Will stoking Euro anger help human rights?

19 April 2011 by

There is a scene in the film Milk in which Harvey Milk, a gay rights leader and politician, counsels his young protegé Cleve Jones on how to rally an angry crowd. Cleve has been reading a convoluted speech to little effect, when Milk steps in to show him how it’s done.”Lose the note cards next time”, he tells Cleve, “your job is to say into that bullhorn what they’re all feeling”.

Geoffrey Robertson QC has taken Harvey Milk’s advice in a recent article in the Daily Mail in support of a British Bill of Rights. We can be angry about European human rights judges and the European Convention, says Robertson, because “human rights can be delivered without Europe infringing the sovereignty of the British Parliament” through a British Bill of Rights. He feels the pain of the Euro-sceptic case.

The article, in a way, represents a wide-ranging defence of human rights, but as essentially “British” rights which can, via a Bill of Rights, be dislodged from their somewhat unsavoury European roots. Tony Blair’s government, Robertson argues, lazily adopted the European Convention on Human Rights “off the peg” whereas it should have custom-built a British version.

Robertson criticises the Convention, which he says was a “wonder for its time, but that time was the 1950s”. It fails to mention the rights of children or the disabled, health, welfare, the right to a healthy environment or the right to trial by jury. Moreover, its pre-amble, which refers to a common heritage of political traditions is “Euro-centric, Euro-prosaic, and Euro-dishonest” as it ignores the fact that many of those political traditions include fascism and Nazism.

His real ire is reserved for the European Court of Human Rights, which gives “bad” judgments, some of which are “poorly argued, incoherent, even intellectually devious.” He gives the example of the invention of a right to reputation and the its definition of privacy which is “little better than psycho-babble” and which has encouraged our judges to grant “super” and “hyper” injunctions (which, it should be mentioned, themselves may have been hyped up).

A British Bill of Rights, Robertson concludes, could cure all of these problems. It would be a “powerful symbol” of British identity and our longstanding tradition of liberty, and would ensure that the European court “let most of our decisions stand” under the margin of appreciation doctrine.

Robertson’s may genuinely believe that the deficiencies in the European Convention as well as the Strasbourg court are good enough reason, in themselves, to set up our own uniquely British shop. He may be right; Lord Hoffmann, amongst others, agrees that he Strasbourg court is not up to scratch.

However, the article may also represent a clever but potentially dangerous tactic of playing to the Daily Mail crowd. In Harvey Milk’s words, telling them what they are feeling, but without considering the effect.

One problem with attacking judges for making bad decisions in human rights law is that it becomes a legitimate means of attacking a decision itself. Many members of the public have little understanding as to the difference between a domestic human rights decision and a European one, and tend to attack both as “European” decisions made by unelected judges.

Many will see Robertson’s article as authorising this approach, and this may have unintended consequences. What happens when, following the creation of a British Bill of Rights, a journalist asks why we are still relying on European case law at all? She could quote Robertson as authority for scrapping it altogether. We would be left in the absurd situation of trying to erase any traces of “European” law when that law was, as Robertson rightly says, greatly influenced by our own legal system and our own lawyers.

Another problem is his attack on the European Convention. Whilst the Convention has just turned 60, it is a living instrument and has, in the tradition of the common law, developed to fit the dynamic social realities of European states in the intervening decades. To say it is not fit for purpose because it is 60 years old is a caricature, and accepting that argument will lead some to advocate ditching both the Convention and the enormous and sophisticated body of case law which surrounds it. That is not to say it is perfect, but it is notable that the main opposition to human rights is not in the areas which Robertson identifies, but rather in relation to unpopular members of society such as prisoners and asylum seekers. A bill of rights is unlikely to satisfy critics of the Convention.

As to whether ex-fascist European states have a right to put themselves in the same category as Britain, which apparently invented human rights, this again is problematic and playing up to anti-French and German voices. After all, Britain has had dark moments in its own history: the Star Chamber, pogroms, and more recently the treatment of its colonial subjects in Kenya spring to mind.

More importantly still, it is odd to argue for universal human rights in the language of national exceptionalism. Surely human rights are about recognising basic principles which apply equally across nations, not cherry-picking aspects of our national history which we would like to teach in schools. Robertson misses the point about the United States’ famous Bill of Rights. It is central to American identity not because it is uniquely American, but because it has been used by so many citizens in a land of immigrants to ensure their basic civil rights. To that end, it could be transplanted to any other country with little variation.

Finally, Robertson’s suggestion that adopting a British Bill of Rights would somehow convince European judges to leave us alone is somewhat fanciful. The new Bill of Rights commission has been ordered to leave the Convention in place, so we would still be under the ambit of the European Court in Strasbourg. Saying we have our own Bill of Rights would not protect our government from another debacle along similar lines to the prisoner voting case.

Robertson’s tactic of telling Daily Mail readers what they are feeling follows the Harvey Milk play book, and may even bring some sceptics on board. However, whilst stoking more anger against European judges and European states may score a short-term victory for a bill of rights, it may also do damage to our system of human rights law in the long term. In the end, Cleve’s more considered approach may be less rousing but ultimately more effective than Milk’s and Robertson’s bullhorn empathy.

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  1. John Hirst says:

    Julien: I like this “the fact is that, in terms of Human Rights, the whole concept of sovereignty is absolutely incompatible with the idea of protecting Human Rights. Indeed, as the main threat of these rights is actually the State, how can their protection and enforcement be satisfied under a jurisdiction which is nothing else than an emanation of that State?”.

    Today Civitas has published Dominic Raab’s Strasbourg in the Dock. Apart from it being out of date eg referring to Greens and MT v UK being referred to the Grand Chamber (it was rejected last week), there is the issue of a guilty State in the dock accusing the Court of being in the wrong.

    The Daily Mail refers to Dominic Raab as being an expert in international law. I question this. If he was so good at it why leave it to become a MP? It is one thing to get a degree in law and quite another to be competent in practice. Rather than meet the expectation that he is a rising Tory star, all I have seen to date is a falling star.

  2. Julien says:

    I agree with the position but I think that it is missing a key argument. The post does not say anything in support of the European Court. But I think that one of the key factor of success of the ECHR system is the fact that its highest jurisdiction does not belong to any State.

    Geoffrey Robertson QC develops his criticism against the Court and his desire to “bring the rights home” by creating a new common law system of Human Rights.

    What is his first motive? It is obviously to remove the UK from the scope of intervention of Strasbourg. To support this position he uses what you have called the “Harvey Milk technique” (which is a very nice way to describe what is more often designed by the word demagogy) and surfs on this right-wing wave of sovereignty. But the fact is that, in terms of Human Rights, the whole concept of sovereignty is absolutely incompatible with the idea of protecting Human Rights. Indeed, as the main threat of these rights is actually the State, how can their protection and enforcement be satisfied under a jurisdiction which is nothing else than an emanation of that State?

    The whole idea of Human Rights, and more broadly of modern Public Law, is based on this view that States have gone way too far during the 20th century against individuals (a fact that is recognized by Geoffrey Robertson QC himself in his article). This is why States have started to limit their own power by entrenching “fundamental rights” into their constitution (first of these countries being the German in their current constitution), and then have gone one step further by giving up sovereignty of jurisdiction in order to allow the best possible protection to individuals.

    It is therefore essential to defend the Court of Strasbourg as a key institution to protect our liberties, even if we can (and often must) criticize its jurisprudence.

  3. John Hirst says:

    What is interesting is that Parliament is taking an interest in what is being said in the blogosphere in relation to prisoners voting rights. For example, in the latest document
    “European Court of Human Rights rulings: are there options for governments?
    Standard Note:
    Last updated:
    18 April 2011
    Vaughne Miller
    International Affairs and Defence Section”
    Adam Wagner, Carl Gardner, and even me are quoted, along with other commenters.

    Unfortunately, on page 1, are two references to supporting documents where the links do not work for whatever reason. However, I phoned the HoC information office and they helpfully found the documents for me and suppled links to them which do actually work. FYI they are for
    29 March 2011
    14 April 2011

  4. John Hirst says:

    What if I was to say that Cameron is wrong we don’t need a bill of rights? Who am I to question a QC? According to Geoffrey Robertson, the stage is set for an almighty clash between Europe and the British Parliament in October.

    Even if we accept his scenario, who wrote the script for the play? I think you will find that I did. Whilst studying English law I was concerned about what I saw as flaws in the system and thought that it should be changed. A problem was that at the time, as a serving prisoner, I was denied a vote which meant that I was excluded from determining who should rule me. So, I set about changing the rules to allow me to participate. In other words, I mounted a challenge to the existing system. An English man, or British, if you like, being European is still not a recognised status on this island. The stage was being set for an almighty clash, way back in 1989.

    I decided that if I was going to achieve my objectives, then it would assist matters if the European Convention became part of English law. I had to wait until the Human Rights Act 1998 came into force in 2000 before I could attack Parliament. Even then Parliament had diluted the Convention. In theory, I was not meant to go to Strasbourg because rights had been brought home. The 2 years between the Act being passed and coming into force was meant to educate our judges about human rights. In practice, they were still stuck in the Parliamentary sovereignty mind set. So, I would have to teach them a lesson.

    It started with teaching a solicitor, then a barrister, followed by the judges and now the politicians. They had to come around to my way of thinking of not what the law is but what it ought to be. So rather than the almighty clash being between Europe and the British Parliament, it is between myself and Parliament.

    If Gefforey Robertson, QC, was right I would not have needed to go all the way to Strasbourg would I? I could have stayed at home and the British would have delivered. Only they didn’t. Therefore, there is a fault in the system. I have nothing but contempt for someone, albeit the Prime Minister, who has contempt for the Court. If the head of the Government is not prepared to protect a minority group, with the status of prisoners, within the Big Society, then creating a British Bill of Rights is not going to solve the problem. Is it?

    Might I suggest that Geffeorey Robertson read both the Hirst v UK (No2) and Frodl v Austria judgments? The latter case makes clear in the Hirst test that the Australian model of denying those serving 3 years and over from the franchise will not satisfy the ECtHR. Australia is not signed up to the Convention, we are therefore must fully comply with the judgments. Let’s have no more of this minimal compliance nonsense. There is no scope for a damage limitation exercise.

    I will only release the Queen, Commons and Lords, Executive and Judiciary, when the terms of surrender have been met. Instead of trying to follow Australia, the UK needs to follow the example of the Republic of Ireland in 2006. That is, all prisoners get the franchise.

    Here endeth the lesson.

  5. Michael Harwood says:

    The first problem that would occur in introducing a new Bill would be in its drafting. It would be difficult if not impossible to attain a sufficient degree of consensus across the main parties about the nature and content of the rights and freedoms to be protected. At the very least, coming to a consensus would require extensive research and consultation, costing both time and money. Even then, the likeliness that all parties concerned will be completely satisfied with the content of the resulting Bill is doubtful. This is not the case in respect of the rights guaranteed by international treaties to which the United Kingdom is already a party, because we are already obliged by international law to give effect to them.

    Another problem concerns the UK still being a party to the ECHR, whilst having a separate Bill. Decision makers throughout the public sector would have to bear in mind two sets of rights, which might make them more cautious and risk-averse, rather than less. The ECtHR would probably pay less respect to our case law, which would result in greater scrutiny of UK cases. The problem is that on the one hand, the Government would remain obliged to conform to the ECHR, and on the other, citizens and courts would be confronted by separate and overlapping sets of rights in domestic law.

    It is fair to accept that the HRA has its problems, but these are better remedied by reform of the instrument itself. There is little evidence to justify the time, expense and debate that would go into the development and implementation of a Bill of Rights. Being party to a new set of rights makes no sense constitutionally or indeed practically. The HRA provides a clear record of the rights and freedoms belonging to the citizens of the UK, a record which is shared by 800 million people across Europe.

  6. Ed Bates says:

    I wonder how the recent control order litigation would have played out under a British Bill of Rights.
    The Supreme Court’s judgment in ‘AF’ (2009) applied the Strasbourg ruling in ‘A’ (earlier in 2009), which basically said that those subject to a control order must be given the gist of the case against them. Certain of the Supreme Court Judges seemed most reluctant to apply the Strasbourg standard in AF, but it was applied nonethless as the Strasbourg law was clearly established on the point. Would this have happened under a British Bill of Rights? Perhaps so, perhaps not.
    It was suggested by some, including one member of the Supreme Court, that the new legal approach (required by the ECHR in A and followed in AF) would make the system of control orders unworkable. In fact, as I understand it, just three control orders fell becuase of the new regime (and, this was because the government refused to provide even the minmim of evidence against the individual).

  7. Corrupted Mind says:

    Absolutely fantastic blog post however, one thinks Robertsons piece (and this reply) to be too late. Many people already think that European law (be it, EU or ECHR) already surrounds us. Every judgment which we disagree with has an “European angle” that doubles or quadruples its insidious effects. It’s a really sad state of affairs.

    I can’t help but think that Eurosceptics are using the human rights courts as a staging post for their central desire of withdrawal from the European Community.

  8. Tara Davison says:

    Whilst I have the greatest respect for Geoffrey Robertson QC and I agree wholeheartedly that we should have a British Bill of Rights, I see this as building on the European Human Rights Law.

    During the reign of the last UK Government some 4,000 plus new laws were invented criminalizing the population for an ever increasing variety of new crimes. Not to mention the dracionian and manifestily unjust Proceeds of Crime Act.

    And on reputation! Contrary-wise in January 2010 Criminal libel was abolished making reputation the prerogative of the rich. Ordinary people now have no right to the protection of the Criminal Law for the most serious libels which amount to vilification.

    We need the Protection of the European Human Rights Act which can be built on and expanded until we can ‘hopefully’ have a British Bill of Rights which will return to the British People rights we historically enjoyed by Natural Law.

  9. public_lawyer1986 says:

    Good post- Robertson is nothing more than an opportunist. Even he must see that a British Bill of Rights would be a nightmare to enact (and no doubt, fail before long) and it necessarily involves a transfer of power to the judiciary which would make parliamentary sovereignty little more than a legal joke.

    And how exactly would the judiciary cope with rights like “the right to a healthy environment”?!!

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