For the past twelve months, there has been a growing clamour within the UK government to re-evaluate our relationship with Europe. Most of these issues stem from a deeply held political mistrust of European legislation, no matter how beneficial, worthwhile, or economically motivated that legislature may be, there is a view that if it comes from Brussels, it holds back our economy and is being dictated upon us by undemocratic means. There have been many articles written on the UK right as well as the potential of a Brexit, and rightly so, but there have been few on what could be an even larger issue – the potential UK break-away from the European Court of Human Rights (ECHR).
Formed just over sixty years ago with the UK taking a leading position in its formation, the ECHR has reached over 10 000 judgements to protect citizens from malpractice and state wrongs which otherwise would have never been answered by the respective national courts. One need only glance at the workload and justice the ECHR has brought to the Balkans (post-conflict) as a gleaming example of how it dispels sentences and defends those unable to gain a fair hearing by weak national judiciaries. It has forced Cyprus to act on frequent sex trafficking, created fair treatment for the mentally sick and elderly in Bulgaria, and mandated equal inheritance rights to illegitimate children in France (Source: Guardian) to name just a solitary few. It is important to note that it primarily deals with dysfunction in the rule of law, i.e. a national law which does not adequately protect and extend equality to all citizens. It is not a guilty/not guilty court such as the European Court of Justice (ECJ).
Recently, however, it has been engulfed in a tug-of-war over its reach into national law with the UK. The ECHR has legislated that citizens convicted of a crime and incarcerated in prison are still eligible to vote in national elections – a social right vehemently opposed to by the UK government. The ECHR also blocked the extradition of terrorist sympathisers to the US – and other nations – as a breach of their human rights due to different incarceration laws in place in the extradition countries. Forcing the UK to hold on to these terror subjects against their will, unable to prosecute them as they are accused in separate states, without having been proven guilty of breaching UK law. I am not here to argue whether the UK is right or wrong in these judgements; international extradition is an impossible political situation and the question surrounding voting rights for prisoners does not have a simple answer, both require international cooperation. But I will touch upon the reach of the ECHR and whether they have overstepped their boundaries.
The UK, unlike most European nations, does not have a written constitution from which to draw and refer to. Judges preside over constitutions. In the UK, Parliament has control over primary legislation and this cannot be questioned by judges once made law. It must be added that the second chamber of Parliament, the House of Lords, is comprised of many judges who evaluate the merits and legality before returning it to the House of Commons for ratification. Thus, when the ECHR rules to change UK law, such as with prisoner voting rights, Parliament reacts negatively; legislation is made and controlled by those voted into power, not unelected judges.
The key question here lies in the technical drafting of the original treaties, specifically, what is the scope of the ECHR in binding UK law to its whim? When we look at this, the ECHR has actually overstepped its mark. The Human Rights Act of 1998 (HRA) states:
“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights”
“take into account”, this does not mean adopting the ECHRs rulings. When the HRA was drafted, it was never conceived that UK law would ever be in danger of breaching, falling behind, or close to ignoring a decision by the ECHR. The UK has been a world leader in defending human rights for over a century, and has taken a leading role in the ECHR which now extends to Russian law – which is frequently stating ECHR rulings in domestic cases, a huge step forward in international cooperation and stability.
The President of the ECHR, Judge Dean Spielmann, recently stated it would be a “political disaster” if the UK left the ECHR. We’d lose international credibility, soft power sway, and will set a dangerous precedent which could lead to the collapse of unified human rights accords. In the last few months Ukrainian parliamentarians have balked at the thought of any retrospective ECHR action by claiming it’s a defunct institution now that its founding member, the UK, is walking out the door. These are serious charges and all must be taken into account before a unilateral withdrawal is made. It would also be remiss of me not to associate the clamour of withdrawal and the front page news it has brought to the UK without mentioning the ideological intentions behind most of the furore.
The right wing press consistently misrepresents ECHR rulings, highlighting its backload of cases (which is now on the decrease due to a restructuring of priorities), encroachment on national laws, and power of the unelected judges to implement legislation against the will of the UK citizens. Nor has this misrepresentation been nullified by the Conservative government. To sum up, the word Europe in the UK is politically toxic. The question then is how a diplomatic solution can be found to the wording of the current treaties. The answer is not a simple one, the UK often likes to think of itself as a unique case, it demands special considerations. In this case, its demands are correct. The ECHR has overstepped its mark, but was not wrong to do so, reaching an informed and entirely justifiable decision for social rights equality. Will this lead to the UK leaving? Almost definitely not, historic precedence and the level of soft power available via the ECHR is too great a platform to simply give up so casually. But the question of the treaties does need to be answered; when does international law, overseen by unelected individuals, encroach on national liberties? This is a question for every nation – with huge consequences in the long term.