Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.
Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.
Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.
However, blogger Carl Gardner rightly points out that the Strasbourg court may indeed have overstepped its remit, and therefore despite Bratza’s justifiably robust defence, “the facts do bear out the complaint that the court has sometimes been too interventionist.”
Wherever the blame lies, the debate over human rights law in the UK has become toxic. Senior politicians are terrified to defend human rights decisions, and the press have been steadily ratcheting up their demands over what should be done about human rights gone wrong. The Sun and Telegraph now mooting the possibility of a total or temporary UK withdrawal from the European Convention on Human Rights, an international instrument which was mainly drafted by UK lawyersand to which the UK was amongst the first signatories. As Lord Neuberger, the head of the Court of Appeal said in a speech last year, the terms of the current debate:
may tempt some into thinking that it is hardly worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and to preclude you enjoying freedom of expression.
Returning to Washington for a moment, the human rights debate has begun to resemble one of the ideological red line issues which now dominate US presidential elections. The ongoing Republican Presidential primaries have seen candidates falling over themselves to be the most anti-abortion, anti-universal health insurance (despite the frontrunner, Mitt Romney, having pioneered the policy) and anti-tax rises, at the expense of a sober debate about important issues. As Jeffrey Frank points out this week in the New Yorker, as early as 1959 then-Vice President Nixon saw the danger of such polarisation. He told the California Commonwealth Club:
“I think it would be a great tragedy . . . if we had our two major political parties divide on what we would call a conservative-liberal line.” He continued, “I think one of the attributes of our political system has been that we have avoided generally violent swings in Administrations from one extreme to the other. And the reason we have avoided that is that in both parties there has been room for a broad spectrum of opinion.” Therefore, “when your Administrations come to power, they will represent the whole people rather than just one segment of the people”.
The equivalent danger for these shores should be clear to the Prime Minister as he travels to Strasbourg. Pulling out of the Court or the European Convention because the public are concerned about immigration controls and prisoners voting would be to jettison, unnecessarily, everything which is good about the court and the UK’s role in developing international human rights standards. Bratza names but a few:
Freedom of religion has been established in many previously intolerant countries. Journalists no longer face criminal sanctions when they criticise politicians. Homosexuality has been decriminalised across Europe. The victims of domestic violence and trafficking are increasingly receiving enhanced protection.
In fact, it is unlikely that the Prime Minister will threaten withdrawal from the court or the Convention. He will be wary of being hoodwinked by anti-human rights rhetoric as the Home Secretary was when she repeated a now-famous cat-prevented-deportation tale at the Tory Party Conference. In any case, the UK’s policy was made clear by the Attorney General in his October speech, in which he set out the UK’s reform proposals which it is pushing strongly during its 6 months stewardship of the court. He also said:
There is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention
We need to challenge the myths, some of them ludicrous, that have grown up about human rights, particularly in some sections of the media and which I often get repeated to me by concerned constituents. We need to see our part, as a legal fraternity to be to make sure the law is understood.
So, whatever the dreams of the Eurosceptic press, the Prime Minister is likely to push for reform of the Court without threatening the nuclear option of withdrawal. There will no doubt be some strong rhetoric – probably involving the liberal use of word “sovereignty” – in order to maintain the “battling” image. But when Mr Cameron goes to Strasbourg, he should remember that, to paraphrase Richard Nixon, he represents the whole people rather than just one segment of the people.
Update, 25 January 2012 – The Prime Minister’s full speech has been published here.
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- Is the European Court of Human Rights obsessively interventionist? – Andrew Tickell
- UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually
- Strasbourg: L’enfant terrible
- No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins
- A grown-up speech on human rights reform