100,000 cases.

What is the problem with the ECHR?

Critics of the Strasbourg court claim that because it interprets its judicial remit as advancing a "living instrument" – developing legally binding precedents from its interpretation of the basic articles of the convention – it has moved far away from its founding principles. Strasbourg's requirement that the UK introduce some form of voting for prisoners is, the critics say, an example of the ECHR becoming over-intrusive in areas that should be the proper preserve of domestic courts and parliament.

Can the ECHR not be reformed?

Both Ken Clarke, when he was justice secretary, and Dominic Grieve have been strong advocates of expanding what is known as the "margin of appreciation", the leeway granted to each state in allowing for a certain amount of national differences. They have been unable to persuade the Strasbourg court to give sufficient ground in the prisoners' voting case to satisfy the Eurosceptics.

What would be the consequence of quitting the Council of Europe and the ECHR?

Grieve, Clarke and many others have warned that walking out of the Strasbourg convention would undermine respect for human rights across Europe, encouraging those who are already slow to enforce ECHR judgments to switch to defiance. It would, they suggest, lower international respect for the UK just at a time that the government is investing so much in promoting Britain's history of democracy and respect for the rule of law through celebrating the 800th anniversary of the signing of Magna Carta. Membership of the Council of Europe is a requirement of all new states joining the European Union. It will be constitutionally difficult for the UK to remain within the EU, many senior lawyers point out, once the European court of human rights has been repudiated.