Urban myth mustn't be allowed to undermine the ECHR
Sigrid Rausing
guardian.co.uk, Tuesday 6 December 2011 20.30 GMT
Remember John Hirst? In 1979 he killed his landlady with an axe and soon became Britain's most litigious prisoner. Finding that he couldn't vote, he took a case to the European court of human rights in Strasbourg, and won. The court ruled that the UK's indiscriminate disenfranchisement of prisoners was, indeed, illegal.
The issue proved controversial, to say the least. Jack Straw delayed dealing with it for three years while in government. Last January the former Labour home secretary and the Conservative MP David Davis secured a Commons debate on the subject. Davis, according to the BBC, said: "We've got a crisis here which has been brought about by the court extending its own power, trying to overrule in effect a parliament."
The Conservative MP Dominic Raab agrees. He has presented a case for fundamental reforms of the relationship between parliament and the European court in a recently published paper for the think-tank Civitas (2011). In it, he questions the Strasbourg Court's supremacy over British Parliament. He argues that the Hirst ruling risks triggering a constitutional crisis, because parliament voted against it. He claims that the Strasbourg judges are pursuing a political agenda – the enfranchisement of prisoners – that undermines the rule of law and democratic accountability. He suggests amending the Human Rights Act so that "adverse" Strasbourg rulings can be debated, and voted on, in the Commons: so-called democratic override.
For people in favour of democratic override the Hirst case is a convenient reference. He is guilty of a heinous crime, and few people are interested in prisoners' right to vote. If, as Raab says, non-compliance has no serious consequences, why should we comply? There are two answers to this: about human rights principles, and how we act within the Council of Europe.
Human rights is about principles, and the most important one is this: we are all equal before the law. In practice this can be controversial because there will always be people whose rights we would prefer not to defend. How, then, do we in practice make distinctions? The deportation of foreign-born criminals, for example, is an issue people do care about. Lawyers and judges in deportation cases usually refer to article 8 of the Human Rights Act: "Everyone has the right to respect for his private and family life, his home and his correspondence." A very small minority of foreign-born criminals up for deportation are in fact violent criminals. Judges will want to discriminate between violent individuals and individuals who pose no threat to the community, and in fact they can – because the article is hedged to allow for exactly that. In other words, the law is not at fault, but the interpretation may sometimes not be sufficiently robust.
Interpretation is everything. Even in America, where no one disputes the supremacy of the law, liberals and conservatives argue, increasingly bitterly, over the interpretation of particular amendments. In Britain, by contrast, a debate that should be about the interpretation of the law often ends up questioning our obligation to comply with the law, and the authority of the Strasbourg court. The reason is that human rights law is commonly associated with a European system of thought and law, transplanted on to British common law. The layers of overlapping jurisdictions and bodies of law complicate the landscape, and make it vulnerable to attack. We have, in essence, transformed a number of aspirational principles (the Universal Declaration of Human Rights 1948), to a legally binding instrument (the Human Rights Act 1998), via the European Convention of Human Rights (1952) and the European Court of Human Rights. The Conservatives pledged to repeal the HRA in their election manifesto; the Liberal Democrats are committed to keeping it. As a compromise, a Commission has been appointed to consider whether we need a Bill of Rights for the UK, and, separately, to advise on how to reform the Strasbourg court, which currently has a backlog of over 165,000 cases.
There is no question that the court needs reform. We need to resolve the issue of the backlog of cases, discourage or disqualify trivial claims, and make sure that the judges elected are sufficiently experienced and qualified. It's complicated because of the number of parties concerned, but it can be done.
The need for reform, however, should not be used as evidence that we need to fundamentally transform the relationship between the court and parliament in the UK. The Russian government has long lobbied in the Council of Europe on the issue of democratic override, in their case that the Duma should have supremacy over the Strasbourg court on Russian matters. Given the state of Russia's democracy that is obviously a bad idea. But if we too claim democratic override, on what grounds can we argue it is a bad idea for Russia?
Arguing for democratic override sets a bad example in Europe and, in a context that is all about patient negotiation, hampers the reform process of the court. The recently elected British President of the Strasbourg Court, Sir Nicolas Bratza, has warned of the dangers of British xenophobia in relation to on-going political intervention in the court. He is right to do so. Like health and safety, human rights is becoming entangled in a web of urban myths and populist conservative attacks. An important debate to be had about the efficiency of the Strasbourg court should not be confused with the debate about the relationship between the court and parliament.
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