Britain and human rights: Contempt of court

Britain and human rights

Contempt of court

The government tries to solve yet another European problem

And don’t even think of asking to vote

WHEN British politicians rail against meddling “Europe”, it can be a toss-up whether they mean the 27-strong European Union (EU) or the Council of Europe, the 47-member outfit best known for the European Court of Human Rights that it runs in Strasbourg.

With the euro ablaze, British dreams of reforming the EU may have to wait. In contrast, the Conservative-Liberal Democrat coalition has big plans for the Strasbourg court after taking over the council’s six-month chairmanship on November 7th.

The Strasbourg court acts as a final place of appeal for those claiming a breach of the European Convention on Human Rights. A string of rulings have earned the convention a sulphurous reputation in Britain. It has been cited by Strasbourg justices to condemn a blanket British ban on prisoner voting. In British courts, it has been cited by foreign criminals appealing against deportation on the ground that they would thereby be deprived of a “family life” in Britain (as protected by the convention’s Article 8). In a special provocation for the tabloid press, Article 8 is also much-cited by famous folk trying to protect their privacy.

To Conservative backbenchers, the answer is simple. First, scrap the 1998 Human Rights Act, introduced under the previous Labour government, which enshrined the European convention in domestic law. Next, repudiate the convention and, if need be, leave the Council of Europe. Government ministers are warier: repudiating the convention would enrage the Lib Dems, weaken Britain’s voice as a defender of human rights and might clash with Britain’s EU membership. In Strasbourg to mark Britain’s chairmanship, William Hague, the Conservative foreign secretary, said his government was “committed” to the convention, which “reflects many of the basic rights and freedoms that have been found in British law for centuries.”

Conservative ministers are less kindly about the Human Rights Act, which they say they would scrap if not constrained by being in a coalition government. In truth, bashing the act is a distraction. Its main effect is to allow British judges to consider cases based on the convention without bothering Strasbourg. Scrap it, and more British cases would head to the European court. Nor would much change if the government fulfils its ambition to create a British Bill of Rights. Such a bill could not abolish rights found in the European convention (and common law precedent already protects family life and privacy).

Yet British judges are becoming more assertive in the face of Strasbourg activism. Lord Judge, the Lord Chief Justice, recently argued that the Human Rights Act only instructs courts to “take account” of Strasbourg rulings. On November 8th an appointee to the Supreme Court, Jonathan Sumption, accused Strasbourg justices of straying into areas of human life “governed by no compelling moral considerations one way or the other”.

The government has ambitious plans to curb the activities of the Strasbourg court, which is labouring under a backlog of 155,000 cases going back years (including, in a nice irony, lots of Italian complaints about slow Italian justice). Britain wants the court to decline cases if it can be argued that well-run national courts have properly considered their merits. Britain is also proposing a declaration by the Council of Europe’s members on subsidiarity—jargon for saying that Strasbourg justices should leave national authorities more leeway for interpreting rulings. That would, for instance, let countries decide, within reason, which criminals should lose voting rights.

British officials talk of ardent support from the Swiss, French and Dutch, and warm noises from others. The court also favours reform. It feels swamped and would like to concentrate on cases from tough member countries such as Azerbaijan and Russia. The trick will be reforms that do not just embolden toughies. The reward: saving the Strasbourg court and reconciling the British with human rights, currently seen as a scoundrels’ charter. Well worth six months’ hard diplomacy.