Strasbourg is not the Vatican…yet.

6 December 2011 by

Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).  

If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint;  the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners.

As for the recent criticism of the Strasbourg Court’s tendency to overreach itself, Lord Lester’s answer is the (soi disant) Strasbourg mantra that “national authorities are better placed than an international courts and parliaments have a wide margin of discretion…”

With respect, this is like arguing a defendant’s innocence by repeating his own claim that he didn’t do it.  Read my lips, say the Strasbourg judges. We’re not going to interfere, but..

The other difficulty with this article is Lord Lester’s conviction that the “furore” over the Court’s controversial judgments is getting in the way of its efforts to improve.

Despite the need for reform, the Strasbourg Court deserves defending.

The use of the word “deserves” is puzzling. The problem is not the word itself, which bears the ordinary meaning of “merits”. The issue is  the implied opposition between those who criticise it (“sniping”) and those who, like Lester, feel that the Court is our only bastion against the “tyranny of majorities and the abuse of state power”. This implies an oddly impoverished notion of what it takes to be, and function, as a supra-national institution whose task it is to patrol the precincts of the Council of Europe to check that its members are staying within Convention constraints. If this institution is so weak that it can only be defended because it would otherwise crumble, it is not worth defending.

It is now no longer considered blasphemous to subject legal institutions  – even international ones – to critical debate and discussion. Strasbourg is not the Vatican. As a Liberal Democrat peer, Lester might be forgiven for his general pro-Strasbourg stance. But as a defence of Strasbourg and its jurisprudence against the very serious charges recently levelled at it, this would not stand up in court.

Whilst we’re behind the paywall, a few gems from Matthew Parris, who is also given to mulling over human rights matters, although not quite in the Lester vein. A couple of weeks ago he questioned the logic of the “established order”, wondering what exactly the  Equality and Human Rights commission is for, and why  it had conducted an inquiry  into home care for the elderly?

If home care is a matter of equality and human rights, what isn’t?

Parris’s point is that if the EHRC really exists to enforce entitlements and equality in the name of human rights, do we really need all the other publicly funded organisations whose job it is to police more or less the same things?  The recent NICE recommendation that all women should be entitled to childbirth by Caesarean section is surely just as much a matter of human rights as home care for the elderly.  In fact there’s work for the EHRC all over the place, such as preventing the  UK Border Agency from targeting high-risk flights and individuals, also reported in an earlier edition (November 24th).  Everywhere you look, there are issues crying out for attention of this sort –

Snippet three reports a refund by Microsoft for online Xbox users whose accounts have been hacked into by thieves. No rights involved here? Internet users are humans, surely? The fourth report is about E. coli killing two babies in a neonatal and maternity ward in a Swansea hospital. Is this any less an EHRC matter than substandard care for the elderly?

Parris concludes his musings with the suggestion that the EHRC’s excludes very little in the field of domestic governance, under ‘our ever-sloppier definition of the words ‘equality’ and ‘human rights’”

Both terms being essentially meaningless, there is no core to the concept and it becomes impossible to know where the periphery might end.

Perhaps this is ultimately the weakness at the core of the European Court of Human Rights and its constituent institutions, a flaw which is manifesting itself in the multifold problems of case overload, inconsistent and unpredictable jurisprudence, and interference in sovereign matters.
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  1. Rachit Buch says:

    Carl, Adam and Tim, there’s a fascinating argument to be had about the nature of human rights. I agree that there must be caution in assigning an ever wider group of social provisions the status of legal human rights. But I think there’s a difference between the legal enforcement of human rights and the wider, social human rights movement.

    If some economic and social rights become part of a social movement for human rights, then the ‘human rights’ part of the argument can be just a means to the end of improving social and economic well-being. Focussing on the legal enforcement of rights, rather than their social acceptance, is in my view the counter-productive element. I would be happy with a burgeoning social movement with far stricter definition in the legal sphere.

  2. Tim says:

    Talking about the quality of social care, here’s what happened in Nazi Germany:

    The poster on the right of that link carries the text:

    “60,000 Reichsmarks is what this person suffering from a hereditary defect costs the People’s community during his lifetime. Fellow citizen, that is your money too.”

    Now, keeping in mind a number of things, including the lessons of history, many people’s secret love affair with Social Darwinism, the savage cuts that we face – including cuts specifically aimed at social care, as well as the subordination and demonisation of disabled people in the hate media – I would argue that social care needs MORE human rights application at this time, not less.

  3. Adam Wagner says:

    Carl – thanks for the comment. I agree with you and Rosalind that there is a danger of hiding behind flags at the expense of figuring out how to make human rights law work better.

    On the topic of what “human rights” and are not, see my post from a while ago on Professor Samuel Moyn’s essay in The Nation

  4. I’ve not read Lord Lester’s piece, it being behind the paywall, but the claim that criticism hinders reform seems to me difficult to justify. Why should it?

    I’m a supporter of the court and its existence, and a supporter of the Human Rights Act, which I see no clear need to amend. But supporting those things doesn’t mean you have to do so uncritically. Actually what I think is needed in the debate is more focus on how the court and our relationship to it could be improved, rather than any sort of rallying to a flag, whether the Union Jack or the circle of stars.

    On the mantra of “the margin of appreciation”, you’re quite right. Precisely the problem in Hirst is that the court paid lip service to the margin of appreciation, but no more. What matters is what the court does, not what it says.

    I’m also very interested in Matthew Parris’s critique, which reflects the criticism I’ve made sometimes of what I call “human rightsism” – the belief that all social questions can and should be addressed in terms of human rights. The quality of social care is exactly the example that’s come to my mind most recently, following the Cheshire case. I think that borders on treating human rights as a panacea or even as a secular religion. It risks diluting the whole idea of human rights and discrediting it.

  5. Tim says:

    I agree that Strasbourg is not the Vatican. It is, in fact a court of law that we have signed up to, whose jurisdiction extends to us and whose judgments we are supposed to obey and implement.

    Any failure to do so is contempt of this court.

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