Brand ‘Britannia’ on the Convention, Mr Cameron

2012 sees the UK at the helm of the European Convention on Human Rights. Time to play tug-boat: patch the hull of the Convention, refloat the listing Court, and steer them back to calmer waters

Choppy at sea: should the UK steer the ECHR to calmer waters or have its own bill?
Peter Smith
On 5 January 2012 09:48

In November, the UK took over as Chair of the Council of Europe. The role of Chair is to lead the Council of Ministers, representing the 47 states - and 800 million people - comprising the Council of Europe. The UK will do this until May 2012.

This is one of Britain’s quieter moments of international leadership in a hectic 2012, but as with the Olympics and Royal Jubilee, it presents opportunities not to be lost by politicians who may be tempted to let their officials and bureaucracies do the heavy lifting. For the Council of Europe is the institutional framework supporting the European Convention on Human Rights and Fundamental Freedoms and its Court in Strasbourg, and it is time the Conservatives again stamped their mark on the human rights’ regime in Europe.

The UK has been in a protracted debate over what to do about human rights. Put simply, some think that although the fundamental freedoms enumerated by the Convention are good things in and of themselves, their interpretation by the Court in Strasbourg (and, as a result of statutory obligation mixing with the culture of judicial precedence, domestic tribunals too) has been wrong.

A raising of the hurdles of necessity and proportion that a state must prove when qualifying rights has been coupled with a shrinking of the margin of discretion that allows variation in implementation, by all public authorities, of Convention freedoms.

As the recent case of Hirst demonstrated, the Court can be almost evenly split on whether Parliamentary restrictions on prisoners are correctly balanced against the right to vote.

Given the staggering size and geographic and cultural diversity of the Convention’s jurisdiction, one popular option is to withdraw from the Convention and install a British Bill of Rights.

But the costs of this option have not been fully thought through. Withdrawal would undoubtedly have political and legal ramifications, yet they have not been completely identified or debated.

In any event, the intellectual architecture of a British Bill has not been fully elucidated.

Although there is basic agreement about the substantive rights, few pointers as to their limits exist for the purposes of legal interpretation, such as a hierarchy to determine clashes between fundamental rights: your right to free expression as a newspaper against my right to private life as a celebrity, for example.

Nor are there clear pointers as to the extent to which rights will be unqualified against Parliamentary sovereignty: although the UK is bound by international conventions regarding the use of torture, what if a popular future government with a large majority decides it is right to waterboard or drug a suspect when the bomb clock is ticking?

So even if we do decide to pull out and go it alone, Britain shouldn’t do it yet. Instead, the Government must drive ahead with practical changes to the operation of the Convention, and, in doing so, remind the world of our unique heritage in balancing personal freedom against state power. As Lord Howard, reminded us recently, that heritage is bound up in Conservative history.

The Government should act radically to speed up the current process of reform set in motion by the Council itself. Mr Cameron, go further than the three key interim proposals from your Commission on a Bill of Rights.

Only allow the most egregious abuses of human rights to be heard by the Court; ensure the vast majority of mundane claims are heard by a sole judge, on paper alone. Given that there are now over 160,000 outstanding appeals lodged with the Court – up from 86,000 in 2006 and 18,000 in 2001 – brutal surgery is needed right now.

Scrap completely any Convention right to damages for infringements on human rights, even in those most egregious cases. Bizarrely, many claims are motivated by the possibility of hard cash, although the sums involved are usually paltry. Even if you are tortured by your own country, it should be for domestic courts to decide the remedy, and, if any, the amount of damages. The Court’s principal role is declaratory, not punitive.

Improve the technical legal knowledge, language competency and judicial experience of the Court’s judges too, and seriously reconsider the position of many judges on the Court.

And oppose institutional membership of the Convention by the European Union. US ‘lawfare’ is complex enough. See, for instance, what happens when the Constitution’s Commerce Clause is argued in battles over social policy – as it will be in the Obamacare appeals the Supreme Court will hear this year. You may as well be looking at the rules of backgammon, as compared to the legal morass of making all EU law and institutions subject to ‘human’ rights.

In all, the Coalition Government can have its cake and eat it. Instead of contemplating withdrawal from the Convention, the UK should lead with some sensible alterations to the agreement.

Change the message on human rights you have broadcast since becoming Leader of the Tories, Mr Cameron: call them ‘evolutionary’ reforms to placate the Liberal Democrats - but push those proposals to the edge.

Draw on the bolder negotiating strategy you developed when flipping Europe the birdie over financial regulation and amendments to the EU Treaty. Seize this opportunity, Mr Cameron, to bring over other nations to our ways of thinking.

Peter Smith was formerly research assistant to Edward Leigh MP and now works as a lawyer in London

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