Hands off Ken Clarke! He can reconcile British pride with European justice

Hands off Ken Clarke! He can reconcile British pride with European justice

Reforming the European Court of Human Rights while proposing a compatible British bill of rights is the perfect job for our justice minister

Timothy Garton Ash, guardian.co.uk, Wednesday 8 June 2011 20.00 BST



The Daily Mail has found a new European dragon to slay. "Euro judges," it shrieks, "trample UK sovereignty and insist: You will give prisoners the vote." "Killers and rapists go to European court of human rights to win full state benefits," it chunters, over a story reporting an application to – but not a decision by – the Strasbourg court. The venting spleen of Tory Britain even denounces David Cameron for not delivering on promises he made in opposition – when, we are told, he "solemnly vowed … to do something about the European court's human rights laws which are making a mockery of British justice".

Of all the targets a Eurosceptic organ could choose to take aim at, this is one of the oddest. The Strasbourg court has nothing to do with the European Union and its Brussels bureaucrats, which is what Brits usually mean when they excoriate "Europe". It is part of the Council of Europe, which Winston Churchill was instrumental in establishing, and which is an almost entirely intergovernmental organisation, now including 47 states. (Only Belarus stands apart.) The court's job is to enforce the European convention on human rights, a resonant post-1945 statement of human rights and freedoms, largely drafted by a British lawyer, Sir Oscar Dowson.

The Strasbourg court is the one place to which anyone in any of those 47 countries can turn, from Portugal to Russia and from Norway to Turkey, if they feel that their rights have been trampled upon and that they cannot secure redress at home. For example, in a case heard last year it held that someone should not be obliged by the Turkish state to disclose her or his religion on identity documents.

States may not always act to comply with these judgments, but sometimes they do. As many a persecuted woman and man will tell you, this is a whole lot better than having no external redress at all. With all its faults, it is the closest thing we have to a realisation of Churchill's dream of "a European court … before which cases of the violations of these rights … might be brought to the judgment of the civilised world".

What is more, under the British chairmanship of the Council of Europe, which starts this November, the European Union itself, having acquired so-called legal personality in the Lisbon treaty, is due to join both the convention and the court. This may seem an obscurely technical, not to say theological issue, and some important details have still to be ironed out, but the potential consequences are important.

If the change goes through as planned, then for the first time an individual Brit – or Pole, or Italian, or Estonian – could take a case against the EU itself to this independent, international court, overseen by a strictly inter-governmental body. "Brussels is trampling on our liberties!" cries John Bull. Well, take the Eurocrats to court and hold them to account against a largely British-drafted charter of rights. You'd think a patriotic, freedom-loving paper like the Daily Mail might approve of that. But no. It's all bloody Europe and Europe is by definition bad.

None of which is to suggest that the European court of human rights is perfect. Far from it. It has at least three major problems. First, it has a grotesque backlog of some 140,000 applications pending, and desperately needs a better way to filter out the frivolous and trivial ones. Second, being an intergovernmental organisation it has one judge for each member state – that's one for Germany and one for San Marino, one for Russia and one for Liechtenstein – and some of them are not very good. The one judge per state principle is hard to change, but more should be done about the selection of the individual judges. (Of course you can have a bad judge from a big state and a good one from a small.)

The variable quality of the judges, and the sheer diversity of the legal traditions and national experiences from which they come, have contributed to a jurisprudence which even (or perhaps especially) human rights lawyers criticise for inconsistency. On crucial issues such as free speech, for example, the Strasbourg court has made important good judgments and notorious bad ones.

Taken together, these flaws add up to the need for a significant reform of the court. That's exactly what the embattled justice secretary Kenneth Clarke says he wants to take forward while Britain is in the chair. At least no one will suspect him of being hostile in principle to Europe. Meanwhile, there's nothing at all wrong with the idea of Britain writing its own British bill of rights – provided that it is fully compatible with the overarching European convention. That is precisely what a motley commission, recently established by the coalition government is charged with doing: to examine ways of producing a British bill of rights that "incorporates and builds on all our obligations under the European convention".

So long as that remains a given, it seems to me even better to have a British bill, worded in muscular English prose, with explicit reference to British history and traditions, wrapping in the Union Jack what will in practice be essentially the same rights. Given the hostility of many Brits to anything political or legal with the word "European" on it (by contrast with European football, wine and second homes, which they adore), this would surely strengthen the popular embrace of those rights. The more that Brits can make these rights their own, and the easier it is for them to bring a rights-based case in British courts, the better. The Strasbourg court will still be there as a last resort, which is exactly what it should be.

Reform of the Strasbourg court and producing a British bill of rights entirely compatible with the European convention: that is the way forward. And the man for the job is Ken Clarke – as British as roast beef, as European as the heaviest Burgundy.