What specific benefits accrue to the United Kingdom as a result of our adherence to the European Convention on Human Rights? That question ought to be our starting point, but it is almost never asked.
Were there habitual violations of civil freedoms before 1953 when the Convention entered into force? Were we deporting whole populations, expropriating our citizens without due process, throwing dissidents into internment camps? No? Then what is it we’re supposed to have gained?
It won’t quite do to say that our leaving would send the wrong signal to the Ruthenes or the Bessarabians. For one thing, that’s the answer to a different question; and for another, as I’ll explain in a moment, it’s not true.
A lot of people evidently believe – or at least affect to believe – that Britain was somehow “given” its rights by the Convention, or else by the Human Rights Act of 1998, which incorporated the ECHR into national law. Amnesty International, for example, has taken out newspaper advertisements saying “Don’t Scrap Our Human Rights” – a message rather contradicted by the text of the ad, which correctly points out that “a government cannot give human rights or take them away”.
Human rights have become a protean and inchoate concept. For some of their advocates, they are simply a way of elevating political aims to a grander plane, thereby intimidating their opponents. For example, the EU’s Charter of Fundamental Rights and Freedoms guarantees our right to “strike action”, “free healthcare” and “affordable housing”. These may be perfectly good ambitions, but in what sense do they constitute basic, inalienable freedoms?
If you think about it, the “human” bit is otiose. All rights by definition apply to humans, since – unlike oysters or grasshoppers – we are legal persons, able to enter into relations with other persons mediated by the law. Governments may create a statutory claim to something – paid leave, say, or religious schools or, indeed, “affordable housing” – which may then be enforced by the courts. Fine. The trouble with vaguely worded charters that presume to sit above such statutory rights is that, in the hands of activist judges, they can be used to mean almost anything.
A couple of weeks ago, I wrote an article in the Spectator backing the government’s policy of ensuring that, in the event of a conflict of jurisdiction, Parliament, rather than the Strasbourg Court, would have the final word. This is by no means just an academic problem. Supporters of the ECHR tend to gloss over the current row about voting rights for prisoners. The European Court of Human Rights has instructed Britain to legislate in a particular way, and Parliament has clearly and explicitly refused. That creates an unresolved – and, as things stand, unresolvable – problem.
As I expected, the most common response to my column was the babyish one which even a surprising number of barristers adopt on this subject: “Why do you Tories have a problem with basic human rights?” But it also attracted some more serious and well-thought-out criticism, above all this persuasive piece from Barrister Blog. The author didn’t address the problem caused by the incompatibility between what the ECHR demands and what Parliament has voted for on enfranchising prisoners. But he did fairly point out that repealing the Human Rights Act would make no difference, in this or in other cases, as long as Britain remained bound by the ECHR:
“What of the judgment, also mentioned by Mr Hannan, that the blanket ban on prisoners voting is an interference with their human rights? Again, it had everything to do with the European Convention but nothing whatever to do with the Human Rights Act. The prisoners could, and no doubt would, have taken their case to Strasbourg even if the Human Rights Act had never been passed.”
True. I should have been more forthright on this point. The logic of my argument does indeed lead to the withdrawal of that Convention. So let me ask the question again. What specific benefits accrue to the United Kingdom as a result of our adherence to the ECHR?
The answer typically given by most supporters of the Convention has more to do with diplomacy than with jurisprudence. Leaving, they say, would put us in the wrong company, and dishearten reformers in less advanced democracies. The UN special rapporteur on the human rights of migrants, François Crépeau, likened withdrawal from the Convention to the Nazi persecutions in the 1930s. All right, that’s an extreme example, and one shouldn’t judge a case by its most obnoxious advocates, but a great many ECHR supporters offer a more moderate version of the same argument when they say that leaving the Convention would align Britain with Belarus.
No it wouldn’t. Britain is a law-based liberal democracy. It was before it acceded to the Convention, and it would be after it left. Belarus, by contrast, is an authoritarian dictatorship. The difference between the two states, in terms of civil rights, doesn’t owe much to Strasbourg judges.
It would be just as silly for someone on my side to claim that membership of the ECHR puts us in the same category as Russia, while leaving would align us with New Zealand. Indeed, “Russia” is the short answer to those who claim that we need to stay in in order to encourage the Bessarabians and Ruthenes.
It’s odd that I find myself having to write this, but the point evidently needs making. Inviting an overseas tribunal to interpret our rights is not the same thing as “giving” us those rights. The more remote the interpretation of rights becomes, the harder it is to do anything about it when that interpretation loses contact with the plain meaning of the words.
I’ll say it one more time. No one has a problem with the prohibition of torture, the right to a fair trial or any of the other things offered by the European Convention. Our problem, rather, is with judges who frequently rule on the basis of what they think the law ought to say rather than what it says. In the words of the current British judge at the ECHR, a lifelong Eurocrat called Paul Mahoney: “The open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation. In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.”
If the newspapers are to be believed, the option of withdrawal is now off the table. Britain will be left with the half-way house of partial repatriation. Barrister blog’s criticisms of such an option carry a great deal of force.
Why, though, is the PM reported to have ruled out straightforward disengagement? He is too clever to think that abrogation would “scrap” a single right. The real explanation is surely that several lawyers are telling him that adherence to the Convention may now be a condition of EU membership, and – as Jean-Claude Juncker indiscreetly revealed – David Cameron has absolutely no intention of leaving the EU. Which is a pity, really: leaving the EU would have been a delicious bonus.