Paul Johnson (University of York)
Then there is the question of human rights… We attach great importance to this… [W]e hope that a European Court might be set up, before which cases of the violation of [human] rights in our own body of twelve nations might be brought to the judgment of the civilized world. Such a Court, of course, would have no sanctions and would depend for the enforcement of their judgment on the individual decisions of the States now banded together in this Council of Europe. But these States would have subscribed beforehand to this process, and I have no doubt that the great body of public opinion in all these countries would press for action in accordance with the freely given decision. Winston Churchill, Consultative Assembly of the Council of Europe, 17 August 1949.
In his speech at the first session of the Consultative Assembly (now Parliamentary Assembly) of the Council of Europe in 1949 – an organization comprising just 12 Member States and, as such, much smaller than its current membership of 47 – Winston Churchill advocated that European nations should collectively agree to guarantee a basic set of human rights to all individuals in their jurisdiction and that a European Court be established to supervise this commitment. Churchill saw the protection of human rights as absolutely essential in establishing and preserving what he called ‘the United States of Europe’. And he viewed the Council of Europe, with its aim of achieving a greater unity between European states through the maintenance and further realization of human rights, as a key foundation for ensuring peace and justice in Europe. Most notably, Churchill believed that establishing a European Court that delivered judgments about states that violated their commitment to human rights would be welcome by a ‘great body of public opinion’.
Six decades and seven Conservative Prime Ministers later, the United Kingdom seems poised on the brink of undoing the solemn commitment that it made to human rights in 1950 when it signed the Convention for the Protection of Human Rights and Fundamental Freedoms or, as it is more commonly known, the European Convention on Human Rights (ECHR). In a document that outlines proposals for ‘changing Britain’s human rights law’, the UK Conservative Party has stated that, if elected to govern at the next general election, it will make fundamental changes to the rights available to individuals and the judicial administration of those rights by the courts. At the heart of the proposal document, which includes the pledge to repeal the Human Rights Act 1998, is a commitment to ‘[b]reak the formal link between British courts and the European Court of Human Rights’ and ‘[e]nd the ability of the European Court of Human Rights to force the UK to change the law’. These objectives would be achieved through the enactment of a ‘British Bill of Rights and Responsibilities’ that would, the Conservative Party claim, limit the scope and effect of the ECHR in order to ‘restore common sense’ and ‘tackle the misuse of the rights contained in the Convention’. The proposal falls short of explicitly stating that the UK would withdraw from the ECHR but, with over 40% of British adults surveyed in 2014 in favour of a withdrawal, that explicit commitment may come later.
The Conservative Party’s proposals are mind-boggling, not least because they are based on inaccurate claims about both the ECHR and the European Court of Human Rights (ECtHR). For example, the document states that in 2013 the ECtHR ‘ruled that murderers cannot be sentenced to prison for life, as to do so was contrary to Article 3 of the Convention’. This is factually incorrect. What the ECtHR said was that imprisoning a person for the rest of their life, without a dedicated mechanism for reviewing their sentence, amounted to a violation of Article 3 of the ECHR (which states that ‘No one shall be subjected to […] inhuman or degrading treatment or punishment’). In reaching this conclusion, the ECtHR was very careful to state that offering ‘whole life order’ prisoners a process to review their sentence cannot be ‘understood as giving them the prospect of imminent release’. The essence of the judgment is not, as the Conservative Party suggest, that the UK has violated the ECHR by imprisoning individuals for life but, rather, that a violation of the ECHR arises when an individual is imprisoned for life with no prospect of reducing their sentence. This is hardly an outlandish conclusion. It simply means that no society committed to basic human rights should detain a person perpetually without periodically assessing whether that person has made sufficient progress towards rehabilitation to justify a reduction in sentence.
However, in respect of this and many other points, the Conservative Party’s document misrepresents the ECtHR, its interpretation of the ECHR, and the judgments it has reached. The entire document shows a profound misunderstanding of how the ECtHR works, the effects of its judgments on the domestic law of the UK, and the relationship between the UK courts and the ECtHR. Antonios Tzanakopoulos has written an excellent piece on the various legal mistakes in the proposals and asks whether these are the outcome of incompetence or deception.
In my view, to understand the Conservative Party’s proposals requires understanding the audience to which they are addressed. It requires understanding how a sizeable proportion of Britons have been persuaded to see the ECHR and the ECtHR, and human rights generally, as contemporary problems in need of reform. And this, in turn, requires understanding how through a process of ‘monstering’, as Adam Wagner has astutely described it, the ECtHR has been transformed into a ‘folk devil’ of our time. It is this evolution in British attitudes – from a time in which Churchill (for some, the greatest Briton) could make the high-minded plea to establish a European Court, to a time in which the ECtHR is said to threaten the very fabric of democracy – which underpins the Conservative Party’s proposals.
In thinking about that historical change, the first thing to note is that UK governments have always been sceptical of the ECtHR. Although the UK was the very first European state to ratify the ECHR (in 1951) it was, from the outset, hostile to the creation of the ECtHR. In June 1950, during the drafting of the ECHR, the UK voted (with six other states) against establishing the ECtHR and voted (with two other states) against a compromise solution that meant the ECtHR would be established with optional recognition of its jurisdiction. The UK also expressed a reservation (with two other states) about granting individuals the right to make complaints directly to Strasbourg, on the basis that this ‘might well give rise to abuses, and in particular be used for subversive propaganda’. When the ECHR was concluded, it did contain optional clauses regarding the jurisdiction of the ECtHR and the right of individual petition. The UK, sticking to its sceptical position, exercised its right not to recognize the ECtHR or grant the right of individual petition until 1966 – thirteen years after the ECHR came into force.
Once individuals in the UK had the right to directly petition Strasbourg a steady stream of applications began (although, just as now, the vast majority were deemed inadmissible). The first successful complaint by a UK applicant in the ECtHR did not happen until 1975 and the UK judge sitting in the case, Gerald Fitzmaurice, produced a lengthy separate opinion in which he stated that because the ECHR made ‘heavy inroads on some of the most cherished preserves of governments in the sphere of their domestic jurisdiction’ that this positively demanded ‘a cautious and conservative interpretation’ of the ECHR by the ECtHR. The notion that the ECtHR is neither cautious or conservative, but rather that it uses the ECHR to deprive European states of their power to organize their societies as they wish, has remained a steadfast argument of those who are hostile to Strasbourg. Their key assertion is that the ECtHR continually ‘oversteps’ its role and, through ‘mission creep’ as the Conservative Party’s proposal document puts it, ‘attempts to overrule decisions of our democratically elected Parliament’.
Underpinning the long-standing assertion that the ECtHR is usurping British sovereignty are claims that it is attacking or diminishing national culture. Richard Littlejohn, writing in the Daily Mail in August 2013, echoed the view now held by many people that allowing ‘foreign judges’ to decide on matters relevant to Britain is ‘disturbing’ because it ‘stands the entire principle of British justice on its head’. This claim, which is now repeatedly made, is based on the idea that ‘foreign’ judges in the ECtHR do not understand, care for, or respect the values of Britain and seek to impose their alien values upon British people. It is a claim that is closely allied to the ever-present discourse about the ‘threat’ of immigration and multiculturalism that, it is asserted, dilute and weaken British culture. The criticisms of the ECHR and ECtHR can be seen as an expression of a much wider and enduring form of nationalism premised on arguments about the need to maintain racial and ethnic boundaries. The Conservative Party’s proposals are an exemplar of the belief that people ‘over there’ should not interfere with Britons ‘over here’.
In exploiting and advancing such an argument the Conservative Party is attempting to, in the most general sense, generate a consensus in Britain about ‘British human rights’. They propose that Britain requires a bespoke Bill of Rights that allows Parliament to be sovereign in its enactment of law and the Supreme Court of the UK to be the ultimate authority of its interpretation. Regardless of the legal incoherence of this argument (since Parliament is already sovereign and no mechanism exists – certainly not the ECtHR – that can compel it to change law) it is an inward-looking view of law and human rights. In contrast to the vision of Churchill, and of the ECHR itself, it imagines a legal landscape in which the UK is a self-contained jurisdiction and its laws (the expression of its core moral beliefs and values) are sacrosanct and inviolable. That may be an attractive proposition to those who believe that the contemporary legal landscape of the UK is currently unproblematic or unlikely to become problematic in the future. But if you are one of those who believe that the UK sometimes enacts unjust laws, or that public authorities behave in problematic ways, then losing the scrutiny of an independent body outside of the UK will be very concerning (and perhaps terrifying).
To imagine what it would be like to have no recourse to the ECtHR is easy. Imagine if, in 1972, Anthony Tyrer had no mechanism to complain about how, as a fifteen-year-old boy, he was held down and birched by police officers in an Isle of Man police station. It was only as a result of the judgment by the ECtHR in 1978 that Manx courts first required an alternative punishment to birching, before birching as a punishment was effectively removed from statute. Or imagine if, in 1976 when he petitioned Strasbourg, Jeffrey Dudgeon had no mechanism to complain about the total criminalization in Northern Ireland of male homosexual acts between consenting adults. It was only because of the judgment of the ECtHR in 1981, that Northern Ireland followed the rest of Great Britain in partially decriminalizing male homosexual acts. These are examples of cases in which an inward-looking legal system, which allowed no resource to an external body charged with scrutinizing its compliance with human rights, would have resulted in the perpetuation of criminal laws that most individuals in the UK would now regard as primitive and barbaric. The ECtHR, in essence, helped UK society to evolve.
To regard the ECtHR as a folk devil not only fails to recognize its contribution to advancing UK society, but it is also fails to acknowledge the way in which it allows the UK to play a part in evolving other European nations. Through the UK’s participation in the ECHR it is able to ‘export’ some of its most cherished values to other Member States of the Council of Europe. This is because when the ECtHR assesses a state’s compliance with the ECHR it often looks at the consensus among all European states on particular issues and adjudicates accordingly. Therefore, the UK’s participation in the ECHR system allows its values to influence the legal development of other states for the better. This is what the commitment to achieving the greater unity of European nations through the ‘maintenance and further realization‘ of human rights, as set out in the Preamble of the ECHR, means. Any society that withdraws from that commitment and rejects the scrutiny of its peers is a society that embraces separatism and isolation: the perfect environment in which human wrongs are incubated and left unchecked.
Paul Johnson is Reader in Sociology at the University of York. He has written widely on issue relating to sexuality the law and human rights.