FacebookTwitterGoogle+RedditEmail

Britain and the European Court of Human Rights

by BINOY KAMPMARK

The cart of legal sobriety is truly getting away when parliamentarians start seeking exemptions from laws in the name of upholding them. The European Court of Human Rights in Strasbourg has been the solemn target for many a British politician since it came into being. It is the symbol of so much that is loathed about the European model of governance, if only for the vital fact that it reminds Britain of a higher legal order, one that places its judicial rulings under a European microscope. The moment the House of Lords ceased to be the final forum of legal judgment, the Tories became heated.

To that end, the Cameron government has been making noises that Britain may, in time, withdraw from the ECHR system. In September, Prime Minister David Cameron suggested that withdrawal might have to take place to facilitate the extradition of foreign criminals and terrorists. By implication, Cameron was suggesting that the ECHR was a sponsor, at least in part, of criminal and terrorist welfare. “Whatever that takes, we must deliver that outcome [of leaving the system]” (Telegraph, Sep 29). In place of the Human Rights Act that is the mechanism allowing ECHR jurisdiction, some of the Tories have suggested a British Bill of Rights.

A few of the most vociferous critics have been Home Secretary Theresa May and the Justice Secretary, Chris Grayling. As is the nature of the business, those who advocate rights are often the first to demand their necessary abridgement. According to Grayling, he is finalising proposals to restrict the power of the court after 2015 to affirm the finality of rulings by British courts. “I think that what we’ve got to is a situation where the European court of human rights has lost its legitimacy in the UK by doing things that frankly, the people of this country are their elected representatives do not want” (Guardian, Dec 30).

British judges, at least some of them, feel that the creepers from Strasbourg have become a touch to asphyxiating. Former Lord Chief Justice Lord Judge feels that too much power has accumulated in the European body. “This is a court which is not answerable to anybody” (BBC News, Dec 28).

Judge Dean Spielmann, president of the European Court of Human Rights, has countered with the suggestion that the refusal of Britain to adhere to European human rights law would see it move out of the European Union’s orbit. Exiting one means exiting all. “I can hardly see how a member o the European Union could withdraw from the Council of Europe. I see a problem there.”

For Lord Judge, the message is an organising diktat, a directive to boss Britain and other states into legal submission. “His view [that of Judge Spielmann] means that the court in Europe is entitled to tell every country in Europe how it should organise itself” (BBC News, Dec 28).

It would be wrong to suggest that Lord Judge has no basis to be concerned. His opposition is not ill-tempered. He himself, unlike some of the political figures of the Cameron government, is not an opponent of the European Convention on Human Rights. But he does a conceptual problem with what the court does.

The problem, as ever, is how far judges feel they can meddle in matters of social legislation. The great fiction, and one that judges of the common law tradition claim with almost dogmatic certainty, is that law is never made, nor should it be ever made, by judicial officers. Best leave that to the grubby wisdom of elected officials. Hence the problem of sovereignty. “It’s not a UK problem, the sovereignty issue affects every single country in Europe.” The fanciful notion in Britain, which has assumed the form of legal totemism, is that of the unwritten constitution and the omniscient judge. Such fanciful notions have not travelled well on the continent.

The Cameronians are hardly concerned with the legal niceties of Lord Judge. They see votes in this, and stirring the Anglophonic beast against Strasbourg is something they hope to do with electoral dividends. Cameron and company are hoping that the Liberal Democrats, with whom they have been in a tense coalition, will be reduced to a rump in the next elections, withering in the centre of a political no-man’s land. With an unshackled conservative government, Cameron promises to “chuck out of our country people who have no right to be here, who threaten our country.”

The ECHR is certainly on to what it sees as poisonous messages being spread in Britain as to what it does, or does not do. In October, a statement issued by the registrar of the court and emailed to reporters claimed that the court was “concerned about the frequent misrepresentation of its activities in Britain” (Guardian, Oct 14). Particular attention was given to a rather glaring report in that paragon of British press virtue, The Daily Mail.

One case of discrepancy was the failure on the part of The Daily Mail to understand the difference between costs, damages and compensation. The paper alleged in October that 202 criminals had received “tax-payer funded payouts of £4.4m – an average of £22,000 a head.” Not only was the distinction missed in such cases as that of Douglas Vinter, who received costs, not compensation, but amounts. According to the registrar, some £1.7m in terms of compensation had been paid, rather than the much higher fee alleged by the paper.

The corollary of that is that other countries will beam with satisfaction that Britain, a country happy to dabble in the discourse of human rights but sometimes shabby about upholding it, is losing its legal nerve. According to Labour MP Sadiq Khan, this is already happening. Ukraine has jumped at the opportunity. If Britain can sneer at human rights, so can we.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

February 08, 2016
Paul Craig Roberts – Michael Hudson
Privatization: the Atlanticist Tactic to Attack Russia
Mumia Abu-Jamal
Water War Against the Poor: Flint and the Crimes of Capital
John V. Walsh
Did Hillary’s Machine Rig Iowa? The Highly Improbable Iowa Coin Tosses
Vincent Emanuele
The Curse and Failure of Identity Politics
Eliza A. Webb
Hillary Clinton’s Populist Charade
Uri Avnery
Optimism of the Will
Roy Eidelson Trudy Bond, Stephen Soldz, Steven Reisner, Jean Maria Arrigo, Brad Olson, and Bryant Welch
Preserve Do-No-Harm for Military Psychologists: Coalition Responds to Department of Defense Letter to the APA
Patrick Cockburn
Oil Prices and ISIS Ruin Kurdish Dreams of Riches
Binoy Kampmark
Julian Assange, the UN and Meanings of Arbitrary Detention
Shamus Cooke
The Labor Movement’s Pearl Harbor Moment
W. T. Whitney
Cuba, War and Ana Belen Montes
Jim Goodman
Congress Must Kill the Trans Pacific Partnership
Peter White
Meeting John Ross
Colin Todhunter
Organic Agriculture, Capitalism and the Parallel World of the Pro-GMO Evangelist
Ralph Nader
They’re Just Not Answering!
Cesar Chelala
Beware of the Harm on Eyes Digital Devices Can Cause
Weekend Edition
February 5-7, 2016
Jeffrey St. Clair
When Chivalry Fails: St. Bernard and the Machine
Leonard Peltier
My 40 Years in Prison
John Pilger
Freeing Julian Assange: the Final Chapter
Garry Leech
Terrifying Ted and His Ultra-Conservative Vision for America
Andrew Levine
Smash Clintonism: Why Democrats, Not Republicans, are the Problem
William Blum
Is Bernie Sanders a “Socialist”?
Daniel Raventós - Julie Wark
We Can’t Afford These Billionaires
Enrique C. Ochoa
Super Bowl 50: American Inequality on Display
Jonathan Cook
The Liberal Hounding of Julian Assange: From Alex Gibney to The Guardian
George Wuerthner
How the Bundy Gang Won
Mike Whitney
Peace Talks “Paused” After Putin’s Triumph in Aleppo 
Ted Rall
Hillary Clinton: the Good, the Bad and the Ugly
Gary Leupp
Is a “Socialist” Really Unelectable? The Potential Significance of the Sanders Campaign
Vijay Prashad
The Fault Line of Race in America
Eoin Higgins
Please Clap: the Jeb Bush Campaign Pre-Mortem
Joseph Mangano – Janette D. Sherman
The Invisible Epidemic: Radiation and Rising Rates of Thyroid Cancer
Andre Vltchek
Europe is Built on Corpses and Plunder
Jack Smith
Obama Readies to Fight in Libya, Again
Robert Fantina
As Goes Iowa, So Goes the Nation?
Dean Baker
Market Turmoil, the Fed and the Presidential Election
John Grant
Israel Moves to Check Its Artists
John Wight
Who Was Cecil Rhodes?
David Macaray
Will There Ever Be Anyone Better Than Bernie Sanders?
Christopher Brauchli
Suffer Little Children: From Brazil to Flint
JP Sottile
Did Fox News Help the GOP Establishment Get Its Groove Back?
Binoy Kampmark
Legalizing Cruelties: the Australian High Court and Indefinite Offshore Detention
John Feffer
Wrestling With Iran
Rob Prince – Ibrahim Kazerooni
Syria Again
Louisa Willcox
Park Service Finally Stands Up for Grizzlies and Us
FacebookTwitterGoogle+RedditEmail