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Artillery Row

The ECHR is out of control

The Strasbourg court has waged a decades long crusade against national sovereignty and traditional values

Last week Tory MPs attempted to push through a bill requiring the British government to ignore the ECHR ruling against the Rwanda deportations. The measure was defeated by Labour MPs, giving Tories the chance to engage in their favourite hobby — angrily muttering about “Strasbourg”, “Europe” and “the death of British sovereignty”. It was almost like the good old days when you could blame everything on the EU. 

Even for those who want stronger borders and are concerned about the rise in refugee crossings, Rwanda was not a well thought out policy, and British courts have shown little appetite to enforce it. Given that refugees still make up a small fraction of overall numbers entering the UK, it’s hard to escape the feeling that the Rwanda flights are a dead cat strategy, a phoney culture war the Tories are desperate to fight so we don’t ask too many hard questions. 

Refugees may be difficult to deport, but what of the hundreds of thousands of work and student visas handed out by the government every year? The government has the power to fulfil their promise to bring migration down to the tens of thousands tomorrow. They are unwilling to cut off the flow of cheap labour into the private sector, and the profits their rich friends make from this steady supply of human flesh and muscle. 

Beneath the bluster, there’s a serious question that we should be asking ourselves about the ECHR. Sensible centrist sorts have all been making outraged noises and pointing out in hushed tones that the ECHR was founded by Winston Churchill and exists to prevent genocide. You wouldn’t want to promote genocide now, would you?

The ECHR has mirrored many US Supreme Court problems

As so often with British “internationalists”, their sentimental attachment to transnational bodies reveals as much of a lack of curiosity about what actually happens in the mysterious world of “abroad” as that of the most furious Little Englander. 

The ECHR is a very different animal now than it was in 1959. Churchill, like many who pushed for greater European unity, speculated in cheerful terms about a “United States of Europe”. Curiously enough, the ECHR has mirrored many of the problems of the US Supreme Court, but in ways that are even more unaccountable and are further confused by its ambiguous authority and status.

In America, on any number of controversial issues, rights have been “discovered” by the courts in reaction to evolving social attitudes and laws passed by state legislatures. The US Supreme Court has ruled for a right to abortion (Roe v Wade) and more recently a right to enter a same-sex marriage (Obergefell), despite these never having been countenced by the authors of America’s constitution, bill of rights or any other amendments. Meanwhile the courts in the past century have veered increasingly in the direction of a stricter separation of church and state with, for example, the ban on the direct funding of religious schools. This latter is, again, far beyond the scope of what would have been imagined by those who wrote the laws applied. 

The Supreme Court, at least until recent Republican appointments, has served as a one-way “ratchet” which accelerates and promulgates increasingly broad and “progressive” interpretations of constitutional and human rights law. Especially liberal states act as outriders, mainstreaming new legal and social norms; more moderate liberal states follow suit. Pressure filters upward to the higher courts, paving the way for a Supreme Court judgement that can then be wielded against more conservative states and populations. 

This mechanism wouldn’t be possible without an activist judiciary, which in America’s politicised system of judicial appointments is more or less a given. It has been greatly intensified by a new fervent progressivism which sneers at the idea of judicial objectivity and asserts that everything is political. 

In Europe, the same mechanisms are at work. If anything the processes involved are far more extreme, if much less legally binding in effect. Because there are forty-six sovereign nations rather than federal states, the divergences in law and culture are far broader. Conservative Islamic Turkey and Catholic Italy and Poland are rubbing shoulders with ultra-permissive nations like the Netherlands and Germany. 

Whilst originalism is a prominent legal doctrine in the US system which even liberal judges must contend with, in the ECHR something called the “living instrument doctrine” predominates. Human rights law can continually evolve to encompass changing conditions, shifting social mores and new developments in the policies of member states. 

This means that something may be (according to the ECHR) a personal preference one year, and a fundamental and irrevocable human right the next, depending on social attitudes and vaguely construed international “norms”. Notably, the ECHR has never ceased to recognise a human right based on changing social attitudes — the ratchet only goes one way.

When the courts are politicised, hostility naturally emerges

This process has long been underway, but one of the most obvious and pressing areas has been gender identity and trans rights. There were two early cases involving trans individuals pushing for legal recognition of their new gender identity, that of Rees v. the United Kingdom in 1986 and Cossey v. the United Kingdom in 1990. In both cases the court found against the complainants, recognising that there had been no Article 8 (the right to privacy) violations. However even in 1986 the court anticipated the next step in the ratchet, noting that it would be “keeping the need for appropriate measures under review, having regard particularly to scientific and societal developments”

By 2002, in Christine Goodwin v. the United Kingdom (a very similar case to those that had been unsuccessful only twelve years ago), the court was ready to start pushing the envelope and found for the complainant. The court cited “a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals”. It was this case that helped lead the United Kingdom to introduce a system whereby trans people could apply for a “Gender Recognition Certificate”. 

Despite the meek claims to be followers of opinion, the courts amplify and feedback small scale and limited shifts in opinions, generally amongst elites, into forceful laws and judgements that lead to legislation which in turn shapes and imposes opinions. Since the introduction of the GRA (Gender Recognition Act) the UK has seen biologically male rapists sent to women’s prisons and biological males seek to enter women-only shelters. Yearly referrals of children to the Tavistock Clinic with gender dysphoria have gone up from 138 in 2010–11 to 2,383 in 2020–21.

The implications of this system are massive, with sweeping social changes engineered by unaccountable judges floating free of democratic politics or national courts. Some may celebrate the policies, but they should look to America for the troubling implications of the new kritarchy. When the courts are politicised, hostility naturally emerges amongst those on the wrong side of judicial politics, as we saw in 2009 when the ECHR sought to remove crucifixes from Italian classrooms (Lautsi v. Italy). 

The Italian government, drawing on its own long-established traditions, reads secularism as going with the grain of Italy’s traditional Catholic culture, arguing that the crucifix was a “cultural and identity-linked symbol, the symbol of principles and values which formed the basis of democracy and western civilisation”. For Italians, whose liberal humanism is still implicitly tied to Catholic humanism, the very principles of liberal democracy cannot be fully militated against Christian symbols and ideals. 

The ECHR is an increasingly dangerous and imperialistic body

The ECHR sought to rip this understanding apart, undermining a perspective that underpins the Italian identity and constitutional order, citing, amongst other things the fact that we “now live in multicultural, multi-ethnic societies”. If the presence of religious and ethnic minorities, according to the ECHR, means that Europeans cannot live out their cultures and traditions, we should not be surprised if many people draw exactly the opposite conclusion to that which enlightened liberal judges would hope. Perhaps no wonder that Italy, as it bore the brunt of the Mediterranean refugee crisis, has turned increasingly to parties of the nationalist right, most recently with the election of the Brothers of Italy. 

There are a number of serious issues likely to appear before the court in the coming years, most notably euthanasia. Thus far the court has ruled consistently agonistically, generally finding in favour of national arrangements, either for or against euthanasia. Given its history, the ECHR is unlikely to remain neutral for long. 

Thus far only a small minority of European states permit euthanasia, but that is beginning to change. In my first article for the Critic, I wrote about the danger of rule by judge. In 2020 the Germany Federal Constitutional Court ruled that “the prohibition of assisted suicide services … violates the basic law and is void”, paving the way for a judge rather than legislative-led euthanasia regime. All the same conditions that laid the groundwork for epochal judgements, on matters such as trans rights and same-sex marriage, are in place for a European right to die. 

The ECHR is an increasingly dangerous and imperialistic body, grown far beyond its initial remit, and transformed into an arrogant, unaccountable and rootless authority committed to socially engineering “progressive” outcomes using the tool of human rights law. 

This arrogance was much in display in a recent report by the human rights commissioner of the Council of Europe (the body that funds and runs the ECHR), which argues “that the Bill of Rights Bill, which would repeal and replace the Human Rights Act 1998 (HRA), would weaken human rights protections by encouraging a divergence in interpretations by UK courts and the European Court of Human Rights of rights set out in the European Convention on Human Rights (ECHR)”. The commissioner also “warns against attempts to frame the protection of the rights of trans people and those of women as a zero-sum game, and “reiterates her concern about the chilling effect that the extradition of Julian Assange would have”. 

Although not a formal representative of the court, the views of the commissioner are indicative of the institutional biases in the bureaucratic edifice of the Council of Europe and the ECHR itself. Her report seems likely to both reflect and shape the policy of the court in relation to cases involving the UK. 

Conservative MPs, whatever their political motives, are entirely right to question this body. The UK needs to give serious thought and consideration to removing itself from an institution that attempts to subvert British law and sovereignty. 

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