Nothing is more likely to induce apoplexy in the average English Tory than the prospect, real or imagined, of being told by foreigners how they should order their affairs. Especially when the foreigners concerned are judges on the European Court of Human Rights. Hence all that talk during the recent EU referendum campaign of “taking our country back”.
The European Convention on Human Rights was drawn up in the aftermath of the second World War. Britain was a founder member. (Indeed, it had a hand in drafting it.) Initially about 40 countries signed. Spain and Portugal did not join until after the fall of fascism in the 1970s, and most East Europeans signed up in the 1990s, following the collapse of communism. Even Russia is a now signatory.
The terms of the convention – a right to life, a fair trial, freedom of expression, etc – are general and ought to be uncontroversial in any genuine democracy. Overwhelmingly, the countries with the most findings against them are Russia and its former satellites. Less than 1 per cent of the cases brought against the UK have resulted in positive findings.
It is only when one gets down to specifics that the problem arises. For, as Conor Gearty points out in his new book, the cases that provoke the most outrage among the righteous and their friends in the tabloid media are those that test the very limits of democracy.
These would include the suggestion that prisoners (at least those serving short sentences) should have the right to vote. Or claims brought on behalf of Iraqi civilians alleging mistreatment by British soldiers – those brought up on the myth that our soldiers are the best in the world find this particularly upsetting. Or actions on behalf of the despised, be they terrorist suspects or asylum seekers.
British courts
The 1997 Labour government, initially at least, was relaxed about the convention. One of its first actions was to incorporate it into British law, thereby enabling its enforcement by British courts and obviating the need for most claimants to take their case to Strasbourg, where the court sits.
As time passes, however, and in the wake of the increasingly draconian anti-terrorist legislation that has followed 9/11 and the growing crisis over asylum seeking, decisions based on the convention have become more controversial. The long struggle to deport terrorist suspect Abu Qatada was a particular cause célèbre.
Britain’s reaction to the occasional adverse ruling was, to quote Prof Gearty, to behave “like an agitated parent on the edges of a children’s football match, calling for special treatment for their beloved from time to time, screaming abuse on occasion, but never quite pulling their child away”.
Until now. The Tories, in their 2010 manifesto, undertook to withdraw from the court and enact a uniquely British bill of rights, but their Liberal Democrat coalition partners kiboshed this commitment. Now that the Conservatives have an overall majority, however, they are free to do as they please and may well go ahead with enacting their own bill of rights.
As Prof Gearty writes, however, there are several problems with this. First, it is far from clear how much different the Tory bill of rights would be from the European version they affect to despise. Second, it is likely to lead to more, not less, British applications to the European court, the very opposite of the desired outcome. The only way round that would be to repudiate the convention.
Shape society
The author, an Irishman who teaches human rights law at the London School of Economics, is an unabashed admirer of the 1950 convention and all that has flowed from it. He has written a lucid, forensic, somewhat irreverent exposition of what for many people is an arcane subject, but one that has done more than most of us realise to shape the society in which we live.
He enumerates and then rebuts what he says are the four most common myths (hence the title) about European human rights law: that it subverts British parliamentary sovereignty, that it hands power to the judges over elected representatives, that it trumps British law, and that it is a charter for villains. He points to the little known fact that the decisions of the European court are not binding, merely advisory.
Until now, however uncomfortable, Britain has always respected the court’s decisions, not least out of a feeling of responsibility that as one of the original signatories of the convention we should set an example to others.
He argues that, both in Britain and in relatively undemocratic countries, decisions of the court have led to substantial improvements in democratic rights, often of the most vulnerable citizens. What’s more, although they may not be happy with adverse outcomes, even the worst offenders accept its jurisdiction and usually attempt to implement its decisions.
Repudiation of the convention by the UK would be a big step with far-reaching consequences. After all, why should we expect countries such as Russia or Bulgaria, who are the subject of much harsher and more onerous judgements, to respect the convention when Britain, a country not infrequently given to lecturing others on the virtues of democracy and respect of human rights, declines to do so?
Chris Mullin is a former Labour minister in Britain. His memoir, Hinterland, will be published next month by Profile Books.
