Artillery Row

What’s the point of the ECHR?

Social policies have become issues of human rights

If you say you are going to make the world a better place by only dealing with people whose morals you approve of, you will quickly find that you don’t have many friends, or for that matter much influence.

The same also applies with nations. The UK by and large recognises that it doesn’t do to be too moralistic. True, it has a bad habit of lecturing foreign governments in a rather sanctimonious way about their lack of muscular commitment to such things as female equality, LGBT rights or the abolition of the death penalty. But having done so, in general it will still quite happily do business with most of them – basket-cases like Iran or North Korea aside – whatever it might otherwise feel about their internal social policies.

The EU seems less easy-going. In the Brexit negotiations it has said that part of the price of security co-operation with the UK, and maybe other co-operation too, is a commitment by the UK to remain signed up to the European Convention on Human Rights at the international level and retain the domestic Human Rights Act 1998. At least according to some news stories in the last couple of weeks, moreover, this may be a point where the UK is thinking of giving way. It should not do so.

You might think this a perverse view. After all, not only the UK, but every member of the EU, is signed up to the ECHR. The EU itself is on the brink of joining the Convention in its own name; and its own Charter of Fundamental Rights is in essence a clone of the ECHR with a few extra bells and whistles added, such as free-standing rights to equality and non-discrimination. If so, surely the UK should be prepared to concede this one.

There are, however, a number of very good reasons against agreeing to this particular piece of self-righteous muscle-flexing on the part of the EU.

The ECHR was never designed to do the job it does today

The first is that it is precisely that – muscle-flexing. Accepting for a moment that the EU has a legitimate interest in protecting itself from having to continue close relations in future if its nearest neighbour lurches into illiberalism or dictatorship, this can easily be dealt with by something much more limited than the Convention. For example, there could always be an overarching agreement in principle that, that any deal must be contingent on the UK remaining a country with free and fair elections, a reasonably free press, or whatever. There is patently no need for an insistence on the maintenance of the whole paraphernalia of the ECHR system, dealing with all sorts of matters from privacy to gay rights, and extending (as it does) not only to Britain itself, but wherever in the world the British state manifests itself in the form of warlike or peacekeeping operations. As with the Good Friday Agreement, which does place certain requirements on the UK as regards human rights in Ulster, again a much more limited agreement aimed at the particular conditions in Northern Ireland would be quite enough.

The second reason is that the ECHR itself has increasingly obvious flaws which should make anyone think twice about doing anything to entrench it further. True, it still has a comfortable place in the hearts of much of bien-pensant middle-class Britain, as the beneficent institution that has served Europe well in the last seventy years. But this mask is slipping, and rightly so.

For one thing, it was never designed to do the job it does today. Although the Convention has taken on the appearance of a quasi-constitutional document for Europeans as a whole, being compared to the Bill of Rights in the US Constitution and spawning countless lawsuits on detailed claims relating to everything from the smacking of schoolchildren to transgender birth certificates, this was not its original intention. In the post-war years it was largely seen as a treaty between nations, to be invoked at a fairly abstract level, aimed at not much more than putting moral and political pressure on those seen as being in danger of backsliding into fascism. The right of individual petition was there but was seen as a minor add-on: it was only a good deal later that this particular tail began to wag the dog.

Further, there is little doubt that in the last forty years, under the influence of an activist human rights judiciary loyal to a kind of cosmopolitan soft-left ideology more at home in a university philosophy seminar than in the varied social conditions actually prevalent in Europe, the Convention has become correspondingly skewed. Privacy rights are distended, free speech and religious rights fairly carefully circumscribed. The territorial reach of the Convention has been expanded to reach all military operations abroad; at home, the individual’s right to property is rather limited. A right to non-discrimination, studiedly left out of the wording, has been quietly insinuated by some carefully contorted construction, and now applies to subjects as varied as marriage, social security and inheritance rights. Furthermore, where a right has been back-pedalled, as in the case of religion, the Convention has sometimes had the perverse effect of encouraging states to afford protection only at the minimum level required rather than in some more generous way.

Of course, changes of this sort may well be acceptable if brought in with some kind of popular mandate. Unfortunately, these weren’t. The very point of human rights provisions is that the interests they protect are regarded as so important that they should be outside the democratic process. Although this in turn behoves the judges to whom we entrust human rights decisions to be very sparing in what rights they are prepared to accord this enhanced protection, it is difficult not to conclude that this need has been largely ignored. Questions such as whether there should be some overriding right to non-discrimination, or that the balance between free speech and privacy should be drawn in one place or another, are in general matters of social policy that ought to be subject to the ordinary political process; their elevation to human right status is a distortion of the political process best avoided.

But there are two even simpler, knock-out reasons why we shouldn’t accept the imposition of the ECHR. One is that, although all other EU states are in fact members, they don’t have to be. There is nothing in any of the EU treaties that requires it. Poland or Hungary could denounce the Convention tomorrow and retain the privileges of EU membership, including co-operation and trade; there would be nothing the EU could do about it. If this is right it would be very perverse for the UK, a country outside the EU, to accept a condition for future co-operation which was not imposed even on existing member states.

And the other? Democracy, pure and simple. Under the terms of the ECHR itself, any state can under Article 58 denounce the convention entirely on six months’ notice. The institution has already changed almost unrecognisably since 1950: it may well change more. If people decide that the approach it now takes to matters of social policy is outdated, and elect a government that agrees with this view, the choice should lie with them; it is no business of any government now to constrain it by any treaty entered into with a foreign power.

There is some hope that the government has seen this. According to one report, it has offered the EU a fairly abstract commitment not to “materially alter the spirit” of the present Human Rights Act. This is probably vague enough to be fudged by a future government committed to exiting the ECHR system and replacing it with a protection of fundamental rights more fit for this century. Let us hope, for the sake of the future, that the concession goes no further.

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