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Artillery Row

Obstacle courts

Who benefited from prolonging the Battersbee case?

The Archie Battersbee courtroom drama is over. Whatever you think about the final result, no decent reader can feel anything other than enormous sympathy for his parents, or blame them for moving heaven and earth to prolong their son’s life. That said, however, the case retains one highly disturbing feature: the intrusion of organisations of the great and good from outside the UK, apparently as a matter of course, into the legal resolution of what should be an entirely domestic matter.

Until last Friday everyone assumed that once the English courts had had their say, that was it. But that evening everything changed. The media reported, sensationally, that everything was back at square one because of an “injunction” from a United Nations body, the Committee on the Rights of Persons with Disabilities (CRPD), to whom the parents had “appealed”, to keep the boy alive. The matter returned to the courts, which in due course decided that the injunction had no legal force here.

Once again everything ground to a halt

Was this the end? Actually, no. The parents promptly filed another application, this time to the European Court of Human Rights in Strasbourg, asking it to order “interim measures” to keep the boy alive pending full argument on the human rights issues. Once again, everything ground to a halt; lawyers argued the toss. It took until Wednesday evening for matters to start again after Strasbourg declined to get involved.

In one sense the ultimate result is heartening. Our courts saw off the UN intervention, and the spanner in the works from Strasbourg never in the event materialised. Nevertheless, we should still be worried.

For one thing, these events unnecessarily extended already agonising court arguments over a further five long days, to no-one’s advantage and the continued distress of all involved. In sensitive and traumatic proceedings like these which need to be handled with sensitivity and a minimum of protracted argument, this cannot be right.

For another, applications to international bodies or the European Court of Human Rights, while not technically appeals (as you probably guessed, our law allows no appeal from our highest courts to other bodies elsewhere), are used by litigants as if they were. They are increasingly weaponised as a useful tactic to second-guess our courts and invoke the shibboleths of international and human rights law to coerce public bodies into acting on orders our judges have refused to give. This is neither healthy as regards respect for our own legal system, nor comfortable for bodies that find themselves subject to conflicting orders. Nor, for that matter, are the legal credentials of the bodies involved themselves entirely impeccable. The CRPD is not a judicial body at all, being comprised (in effect) of UN apparatchiks professing various degrees of activism. Even with the European Court of Human Rights there is no formal requirement for judges to be legally-qualified, and a de facto practice of appointing those disposed to extend, rather than restrict, the role of human rights norms.

Thirdly, events like this upset the delicate balance between democracy and human rights. Controls like those exerted by Strasbourg or the CRPD are tolerated by governments precisely because they are limited. Governments tolerate them because they remain free to act at home subject only to their own law. Day-to-day court orders, interim or otherwise, are for national courts exclusively: international intervention comes ex post facto only, in the form of a later decision whether the government overstepped. When supranational bodies such as the CRPD or the Strasbourg court begin issuing orders about what is to happen in future, they are usurping the function of national courts, tipping the balance, and risking the loss of any acceptance they already have.

If you want confirmation, look no further than to the events seven weeks ago, when the Strasbourg Court peremptorily ordered the UK not to remove an asylum-seeker to Rwanda, contradicting our own courts’ refusal to intervene. All hell broke loose, and there were serious suggestions that this might drive the the UK might leave the ECHR entirely. This is a lesson that needs mulling carefully.

What should we do about this mess?

With Strasbourg there is actually some debate as to the legalities. The Human Rights Convention explicitly requires the UK to obey final Strasbourg judgments, but says nothing about interim orders. It is the Strasbourg court that has unilaterally insisted on slightly specious grounds that the letter must be treated in the same way; the UK government for one does not agree. In practice, however, this problem may well quietly disappear. Following the Rwanda debacle, Dominic Raab’s Bill of Rights now has a provision allowing UK public bodies, and requiring its courts, simply to ignore them. This seems a sensible solution. We do not know how the Council of Europe, which administers the Convention, will react. But that body may well see discretion as the better part of valour if it wishes to keep the UK on side.

What of the UN? The “injunction” from the CRPD arose from an allegation that a slightly obscure UN convention we ratified in 2009, the Convention on the Rights of People with Disabilities, required it as an aspect of Archie’s right as a disabled person to life and equality. Here, moreover, we were explicitly required to take seriously any UN “request” for interim measures: hence the return of the case to the courts.

This, in the long term, is more worrying

This, in the long term, is more worrying. Even though our courts have thankfully held the CRPD’s orders unenforceable domestically, they remain valid in international law. And they could be troublesome. Not only does the government face further guerrilla warfare in future from the UN over the decisions about the best interests of those unable to fend for themselves; more seriously, other conventions too have similar provisions, with and thus present similar prospects of mischief. Take, for example, another convention ratified by the the UK, the Convention for the Elimination of Discrimination against Women (CEDAW). This has a good deal to say about matters such as abortion and governments’ duties to intervene in education in the name of equality: one may well find awkward pressure being exerted here too by way of interim orders from UN committees.

Having signed conventions such as these from a misplaced feeling that they were in a good cause and did no harm, we may now have to reconsider our position. We should be prepared to contemplate either withdrawing from them entirely, or at least from those protocols allowing us to be ordered around by international civil servants. Such a process may well be politically uncomfortable. But if it is a choice between retaining a vague international feel-good factor and keeping international organisations from interfering in internal affairs that should be none of their business, there is a case for the radical option.

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