The European Court of Human Rights' corrosive effect on British justice was foreseen years ago – now we must fix it.
By Dominic Raab, 8:39PM GMT 24 Jan 2012
Today, David Cameron will make a speech in Strasbourg calling for “much-needed reform” of the European Court of Human Rights. Yesterday, Sir Nicolas Bratza, the president of the Court, got in first, dismissing criticisms of the institution as displaying the kind of ignorance “more frequently heard in the popular press”. Sir Nicolas effectively denied that there is any proper debate to be had at all. Such blind defence corrodes the currency of human rights.
Few question the list of fundamental freedoms in the European Convention. The problem lies with Strasbourg’s role. This was predicted by the Attlee government in 1950. The Foreign Office feared the court would become a “small paradise” for claims from “communists, crooks and cranks of every type”. The Lord Chancellor, Lord Jowitt, warned: “The real vice of the document… consists in its lack of precision. It completely passes the wit of man to guess what results would be arrived at by a tribunal composed of elected persons who need not even be lawyers.” As a consequence, Attlee signed up to the Convention, but not the Court. It was not until 1966 that Harold Wilson submitted Britain to Strasbourg’s jurisdiction.
The fears were borne out. Far from applying European Convention standards, the Court’s judges labelled the Convention a “living instrument”, and assumed the power to extend human rights into uncharted areas. Courts should interpret the law, but leave elected lawmakers to create it.
The Abu Qatada ruling marked the latest shifting of the goalposts. Although the terrorist suspect had failed three times to have his deportation blocked in British courts, Strasbourg decided that he might not receive a fair trial in Jordan. Putting aside the moral acrobatics of making Britain responsible for other countries’ justice systems, Strasbourg had never before upheld the “unfair trial” defence in regard to deportation. Not only does this undermine British security, it subverts our democracy that the Court is raising human rights standards, rather than simply applying them.
Sir Nicolas also complained that Britain has not complied with a 2005 ruling on prisoner voting. Yet there is no “right to vote” in the European Convention. The negotiating record from the time of its creation shows that UK officials deliberately excluded such a right, because they did not want to enfranchise “peers, felons and lunatics”.
So Strasbourg had invented a novel right. It has since gone further – the Court’s most recent rulings stipulate that the sanction of forfeiting the vote must have some link with a prisoner’s crime. That would result in 99 per cent of prisoners getting the vote. Far from a dispassionate application of the law, this is a naked political agenda to enfranchise all prisoners.
The Prime Minister’s leadership on Strasbourg reform is welcome. First, we need to strengthen quality control over the selection of judges – more than half had no prior judicial experience. Next, Strasbourg should focus on the most serious human rights abuses.
A filtering mechanism would prevent it from attacking the democratic will of Parliament or second-guessing cases that have gone through multiple domestic appeals. After all, what is the point of Britain having a Supreme Court if it doesn’t have the last word on the law of the land? The International Criminal Court offers an alternative model to Strasbourg. The ICC is a court of last resort, which only intervenes if a country’s justice system is unwilling or incapable of properly reviewing a claim.
These reforms will require patient diplomacy and take several years. In the meantime, rulings such as that on Abu Qatada, which create new law, should be subject to free votes in Parliament.
But we can’t blame everything on Europe. We have exacerbated the situation through British law, including the Human Rights Act (HRA). For example, the UK courts led the way in preventing deportation of foreign national criminals when it disrupts their family ties, under Article 8 of the Convention. No other country ties its hands in deporting foreign criminals as Britain does. Convicted drug dealers, robbers, rapists and killers have successfully frustrated deportation orders. In one case, a man who viciously raped his partner claimed the “right to family life” to trump his deportation order.
Not only does this undermine public protection, it also ends up eroding what Dinah Rose, QC, calls “roast beef” rights, steeped in Britain’s tradition of liberty. It was partly because of creeping restrictions on deportation that Labour introduced control orders and proposed ID cards and 90-day pre-charge detention. Seventy per cent of successful appeals by criminals against deportation are now on human rights grounds, with 61 per cent claiming under Article 8. Far from this being tabloid scaremongering, even the president of the Supreme Court admits British courts have gone too far. So what can be done?
The two parties in the Coalition have very different views on human rights, and so there is unlikely to be a consensus on a UK Bill of Rights to replace the HRA. But even within the parameters of the HRA, the Government could still amend the UK Borders Act 2007 to reverse the flow of spurious Article 8 challenges. To be effective, that would require an Act of Parliament, not just a change in regulations or guidance.
The Prime Minister is right to take up the mantle of human rights reform, both at home and abroad. And it means taking on the powerful vested interests in the human rights industry, right up to the president of the Strasbourg Court.
Dominic Raab is the MP for Esher and Walton, and a former international lawyer at the Foreign Office
Comment:
In February 2010 the Interlaken Conference took place and all 47 Member States of the Council of Europe reaffirmed their commitments to abide by the Convention and abide by the Court's judgments. On the agenda was the need to reform the Court, but also on the agenda was the requirement for reforms within some Member States which failed to abide by the Convention and Court decisions. It was agreed that sanctions should be applied to these rogue or pariah Member States to get them to toe the line. The Council of Europe cranked up the pressure upon the UK to deal with a failing State.
For years we were told that British justice is the best in the world. Then along came cases like the Birmingham 6, Guildford 4, Maguire 7 and Stephen Kisko, for example, and it turned out that British injustice was the best in the world! Luckily for victims like me suffering State abuse of our human rights we were and still are able to challenge the State in Strasbourg. The corrosive effect of British justice cannot be allowed to contaminate the higher standard of justice demanded in Europe. Even now the UK is tunneled visioned in relation to reform of the Court, whilst ignoring the reforms much needed in the UK. It means that certain elements in the UK are blind to the fact that their attitudes mean we are at least 60 years behind the rest of Europe in protecting human rights.
The UK signed up to the Convention but appeared to want to cherry pick when it came down to honouring its obligations under international law. As society moves forward so too does the Court and its interpretation of the Convention to meet modern standrds. But, it would appear that the UK is intent on living in the past and keep its memories of British Empire alive. The reality is the UK signed up to the idea of a United States of Europe and became 1/47th of that organisation. This entailed sacrificing to a degree sovereignty. The UK is part of a team and not a lone player. It also requires the UK to play by the rules or get red carded.
It is untrue of Dominic Raab to state that there is no right to vote in the European Convention. Clearly Article 3 of the First Protocol provides for this human right. This is what Hirst v UK (No2), the Prisoners Votes Case, established. The case showed that section 3 of the Representation of the Peoples Act 1983, which barred convicted prisoners from voting, was incompatible with the Convention. Why Dominic Raab persists with this untruth of his is a mystery given that he worked at the Foreign Office when the UK lost the Prisoners Votes Case and then lost its appeal to the Grand Chamber. The decision is final and the UK must amend domestic law to fully comply with Hirst No2. It is nonsense to claim that we did not sign up to free elections, although initially the UK had reservations about those Commonwealth countries where the British Empire still kept subdued. As time passed these countries threw off the yoke and gained independence from colonial Britain.
The Hirst case is clear, as Frodl v Austria illustrates, the Hirst test means that all convicted prisoners have the human right to vote, but this human right is not absolute and the Court stated that it may be restricted in cases of electoral fraud or where somebody has abused public office, for example, expenses fiddling MPs, because there is a direct link between crime and sanction. The Court has not moved the goalposts, rather because the UK has misinterpreted Hirst to suit its own political ends the Court reaffirmed the Hirst test in subsequent cases. As the UK decided to remain a failing State the Court laid down in Greens and MT v UK that the UK must comply and must do so within 6 months.
Strasbourg will resist the UK's attempts to pack the Court with judges who favour the UK's human rights abusing conduct. It will also resist changes to its higher standards to sink to the lower UK level. The UK must raise its standards or be forced to leave Europe altogether. It is no good William Hague claiming that the FCO has put human rights at the forefront of foreign policy, because Europe is pointing the finger and showing that the UK is failing to protect human rights at home. Instead of David Cameron laying down the law in Strasbourg and banging his drum about Sovereignty of Parliament, he will be informed that Sovereignty of Parliament is not recognised under European law because instead the Sovereignty of the People is. Even prisoners are human beings and Cameron has no right to govern as though prisoners are subhuman. All Europe demands from the UK is that human rights, democracy and rule of law prevails. Cameron will get a wake up call that sliding into a dictatorship is not acceptable in a modern Europe.
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