(A view on the Conservative proposals to withdraw from the European Convention on Human Rights)
The Conservative Party has proposed that we repeal the Human Rights Act, and threatens to withdraw from the European Convention on Human Rights so that we can have a British Bill of Rights.
What it has failed to spot is that the European Convention is so British that their proposal would not make any difference to us.
The European Convention on Human Rights was the brainchild of Winston Churchill. During and after the Second World War he championed a “Council of Europe” to guard against the totalitarian regimes in Germany and the USSR. The Council of Europe (a body which is entirely separate from the European Union) still exists and is the body through which a number of international treaties were negotiated, including the European Convention on Human Rights. Again it was Churchill who proposed a European human rights treaty. The drafting of the convention was led by David Maxwell Fyfe, another Conservative politician who later served as a Conservative Lord Chancellor. Britain was the first country to sign the Convention and the first country to ratify it.
The purpose of the Convention (and of human rights laws in general) was to limit the power of the state over its citizens so that it could not act in an inhumane, arbitrary or unfair way. This principle is one of the oldest principles in British law and can be dated back to the Magna Carta in 1215, through the Bill of Rights in 1689 to the Universal Declaration of Human Rights in 1948. Article 39 of the Magna Carta prohibited the imprisonment of any free man save by the proper process of law – the same protections as are contained in Articles 5 and 6 of the European Convention, the rights to liberty and a fair trial.
The European Convention on Human Rights is as British as the Last Night of the Proms and eating over-boiled sprouts at Christmas. It was conceived by and drafted by Brits, who drew on ancient British legal principles in its drafting. It is impossible to imagine how a British Bill of Rights could be drafted as to be any different from the European Convention. It is an irony that the Conservative Party now wish to wish to withdraw from the European Convention on the basis that it is not British, given that it is a British document brought about by Conservative Politicians.
Critics of the European Convention on Human Rights cite the case of Abu Qatada who challenged his extradition to Jordan for trial on the basis that evidence that would be used against him was obtained by torture. They cite other cases where criminals have challenged their deportation on the basis that they would face torture if they were returned home. They say these are examples of why a British Bill of Rights is needed. In fact, they provide clear examples of why replacing the European Convention with a British Bill of Rights would make no difference. These cases are founded upon the prohibition against torture enshrined under Article 3 of the European Convention. Can one really imagine that a British Bill of Rights would allow for torture?
Advocates for a British Bill of Rights have said that the European Convention has been taken over by Judges at the European Court of Human Rights who are imposing their interpretation of the Convention on the British Legal system.
In fact, the vast, overwhelming majority of decisions interpreting and applying the European Convention are taken by British Judges, sitting in British Courts: the European Court has a rule that the courts of member states must be petitioned before a claimant can petition the European Court. Between 1959 and 2010 97% of the claims brought against the United Kingdom in the European Court of Human Rights were automatically struck out or declared inadmissible.
It is also argued that the European Court is supreme and can overrule British Courts. This is also not true. British Courts do not have to follow the decisions of the European Court. While British Courts are required to take account of the decisions of the European Court, if a British Court feels that an interpretation of the Convention by the European Court is wrong, it is entitled to say so.
Of course there have been some high profile cases where the interpretations of the European Court and the British Courts respectively have been so different that it could not be resolved. Advocates of a British Bill of Rights are all too happy to concentrate on this handful of cases rather than the thousands upon thousands of cases that are resolved in British Courts by British Judges, and the thousands of cases where the European Court has rejected British claims and sent them back to the British Courts. However, even in these cases the European Court cannot force the UK Government to do something that it does not agree with.
David Cameron claimed that it made him physically sick to think that the European Court could require the Government to allow prisoners to vote. I can put any concerns for the Prime Minister’s gastric system to rest: the European Court has made a declaration that it believes that denying prisoners the right to vote is incompatible with the Convention. The British Courts and the UK Government do not agree and that is the end of the matter. The Government will not be forced to give prisoners the right to vote.
There are many examples of scare stories in the media about cases brought using the European Convention, which suggest that the Convention has led to perverse and dangerous rulings. These are also cited as reasons why we need to replace the Convention with a British Bill of Rights. What is not mentioned is that none of these stories refer to the Convention being used successfully. An example is the case of Dennis Nilsen, who was a prisoner who argued that it was a breach of his Human Rights to deny him access to hardcore pornography. This caused outrage in the press regarding abuse of Human Rights claims. However, the European Convention in no way requires prisoners to be given access to pornography. Nilsen was refused permission even to bring his claim on the basis that it was frivolous and doomed to failure. Oddly, this fact didn’t make it into the papers. Nilsen took his claim in the High Court in London and it never went anywhere near the European Court. If the European Convention were replaced with a British Bill of Rights Nilsen would still have been able to bring his hopeless claim to the High Court, and it would no doubt have done exactly the same thing in rejecting it out of hand.
The European Convention on Human Rights is not a means by which European values are imposed on us, rather it is a means by which British values, and the best traditions of British law, are spread across Europe. There are 47 signatories to the European Convention on Human Rights. They include countries such as Russia which has a poor human rights record. The Convention is regularly used as a protection against serious human rights abuses in these countries. If Britain withdraws from the Human Rights Convention that it led the way in drafting and promoting, the value of the Convention for protecting human rights in these countries will undoubtedly be seriously damaged. How can we have any cause to criticise Russia for violating the Convention when we withdraw from it ourselves?
What makes this damage worse is that this is completely unnecessary. We don’t need to draft a British Bill of Rights – Winston Churchill had one drafted in 1950 – and called it the European Convention on Human Rights.