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: firstname.lastname@example.org