European Convention of Human Rights - Time to leave?


Last month while countless column inches were given over to questions of Britain’s membership of the European Convention of Human Rights, I published a piece examining the role of the European Court from both sides of the argument. Originally destined for a research website, the article said everything and nothing.

Worthy though I hope the piece was, it called to mind the admonition of Malcolm Tucker:

“It’s make-your-mind-up time… I mean, what do you want to be? Do you want to be a p**** that works here for a year, then goes away and joins a think-tank to write ‘oh, on one hand this and on the other hand that’…”
So, time for an opinion.

Back in the Day

First let’s consider the history of the Convention. After the war, with the active support of Winston Churchill, the Edinburgh-born lawyer and Conservative MP, David Maxwell Fyfe was instrumental in creating the European Convention of Human Rights. Presenting his draft in 1949, he declared that, ‘we cannot let the matter rest at a declaration of moral principles and pious aspirations, excellent though the latter may be. There must be a binding convention, and we have given you a practical and workable method of bringing this about.’ Since then, the UK has remained at the forefront of European and indeed global efforts to promote through example the advancement of human rights both at home and abroad.
That, I am confident, will not change.

How are we doing?
Today, despite the newspaper headlines and hyperbole, the European Court of Human Rights decides only a fraction of the UK’s Human Rights cases. In 2011, for example, 2,300 UK cases were referred to the European Court, of which 1028 were thrown out, 68 were referred back to the UK for consideration, just 19 judgements were actually made and of those only eight found violations of the Convention. In fact, if we look back to all the UK cases referred to the Court since 1966 we find that 97% have been inadmissible or have been struck out; just 3% went to judgement. On the face of it, these figures would suggest that our courts already make sound judgements which meet our human rights obligations (and are indeed cognisant of the Convention on Human Rights).

So what’s the issue?
Well, it is not so much what the Convention says, which has not changed significantly since it was agreed in 1953, but rather the interpretation placed upon the Convention by the current Justices. Let’s remember that when the Convention was drafted and adopted, Europe had just emerged from the most destructive war imaginable, half the continent had fallen to the Communists, Germany was still being administered by the Allied Powers and Britain had food rationing. Things are different now.

The Convention is a ‘Living Instrument’; its words are unchanging but its application to current circumstances evolve in the hands of Justices tasked with interpreting the Convention. The emergence of the Internet and our concepts of privacy, the growth and recognition of the rights of children, gender equality, gay rights, access to justice, investigative journalism, have all driven the evolution of human rights. The challenge is therefore how to affirm a commitment to a suite of fundamental principles that should be, in the words of Prof George Letsas of University College London, ‘immune from ephemeral political changes’ while also allowing for a novel interpretation of the convention which, ‘few, if any, of the original actors (drafters, judges, the people) could have foreseen’.

There is not a single clause in the Convention that states prisoners shall have the right to vote. Nor is there a single clause that states a suspected terrorist facing extradition has the right to a family life. These are interpretations placed upon the Convention by Justices of the Supreme Court.

What about the people?
In the UK, our parliament is sovereign, (be it UK, Scottish, Welsh or Northern Irish). Only our elected representatives serving in Parliament as the vox populi can make the laws that bind us. We may cede that right, as we do often to the EU, but we do so sure in the knowledge that we retain a hand in how those laws are made– whether through the European Council or indeed through my role as an MEP.

Yet with European Court of Human Rights, there is no democratically elected parliament to debate, discuss, interpret, direct or overturn the judgement of the Court. When judgements are made by the Court that conflict with the sovereignty of Parliament (whether in the UK or elsewhere in Europe) who then shall redirect the Court?

Advocates of the ‘living instrument’ concept state that present day conditions could never be fully addressed by a simple adherence to the letter of a Convention drafted in the aftermath of the most destructive war fought on our continent. For such advocates, the challenge is to articulate the nature of the pre-commitment represented by adoption of the Convention, given that its meaning is not to be treated as frozen. Such advocates need also explain why the European Court of Human Rights (and not parliaments) should have the power to drive the change in meaning of the Convention and how far the Court may go before it starts to abuse this power.
The will of the people in these matters is clear, not least in Scotland where the question of prisoners’ rights became a litmus test in the recent Scottish Independence Referendum Bill. During the debate on that bill in the Scottish Parliament, MSPs voted overwhelmingly to exclude prisoners from the vote. When the case of Moohan & Another v Lord Advocate was brought to the UK Supreme Court, challenging the Parliament’s decision, the UK Justices threw it out within the hour. Our courts and our parliaments have made their views clear: prisoners may not vote.
Parliament v. European Court
In reality our courts do not ignore the Convention – in fact, the UK Supreme Court has often shown its ability to affect significant change in our laws through the interpretation of the Convention without the direction of the European Court. In 2010, our Supreme Court ruled (in Cadder vs HM Advocate) that the way that police detained suspects in Scotland breached the Convention. The fear of mass appeal led the Scottish Government to change the law. Today suspects arrested in Scotland must be afforded a lawyer before any questioning. As the former Head of the UK Supreme Court Lord Gill said, the reshaping of our relationship with the European Court does not stop our courts from taking account of the Convention in its judgements.

That being said, the European Court of Human Rights is not, cannot, be the only arbiter of Human Rights in Europe. There must be a democratic counterbalance, a means to address the right of a sovereign parliament to confront a Court judgement with which it fundamentally disagrees. Otherwise as the ancient Greeks forewarned, Quis custodiet ipsos custodes? Who will guard the guards? Who will say that in the case of the prisoners’ voting rights rights, it is the European Court of Rights which is right, rather than the Parliaments of the United Kingdom.

In his first inaugural address, Abraham Lincoln was confronted by the Supreme Court Decision, that affirmed the view that a slave was property and could be owned and traded - the Dred Scott decision. Considering the decision of the Court, he declared that, ‘If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased … to be their own rulers.’

The simple truth is this: if the case for allowing prisoners to vote, or for allowing suspected terrorists to stay on British soil, has not been won in the British or Scottish Parliaments or in the hearts and minds of the British people, then these decisions should not be forced upon us. To do so brings the European Court into disrepute.

Are we bad?
This position does not hinder our constant pursuit of human rights in the UK and across Europe. Nor does it undermine our adherence to the Convention itself, where our record on human rights places us in the top five in terms of compliance and delivery of human rights. Rather it is a reminder that the interpretation of the Convention as a ‘living instrument' must from time to time be tempered by the sovereign will of the people expressed through the voice of parliament.

So the question is, should we withdraw from the European Convention of Human Rights? And the answer is, no, we should not. However, the Justices who seek to interpret the Convention must be sensitive to the reality of parliamentary sovereignty. The challenge for the United Kingdom, and indeed for other signatories to the Convention who share our view, is to ensure that parliamentary sovereignty is respected. Judging by the rhetoric on all sides it will not be easy. Such an approach may not be how you win elections, but it is how you ensure that the Convention on Human Rights continues to serve as a ‘beacon’ to all the people of Europe, just as David Maxwell Fyfe envisaged all those years ago.