Monday, 6 February 2012
It was a watershed moment when prime minister David Cameron controversially vetoed a European Union economic treaty in December. For the first time since joining the European community in 1973, Britain would not be a signatory of an important pact between nations. Lauded by some of his Tory peers for showing “bulldog spirit” – though criticised by others for isolating the UK – Cameron has now embarked on a new crusade to pull powers back from an overseas institution. This time his target is the European Court of Human Rights (ECHR).
There has long been unease within the Conservative party about the ECHR’s role. Established in 1959 and based in Strasbourg, France, the court aims to protect the civil and political rights of around 800 million people in 47 countries. It considers cases brought by individuals, organisations and states bound by the European Convention on Human Rights, a treaty that the UK and other European countries spearheaded after the Second World War in an attempt to prevent the reoccurrence of atrocities committed by the Nazis.
While the court is separate from the EU – overseen instead by the distinct Council of Europe – it has been subject to similar criticism. In particular, it has been accused of attempting to exert more and more power over member nations by overturning domestic judgements in cases where it should not have the right to intervene. In Britain, such criticism has heightened in recent years following a string of divisive rulings against the government on, for instance, prisoners’ right to vote and the police’s national DNA database.
Last month, speaking before the council in Strasbourg, Cameron made clear his desire to curtail the court’s powers. Comparing it to a “small claims court,” he warned that by making controversial rulings and taking on “trivial” cases, it was having a “corrosive effect on people’s support for human rights” and proposed that most final decisions should be made nationally. Because the ECHR is dealing with a huge backlog of cases – 151,000 at the end of 2011 – he argued it should only take on cases involving the most flagrant abuses of human rights or else risk failing to prevent serious violations because they end up “stuck in the queue.”
But human rights campaigners disagreed with the prime minister’s comments, and have expressed serious reservations about any proposals to scale back the ECHR’s powers.
“Comparing the Strasbourg court to a small claims court damages our public commitment to the international rule of law,” says Angela Patrick, human rights policy director for campaign group Justice. “Our concern is that what’s really coming out of the messages from central government is that they’re looking to set up a twin-track procedure, where they want to encourage the court to look at Russia and Turkey, and back off of states like the UK.
“We don’t really see how that is going to work in practice. These standards that are in the European Convention on Human Rights are meant to be universal. They were set up after the Second World War to reflect the real core of rights that you or I would expect to enjoy whether we’re in the UK, or Belgrade, or Italy. That universality is something we can’t see would continue to have credibility across Europe if what we’re really talking about is an Us and Them approach to rights.”
According to Justice, the high number of claims being made to the court shows that not enough is being done within member nations to address human rights issues – the court itself in a sense becoming a victim of its own success. The organisation points out that of all the 151,000 cases pending in the court at the end of 2011, over half were from four states with particularly bad human rights records – Russia, Turkey, Italy and Romania – with around 2.4 per cent (3,650) from the UK.
Some of the criticisms levelled at the ECHR, specifically around the scale of the case backlog, have already been taken on board. New reforms, agreed during conferences in 2010 and 2011 that led to what became known as the Interlaken and Izmir declarations, are attempting to reduce the number of applicants via a series of measures, such as through the proposed introduction of application fees. Key elements of the changes, however, face opposition from a broad range of organisations including Amnesty International and the International Commission of Jurists who say they could inhibit equal access to the court.
On the opposite side of the fence is right-leaning London think tank the Policy Exchange, which believes that the Interlaken and Izmir declarations do not go far enough. In February 2011 Policy Exchange published Bringing Rights Back Home, a report on European human rights law that influenced the position of those in government calling for a reduction in the ECHR’s ability to overrule British court rulings. The report called in to question the competency of some of the judges serving in the ECHR, and suggested that the UK should withdraw from its jurisdiction completely if attempts to negotiate substantial reforms fail.
“We are critical of the way in which the European court has grown in influence and has shown a lack of deference to our own supreme court on controversial human rights cases,” says Blair Gibbs, head of crime and justice at Policy Exchange. “We are very sceptical about the notion that the Strasbourg court alone decides what constitutes a breach of human rights and indeed what issues are human rights.
“We think it’s really important that we have a mature debate about how public opinion and parliamentary democracy can be compatible with judgements from an international court that go against laws debated and decided upon in individual countries.”
As the government steps back from Europe over the economic crisis, it now appears ever more likely that it will do the same on other issues – including human rights. Last year, the coalition initiated a commission that is looking into introducing a UK Bill of Rights, which it says will protect and extend liberties in Britain under the principles of the European Convention. But strong fears remain about the implications of what some see as a gradual move to pull out of the Strasbourg court altogether.
"Human rights, the rule of law and justice seem to be slipping down the political agenda in the current economic climate,” said Nicolas Bratza, president of the ECHR, in January. “It is in times like these that we must remember that human rights are not a luxury and that the burden of their protection must be a shared one. We must continue to ensure that the court remains strong, independent and courageous in its defence of the European Convention on Human Rights."
The European Convention on Human Rights was brought into force in 1953. Signed by 47 nations, it is upheld by the European Court of Human Rights, and features 18 key articles designed to protect civil and political liberties. It includes a prohibition against torture and slavery; enshrines the right to privacy and freedom of expression; and protects citizens’ right to a fair trial.
2005: Prisoner John Hirst brings a case against the UK to the High Court for preventing him from voting while incarcerated serving a manslaughter sentence. Unsuccessful, he lodges an appeal with the European Court of Human Rights (ECHR), which makes a landmark ruling in his favour, asserting that a blanket ban on British prisoners exercising the right to vote is contrary to the European Convention on Human Rights. The judgement sparks huge controversy and is resisted fiercely by many British politicians, who have to this day refused to comply with the ruling despite threats of a fine.
2008: Judges in the ECHR rule that the blanket and indiscriminate retention of DNA profiles and fingerprints of people arrested but never convicted of an offence is an unlawful breach of their rights. It is later revealed that the Association of Chief Police officers advised chief constables across England and Wales to ignore the ruling and continue adding the DNA of innocent people to the database.
2010: The ECHR rules that police use of counter-terrorism legislation to stop and search people without suspicion is unlawful. The significant judgement, brought by Kevin Gillan and Pennie Quinton, a journalist, finds that the powers were "neither sufficiently circumscribed, nor subject to adequate legal safeguards against abuse."
2011: Abu Quatada, a radical Muslim cleric allegedly linked to al-Qaida, wins a case in the EHCR preventing him from being deported from the UK to Jordan to face terrorism charges. He successfully argues that evidence against him was obtained through torture and that he himself would face torture if he was to return. The Court found that torture was widespread in Jordan, as was the use of torture evidence by the Jordanian courts. Prime minister David Cameron later criticises the verdict, saying: “the problem today is that you can end up with someone who has no right to live in your country, who you are convinced – and have good reason to be convinced – means to do your country harm. And yet there are circumstances in which you cannot try them, you cannot detain them and you cannot deport them.”
Critics of the European Court of Human Rights say they would like to see the system reformed, with more power given to UK courts to exercise ultimate authority over most cases.
In a speech in January, prime minister David Cameron made this argument by claiming that the ECHR was at risk of turning into a court of ‘fourth instance’, which “gives an extra bite of the cherry to anyone who is dissatisfied with a domestic ruling, even where that judgement is reasonable, well-founded, and in line with the Convention [on Human Rights].”
Others have attacked the standard of the court’s judges, raising questions about their level of competence while demanding that new rules are put in place to improve the standard.
However, Angela Patrick, human rights policy director for campaign group Justice, disagrees. She says: “If you’re talking about trying to improve judges, you don’t do it by trying to dismantle the system or by attacking the system wholesale. Criticism of ‘activist judges’ or ‘incompetent judges’ is not made out at all.”
This article first appeared in issue no.913 of The Big Issue in the North.