Britain is set to become like Russia. This is the stark warning of the Secretary General of the Council of Europe, Alain Berset, if Reform UK or the Conservatives enact their stated policies of withdrawing from the ECHR on winning office.
Whilst this is initially a sobering prospect, perhaps being like Russia might have its upsides? For a start, it would mean a huge improvement in the government’s debt to GDP ratio, and a vastly improved balance of payments position. And whatever the downsides of the invasion of Ukraine, Russia certainly doesn’t have a state-manufactured youth unemployment crisis. Quite the opposite!
I am being glib here, of course — unlike Mr Berset who, being Swiss, presumably intends for us to take him quite literally. Berset told Politico that, while Britain naturally had the option of withdrawing from the ECHR, exercising that right “would create a new group of European countries not members of the Council of Europe and not implementing the Convention: Russia, Belarus and the UK. That would be the consequence.” This is of course a commonly used argument against withdrawing from the ECHR. It is also almost as straightforward an example of the fallacy of false equivalence as we are likely to come upon in the wild.
Join Britain’s most civilised publication.
Challenge the consensus. Access rigorous analysis.
The argument creates a verbal Venn diagram with two characteristics — “physically being (at least partially) in Europe” and “not being in the ECHR”. Finding that Britain would join Russia and Belarus in the intersection, it declares that Britain would become “like Russia”. There are of course many countries that are not in the ECHR — there is no rational argument made as to why geographical location ought to be a critical variant. One could easily replace ECHR membership with another characteristic, such as “possesses nuclear weapons” and find that Britain and France already intersect with Russia and have done so for decades, without anybody making a similar equivalence by virtue of our common location in Europe.
There are, however, more interesting and profound ways in which Britain does share real political characteristics with Russia. We are both peripheral to Europe, but have nevertheless both made occasional, dramatic interventions in the course of the continent’s history. We both have a detached and conflicted notion of our respective relationships with Europe, with some within our societies regarding Europe as our natural home in the world, while other elements see it as a deviation from, or a threat to, our national destiny. Unlike other European countries, the British and the Russians have alternative directions in which to look, other than inward toward Europe — Britain out to the Atlantic and Russia over its shoulder to Asia. Despite this, both the British and the Russians are far more firmly rooted in Europe’s cultural soil than are the Turks — the other civilisation with whom we share some of these peculiarities today.
But there are obviously far greater dissimilarities. Whilst both Britain and Russia shared a similar aloofness to the wave of constitutional and legal rationalisations across the rest of Europe over the 19th century, this served to preserve political traditions that had little in common anyway; the subsequent divergence after 1917 resulted in alien approaches to justice, political representation and the rights of the individual.
In the aftermath of the Second World War, Britain regarded itself as having a particular duty in shaping the future of the continent to prevent a return to totalitarianism and conflict. This was both a practical and a moral role that arose from its position as one of the major liberating and occupying powers, as well as the only significant country in the region whose institutions had not been gutted by dictatorship, occupation or war. Deliberations had been underway well in advance of the war’s ending, and the attitude of both Churchill’s wartime coalition and Attlee’s post war government was informed by the high-mindedness of benign imperialism. That is to say — the idea was to stop the continentals from being beastly to one another once the fighting was over. Britain would be party to the treaties but not necessarily a subject of them.
In opposition, it was Tory figures such as Duncan Sandys, David Maxwell Fyfe and Churchill himself who played a major role in the creation of the European Movement, which lobbied the British and French governments to create the Council of Europe and draft the European Convention of Human Rights. British representatives including Maxwell Fyfe and Samuel Hoare were critical in the drafting process; working to avoid vagueness and ensuring that the finished document reflected British assumptions about civil society and democracy. In 1951, Britain became the first country to ratify the treaty. However, Britain’s dualist tradition meant that the treaty did not automatically become part of our domestic law, and the principle of the sovereignty of parliament deterred any attempt to incorporate it into law via primary legislation at the time. There was anyway, even among Labour types, the universal assumption that safeguards against tyranny were unnecessary in Britain. That function was already fulfilled by parliament and the Crown.
The ECHR came into force in 1953, but for Britain it remained an international treaty to which the government was party. It had limited bearing on the application of the law in Britain. In 1966, Britain first accepted that British nationals had the right to petition the European Commission of Human Rights in Strasbourg under the ECHR, once all domestic remedies had been exhausted. However, this remained a long and slow process. It wasn’t until the Blair government implemented the 1998 Human Rights Act that the ECHR applied directly in British law. This was, as it was intended to be, a revolutionary change to Britain’s legal architecture, and preceded other momentous changes including the Constitutional Reform Act of 2005.
1998 was, coincidentally, also the year that Russia ratified the ECHR, having signed in 1996 — the same year in which the new Criminal Code of the Russian Federation was implemented. Russia having a monist legal tradition, the ECHR immediately applied directly to domestic Russian law. The anti-totalitarian and pro-democratic ethos of the Council of Europe and the ECHR had been self-consciously set in opposition to Soviet communism. During the Cold War, the institutions had been exclusively Western in membership — and neither the Soviet Union itself nor any Soviet aligned country signed the convention until after the end of the conflict.
Although it lacked the physical damage, Russia’s institutions in the 1990s were arguably in an even worse state than those of the western European countries in the aftermath of World War II. Its economy was in the depths of a profound depression, and the collapse of the institutions of Soviet life inflated the already endemic cynicism of that society into truly nihilistic proportions. The political atmosphere was one of simultaneous bewilderment and tedium, and what remained of the late Soviet intelligentsia began to doubt their own capacity to escape the mindset of the USSR. As Viktor Chernomyrdin, briefly prime minister of Russia, later put it; “whatever institutions we tried to create, they always ended up resembling the Communist Party”.
As with the remnants of the pre-war political class in Western Europe by the late 1940s, the Russian intelligentsia looked to Europe — as a notion — as a means of transcending the collective loss of self-confidence. Yet it was not to be — the intelligentsia were never meaningfully in power in any case. The emerging oligarchy empowered the remnants of the Soviet deep state — those who had been slightly too young to be implicated in any of the really terrible mistakes — to manage the country on their behalf. Lacking the idealistic misconceptions of the liberal intelligentsia, the new technocrats would pay lip service to Russia’s place in Europe, and to its treaty obligations under the ECHR, for only as long as it was politically convenient. Russia would eventually be booted out of the Council of Europe in 2022; many years after it had served to show the world just how little ECHR membership actually counted for.
Meaningful input into this debate is unlikely to come from elsewhere in Europe
The costs and benefits to a future British government of withdrawing from the ECHR have been well litigated in these pages and elsewhere. In mainstream British debate, the case for opposing withdrawal is currently intellectually underpowered and fatuous. Along with the Russia comparison, their other favourite zinger is to ask which specific rights a proponent of withdrawal personally feels they could do without (the answer is, obviously, the right to commit aggravated sexual assault in a foreign country without being deported). The only person seriously to wrangle with the potential pitfalls of leaving the ECHR in a manner that might actually change anybody’s mind on the subject is Pete North who, to put it mildly, does not sit within the liberal mainstream of British human rights discourse.
But if Alain Berset’s intervention tells us anything, it is that meaningful input into this debate is unlikely to come from elsewhere in Europe. Britain has markedly different legal traditions and approaches to civic society than those of the continent. Western Europeans previously had an understanding that the English-speaking world worked slightly differently, but that has been replaced by a dichotomy wherein it is either their way or Russia’s. A compelling political argument on a contentious subject requires nuance and an appeal to things that might find personally important. This in turn calls for common points of reference and a depth of shared understanding that simply doesn’t exist at a pan-European level.
The hosts of the Eurovision Song Contest are required to put on entertainment for the benefit of non-commercial broadcasters who need something to fill screens during the slots allotted for adverts. The result is inevitably an uncanny, cringe-inducing attempt at a form of humour that will work for an audience that don’t have enough in common with one another for any jokes to land. Bereft of subtlety and delivered in the stripped-down Euro-English of the Strasbourg functionary, Berset’s intervention was the political equivalent of that. And it was about as likely to change anybody’s mind as Eurovision humour is to make anybody laugh.
Enjoying The Critic online? It's even better in print
Subscribe today to Britain's most civilised magazine
Subscribe
