I am sorry that Jessica Simor thinks that I am dangerous as well as wrong about the European Human Rights Convention, for she is an excellent lawyer not normally given to hyperbole. Anyone reading her angry response to my proposal that the UK should leave the Convention could be forgiven for thinking that I was opposed to human rights. This is because Simor does not fairly summarise the view that she is attacking.
My proposal is that the United Kingdom should have a statutory code of human rights, call it a Bill of Rights, which would replicate the Convention but would not be subject to the jurisdiction of the European Court of Human Rights in Strasbourg. It would be enforceable by the domestic courts according to its terms. But it would avoid the problem posed by the undisciplined behaviour of the Strasbourg Court. That court has emancipated itself from the terms of the Convention, which is the only thing that the state parties have agreed, and has roamed unconfined across the whole range of social policy, exercising an essentially legislative power to decide what further rights European states ought to have.
I am not an admirer of Suella Braverman, her Rwanda policy or her views on multiculturalism. My concerns about the Strasbourg court do not stem from a fixation on sovereignty or from insular nationalism. I recognise that any treaty obligation bearing on the contents of our domestic law will inevitably operate as a limitation on our sovereignty. That is not necessarily a bad thing. It may be justified in order to achieve something that we can only do in conjunction with other nations, such as creating one of the largest single markets in the world. That is why I regret that Britain left the European Union.
The ECHR is entirely different, for there is nothing in it that the UK cannot achieve on its own through its domestic legislative process. Ultimately, the issue is not whether we approve or disapprove of particular decisions of the Strasbourg Court. The issue is how we should be making law for a democracy. It cannot be consistent with democratic decision-making to confer legislative power on a body that declines to be bound by the mandate the nations have given it and is not answerable to the people for whom it legislates.
At this point, it is customary for the advocates of international human rights law to declare that Britain has a horrible human rights record, and that its parliament and judges cannot be relied upon to respect human rights without the tutelage of Strasbourg. Sure enough, that turns out to be the essence of Simor’s argument. It is, however, a travesty.
Most of her argument is about gay rights. She says that Britain “did not want these individuals to be protected by any right”. Really? Let us look at the facts. The acceptance of same-sex relationships was a major cultural change in the second half of the last century. In 1950, sexual acts between males were criminal in much of the western world. Britain was among the first of these countries to decriminalise them in 1967, followed by West Germany (1969), Canada (1969), Finland (1971), Norway (1972) and then by a flood of other countries in the 1980s and 1990s. These changes were enacted by democratic legislatures without any prompting from Strasbourg. Indeed, Strasbourg habitually dismissed complaints about the criminalisation of homosexuality as “manifestly inadmissible” until 1978. Whatever else one might say about these facts, they hardly support the suggestion that Britain needed to be rescued by Strasbourg from its systematic hostility to the human rights of gay people.
The Strasbourg court has roamed unconfined across the whole range of social policy
Ah, says Simor, but homosexual acts were not decriminalised in Northern Ireland until 1982, and gay people were excluded from the armed forces until 2000. In both cases the change followed adverse decisions of the Strasbourg Court. This is true, but it lends little support to her case. Northern Ireland was a highly conservative province with a strong religious identity. It had had its own legislature until 1972, which had declined to follow England’s example. The Republic of Ireland did the same. It continued to criminalise homosexual acts until 1993. It is interesting to note that the decriminalisation of homosexual acts in Northern Ireland followed Strasbourg’s decision in Dudgeon. In that case, Mr Dudgeon had been questioned by the police and some of his papers were taken, but the Director of Public Prosecutions refused to prosecute on the ground that it would not be in the public interest. The papers were then returned.
As for the exclusion of gay people from the armed forces, this was based not on governmental prejudice or parliamentary resistance but on what were believed by the military to be sound operational principles. This view was probably wrong, but it was widely shared. Other countries had similar bans. The United States continued to reject known gay people from its armed forces until 2011. In England, the High Court and the Court of Appeal strongly criticised the British practice, but could do nothing about it because the Convention had not yet been incorporated into English law. If my proposed domestic Bill of Rights had existed then, the practice would have ended five years earlier than it did, since, like the Convention, the legislation would have protected the right to private life. Even on the narrowest definition, private life must include a person’s sexuality.
Simor’s other example concerns the Strasbourg Court’s remarkable decision in 2011 to extend the operation of the Convention to overseas military operations. She says that it followed a principle laid down by earlier Strasbourg cases dating back to the 1970s and that no one should have been surprised. I am afraid that the position is more complicated than that. Article 1 of the Convention provides that state parties must extend the protection of its terms to people within their jurisdiction. That clearly means its territorial jurisdiction, in accordance with the principle of territoriality in international law. Nevertheless, in 1975 the Strasbourg court impermissibly extended the Convention to military operations by one Convention state in the territory of another. In 2001, the Court was invited to apply the Convention to the participation by European states in Nato’s bombing of Belgrade. It refused to do so on the ground that the Convention was not designed or suitable for conditions in non-Convention countries. Then, without any explanation, the court abruptly reversed its position in 2011 and gave a series of judgments on UN-sponsored peacekeeping operations in Iraq and Afghanistan. Some of these decisions have hamstrung European armies engaged in such peacekeeping operations, for example by restricting their right to hold Taliban fighters as prisoners of war after they had been captured in battle. This has caused dismay not only in European defence ministries but at the United Nations and in the International Red Cross. It is one of the worst and most damaging decisions in Strasbourg’s history.
A glance at the annual statistical digest published by the Strasbourg Court will show that the UK has in fact one of the best human rights records in the Convention system. But the problem is not only the occasional decisions against the UK. It is the many thousands of decisions about the laws of other countries which are in practice binding on the English courts. During my seven years on the Supreme Court, I lost count of the number of times we were obliged to modify perfectly reasonable principles of English law in order to comply with Strasbourg case law about, say, Bulgaria or Turkey. If we had not done this, the losing party would just have gone straight off to Strasbourg to get our decision reversed. Sometimes Strasbourg listens and thinks again. More often it does not. These cases were usually nothing to do with fundamental rights or averting the reappearance of Nazism. They were about things like the rules of court procedure, the deportation of convicted foreign criminals, sentencing policy, the keeping of police records, social security rights, human fertility treatment and so on. This kind of micromanagement of the domestic law of European states devalues the whole notion of fundamental human rights.
I acknowledge that there is some value in Britain’s ECHR membership as an example to other countries, but I think that it is very slight. Countries that have emerged from half a century of Communist domination usually need no urging to adopt the kind of rights that we in Britain have had for many years, while countries like Russia and Belarus simply ignore adverse decisions from Strasbourg without much regard to anyone else. If the price of the small measure of soft power afforded by British ECHR membership is submission to the Strasbourg Court’s arbitrary interference with English law, it is too high.
Of course, Simor is right to point out that I have not always thought this. Although I have often criticised the way that Strasbourg operates, I did not always favour withdrawing. I have reluctantly changed my mind because it seems to me that the Court is too ideologically committed to change its ways as I once hoped that it would. The British courts are a perfectly adequate alternative. They are quite used to enforcing human rights vigorously, while maintaining a proper measure of respect for the democratic process. Many countries with legal systems similar to our own, such as Canada and New Zealand, have domestic charters of human rights, enforceable by their own courts without the supervision of an international tribunal. No one accuses them of backsliding on human rights. To suggest that the UK should adopt the same approach hardly warrants the bucket of ordure that Simor has aimed at me.
