World

European Court of Human Rights Becomes UK Electoral Battleground

ECHR
01/16/15
In the Magazine
Party Aims: If elected for a second term in 2015, the conservative party plans to repeal the UK's Human Rights Act, a law that requires the judiciary to take account of the decisions by the European court of Human Rights in Strasbourg, pictured above. Vincent Kessler/Reuters

The building of the European Court of Human Rights in Strasbourg shimmers in the winter sunshine. Its two asymmetrical steel cylinders and futuristic glass atrium are a beacon of hope for those in Europe who feel their human rights have been violated – but many miles away in London’s Downing Street the building represents something different altogether.

With a general election looming in May, the ECHR is at the centre of an ongoing political struggle over the future of Europe. “This is the country that wrote Magna Carta,” Prime Minister David Cameron blustered to a watching Conservative party conference in October. “Let me put it very clearly: We do not require instruction from judges in Strasbourg on this issue.” A document titled, “Protecting Human Rights in the United Kingdom” appeared a few days later. What it detailed was, its many critics said, a plan to do exactly the opposite. If elected, the Conservatives say they will repeal the UK’s Human Rights Act 1998, which requires the judiciary to “take account” of decisions of the European Court of Human Rights and to interpret legislation in a way which is compatible with the the European Convention on Human Rights.

A new “British Bill of Rights and Responsibilities” would take its place and judgments in he Strasbourg court will cease to be binding. “As they stand the [British] proposals are not consistent with the ECHR,” stated a terse three-line press release from the court’s mother institution, the Council of Europe. Consequently, the UK would have to withdraw from the Convention and the whole European system of human rights protections, joining Belarus, the only country in Europe currently on the outside.

The opposition Labour party’s Shadow Justice Secretary, Sadiq Khan, has called this “weakening people’s rights here, and undermining our standards abroad.” In an article last month, he wrote: “Our moral authority to press other countries on their human rights record – a cornerstone of our foreign policy – would be chopped off at the knees.” More worryingly for Cameron, he has taken criticism from leading lights within his own party. “Bewildering” was the word used by former Justice Secretary Kenneth Clarke. “Puerile,” said former Attorney General Dominic Grieve. These prominent lawyers were relieved of their cabinet duties before the plans were announced. Opponents suggest this timing was not coincidental.

Justice Secretary Chris Grayling, a non-lawyer, is the man Cameron has now placed at the front of the anti-Strasbourg charge. He paints it as an essential battle for UK sovereignty and says the current role of the Strasbourg court was never envisaged in the original Convention. “The Convention has, de facto in the last 30 years, acquired all the characteristics of a constitution of the United Kingdom,” he says. “Go to the United States and ask, ‘Would you allow an international court to take over responsibility for your constitution, and to remove from Congress any ability to do anything about that?’ They’d say, ‘No’. Of course they would.”

But, Cameron’s critics say, the extent of Strasbourg interference has often been exaggerated. The court’s head of legal division for UK cases, Clare Ovey, says some members of her team will no longer be working on UK cases next year because “there’s just not enough for us to do”. By November 2014, only eight UK cases had satisfied their strict admissibility criteria and made it to a hearing. Ovey describes an increasingly compliant UK that, aside from a few spikes on specific issues, enjoys falling case numbers each year. From 1998 to the end of October 2014, 15,722 UK applications have been struck out – 97.5% of all applications. Only 246 cases have found a violation against the UK. In the past month alone, the Court has held in favour of the UK government on important cases concerning the fair trial rights of the failed London suicide bombers, and the UK Supreme Court’s interpretation of the hearsay rule.

According to Professor Philip Leach, Director of the European Human Rights Advocacy Centre, which works on cases across the former Soviet bloc, it’s the negative repercussions for the rest of Europe that the Conservatives should be considering. “The proposals are legally bonkers, whether or not you think they make sense politically. The idea that the court judgments become merely advisory, is bonkers squared. It would just rip the system apart.” He shakes his head at a situation where he claims the court gets more respect in Ukraine and Russia than in some quarters of the UK. “The court is not a perfect institution, of course it’s not, but the problems that are there do not require in any way at all for us to withdraw from the Convention. It’s pure politics, coming from fear of the right wing media and Ukip.”

It matters for the people Leach represents. “It’s hard enough as it is,’’ he says. ‘‘You only get some measure of accountability in this system because there is this hard edge to the court judgments. If you take that away, you can wave goodbye to any sense of accountability.” Grayling dismisses these concerns. “The United Kingdom is today a part of the system, Ukraine and Russia are both part of the system. It’s not obvious to me that this has prevented the very worrying situation on the border between Ukraine and Russia.”

The facets of the court system that infuriate critics – an individual can apply, parliaments have no over-ride, judgments are binding, the Convention is a living instrument – are precisely those elements cited as vital by human rights advocates operating in countries where violations are more frequent and serious.

Kirill Koroteev, a Russian human rights lawyer, works for an organisation now listed as a “foreign agent” by the Putin government as part of a crackdown on human rights defenders in the country. He describes a Russian judicial system where achieving a judgment against the state is almost impossible. In this context, the Strasbourg court is absolutely vital. “First you go to Strasbourg and get a judgment, then you have a chance back in Russia,” says Koroteev.

Koroteev represents the families of those 334 killed in the Beslan school massacre in north Ossetia in 2004, as they try to hold the Russian government responsible for its involvement. They recently said of the UK plans: “It would be an excuse for our government to say, ‘We don’t want it either!’. . . The UK has to understand; we all in live in the same world and we all have an impact on one another. The UK must not think only of itself, because this will lead to other countries completely disregarding the rule of law.”

Asking Grayling if he himself has ever had his rights violated produces an awkward silence. “As a UK citizen, not that I can think of,’’ he says. ‘‘We are, in this society, a beacon of good human rights practice in the world.” So there’s never been a situation where you have been concerned about that? He smiles. “No.”