For decency’s sake, let’s quit Strasbourg
The European Convention of Human Rights is now misinterpreted, misapplied and debases the currency of humanism
This article is taken from the February 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.
Shibboleths these days come in all shapes and sizes. Since the UK signed the European Convention on Human Rights (ECHR) in 1950, few have dared question the need to maintain our allegiance to it. It is nevertheless time that we left it.
There is scope for much misunderstanding here, so a bit of background helps. Under the Convention (which being separate from the EU is completely unaffected by Brexit), the UK undertook as a matter of international law to safeguard assorted rights: the rights to life, to be protected from torture, to independent courts, to private and family life, to freedom of religion and speech, and so on.
It was primarily an international agreement between European states still recovering from the horrors of the second world war
Since 1966, the UK has accepted the right of individuals alleging infringement to complain direct to the European Court of Human Rights in Strasbourg; since 1998 the Human Rights Act has incorporated the ECHR into domestic law so that British courts can apply its terms directly. Parliament can theoretically legislate contrary to it; but there is a strong reason for not doing so, because doing so will put the UK in breach of international law. How could anyone object to all this? Which of the Convention rights, I am asked, do I want to abrogate? The answer, of course, is none.
The difficulty with the Convention is rather more subtle. It is that because of developments since 1950 it has changed almost out of recognition; that in so doing it now threatens both democracy and humanitarianism itself; and that it needs to be replaced with something more suitable.
It’s easy to forget that in 1950 the ECHR was not the European quasi-constitution it is seen as today. It was primarily an international agreement between European states still recovering from the horrors of the second world war, aimed at allowing governments to exert moral pressure at the state level against members thought to be backsliding into fascism or inhumanity. The right of individual petition existed, but was secondary; states had to opt in, and not many did.
Since then, however, there have been two changes.
One is that the right of individual petition has become universal and has all but supplanted interstate cases. As a result, while the wording of the ECHR has not appreciably changed, the process of interpreting it has. Instead of determining fairly vague principles applicable on the international plane, it now involves the kind of exercise undertaken by national constitutional courts such as the US Supreme Court when deciding cases brought by the citizen against the state.
This would not necessarily matter, had it not combined with something else: a spate of activism on the part of the Strasbourg court, and of national courts following its lead. Since the 1990s, the human rights establishment (both academic and judicial) has become very noticeably liberal.
As a result, the general rights stated in the ECHR are now construed very extensively indeed, way beyond how they were originally conceived. The right to life, for example, introduced as an uncontroversial prohibition on totalitarian-style state murder, has been stretched to cover mere negligence by state bodies, and failure to take what Strasbourg sees as reasonable steps to investigate deaths.
The right to private and family life, originally seen as guarding against such things as Nazi-style eugenics and random house searches, has multiplied like ground elder. It has been extended to require the state to afford people the right to sue for aspersions on dead relatives, to enforce extensive laws against hate speech, and (probably) to permit abortions in certain cases.
In addition, it has virtually taken over large areas of public policy. This includes the law of deportation of criminals (on the basis that expelling a person may incidentally break up relationships), not to mention the very sensitive area of the right to privacy and its relation with the Press (for instance, Meghan Markle’s claim against the Mail on Sunday last December was argued very largely on the basis of human rights rather than English law; so too it is human rights that empowers celebrities to control closely what newspapers say about their affairs).
Every yard advanced by discretionary human rights in this manner is a yard’s retreat for democracy
The Convention’s right to free elections has been interpreted as severely restricting states’ rights to deny prisoners the vote. Yet again, although the ECHR creates no free-standing right to equality, the obvious statement in Article 14 that the rights outlined in it apply to everyone without distinction has been creatively interpreted by an activist Strasbourg judicial cadre to amount in many cases to a prohibition on discrimination: for example, between the married and the unmarried in terms of compensation for injury, or between straight and gay couples in the matter of adoption rights.
Whether these are good ideas is not the point. Making human rights out of them is wrong, for at least two reasons. It debases the currency of humanitarianism. By all means protect really important rights from ordinary political rough-and-tumble: the prohibition on deliberate state murder and torture, say, or free speech, without which any decent democratic processes wither away. But this needs to be the limit.
Accord human rights status to claims by gay couples to adopt on the same basis as straight couples, by celebrities to protect their amour-propre by suppressing embarrassing reports about their lives, or by foreign criminals to stay because they have formed a liaison here, and we immediately lose the distinction between rights that are truly vital and those that are discretionary.
The other reason is that every yard advanced by discretionary human rights in this manner is a yard’s retreat for democracy. Arguing, as human rights enthusiasts increasingly do, for ever greater areas of social policy to be taken out of the ordinary political process, subverts the legislative process. To the contrary: the more important and controversial a particular matter of social choice — think abortion, privacy, non-discrimination — the more this is a reason to have it decided by democratic process and not left in the hands of a self-perpetuating professional elite.
The problem is that pruning back the luxuriant growth of human rights is not possible. The ECHR prevents it. Reforming, or even repealing the Human Rights Act, also will not work. The Strasbourg court will continue to preserve and insist upon the primacy of its interpretation. In the end, there is only one solution. The ECHR allows any party to leave it with six months’ notice.
This will shock many people, particularly those who believe adherence to the ECHR signals support for civilisation against barbarism, and that withdrawing would make us a pariah state, on a level with a non-member like Belarus.
Yet, plenty of non-European countries such as Canada, Australia and New Zealand seem to stay remarkably civilised without signing up to anything like the ECHR. They are rather more liberal that a number of countries that are members — Russia and Azerbaijan come to mind. Decent is as decent does.
It has also been said, with similar disingenuousness, that the ECHR is as British as roast beef: the rights it upholds have always been part of our law and indeed its drafting was overseen by the politician and future Lord Chancellor, Sir David Maxwell-Fyfe. But the intention behind what was written in 1950 and the creative edifice the activist Strasbourg court has refaced it with in the intervening 70 years is far removed from what that Scottish Tory lawyer intended.
Withdrawal would not signal any abandonment of humanitarian law. In place of the ECHR there should be a home-grown Bill of Rights, establishing precisely the class of rights that do deserve special protection. Indeed, these might in many cases be nominally similar to those already in the ECHR.
Vitally however, they would be domestic law rights, to be interpreted free of the “Strasbourg effect” of free-wheeling exegesis. One could, for example, provide for its interpretation to be without reference, or with only last-resort reference, to Strasbourg jurisprudence.
Further, to emphasise its home-grown nature and increased democratic legitimacy, it could have some form of symbolic backing from UK voters, say in the form of a referendum (a special arrangement would have to be made for Northern Ireland, where under the Good Friday Agreement there is provision for judicial protection of the rights in the ECHR).
If you look closely, our history is replete with laws once seen as essential to a civilised national life, from the Corn Laws to the European Communities Act. It only took a degree of political courage to depart from them, to the great advantage of the rest of us. Perhaps in a few years we will see the clanking European human rights system in much the same light, provided we can show a similar degree of self-confidence now.
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