Today marks 60 years since the European Convention on Human Rights came into force. The UK government’s relationship with the Convention and its Court in Strasbourg has always been fraught – now so more than ever before. There is a certain irony to this, since Britain was a founding member of the post-WWII body responsible for the Convention, the Council of Europe, and was the first state to ratify the Convention in 1951. Indeed many of the rights in the Convention are indebted to English common law. There are 47 state signatories to the Convention, affording rights protection to more than 800 million people.
But UK governments’ resistance to human rights obligations soon began to tell. The UK only accepted a radical aspect of the Convention – the right of individual petition (Article 25) – in 1966. This is a radical notion because it gives petitionary powers to individual citizens to challenge their sovereign state’s laws and court decisions before an international body with binding powers to overturn decisions and insist on changes to laws themselves. Labour’s 1998 Human Rights Act (HRA) made the Convention directly enforceable in UK courts.
Under David Cameron, the existing, fragile balance between UK sovereignty and the European Convention and Court has tipped into outright hostility and vilification. Spurred most recently by an entirely foreseeable judgement blocking Abu Qatada’s deportation, the Conservative government has given considerable rhetorical effort to presenting the Court as a European intrusion into native British justice.
By courting media resentment to European Union policy, and despite the fact the Convention and the Court have nothing to do with the EU, Conservatives have managed to forge a deceptive image of the Court as unaccountable and intrusive. In fact the Court’s rulings have always been a negotiation of legal principle and political pragmatism – not least because its powers are only voluntarily accepted by states, which may withdraw after six months’ notice. The Court has the unenviable task of balancing individual rights against the rights of the sovereign member states to regulate their own affairs. For these reasons the evolution of rights is always subject to considerable political pressure and a self-imposed conservatism. But in cases concerning violations of fundamental rights the Court has (crucially) upheld the rights of the individual.
Under the principle of parliamentary supremacy (which dictates that only parliament can make and repeal legislation) UK courts cannot invalidate legislation that is in violation of the Convention. Indeed UK courts have sometimes felt constitutionally unable to challenge the government’s policies. There is no such limitation on the Strasbourg Court and accordingly it has played a crucial role in upholding minority rights.
Strasbourg Court judgements concerning the UK have curbed stop-and-search powers, overturned legislation criminalising gay couples, and upheld safeguards protecting children and vulnerable adults. In the case of Al-Skeini, the Court held that UK courts had failed to apply rights protection to Iraqi civilians who fell under their jurisdiction. The Court made an unflinching decision, ruling against the UK government (and against the decision of the House of Lords), stating that the UK was responsible for deaths caused in security operations in Basra. The Court has also stood up to the illegal excesses of “national security” government action, ruling (in the case of McCann) that SAS soldiers were too quick to use lethal force when they shot dead Irish men suspected of planting a car bomb in Gibraltar, who turned out to be unarmed.
The Conservative Party has made well known its outright antipathy to the UK Human Rights Act and the Convention, indicating that they would repeal the former and consider withdrawing from the latter if they were to win an overall majority at the next election. When the Conservative government speaks of “British justice” to replace the Convention, it tends to underplay the fact that the human rights protections enshrined in the Convention and the UN Convention against Torture (among other UK-signed treaties) are, far from being “foreign” instruments, unequivocally foundational to English common law. The Conservatives are in fact attacking the basic rights of us all, including the global prohibition against torture.
It is uncertain how serious a diplomatic crisis would ensue if a majority Conservative government chooses to withdraw from the Court (which would also mean withdrawing from the Convention and the Council of Europe). Since the EU itself is about to become a multi-state party to the Convention – requiring all EU law to be fully compatible with the Convention – it is difficult to see how the UK can withdraw from the Convention but not from the EU in turn.
This is not to say that the Strasbourg Court’s decisions are faultless. The Court’s failure in 2012 to block the extradition of Talha Ahsan to solitary confinement in America, despite his having Asperger Syndrome, was a breakdown in the global protection against ill treatment. Rightly but inconsistently, the Court would (in the 2013 case of Aswat) protect a mental health patient from extradition to the US.
Some reform of the Strasbourg court is needed. It is over-capacity with a backlog of over 100,000 pending applications. But this is perhaps evidence, not of its failure, but its uniqueness – the Court provides a last resort for those with no other recourse or hope.
The Convention itself has limitations: it protects only civil and political rights, excluding social and economic rights which at this time of austerity many in Europe would feel are as important to their wellbeing. We can choose to defend the Convention today in the knowledge that the government is attempting to forestall our basic rights. If today we do choose the Convention over the excesses of executive power, we might also pledge (and celebrate our ability) to radically restructure our concepts of “rights” in order to attempt to bring dignity and justice to all.
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