European Court of Human Rights – leave it or change it?

Wayne David

If you were to believe the lurid stories in the press, you would think that the European Court of Human Rights (ECtHR)  in Strasbourg was a conspiracy against the United Kingdom; a European Court whose raison d’être was nothing less than to continually interfere and even subvert Britain’s independence.  So, Sadiq Khan, Labour’s Shadow Justice Secretary, and I went to Strasbourg to find out for ourselves what the ECtHR was all about and whether its notoriety was well-founded.

What did we find?  When we went to the Court one of the first things that struck us was the extent of British influence.  For a start, the Court is situated adjacent to a street named after Ernest Bevin, a Labour Foreign Secretary.  Bevin, along with Winston Churchill and Maxwell Fyfe, was one of the guiding lights of the European Convention and the ECtHR soon after the Second World War.  The futuristic design of the Court is the work of British architect Richard Rogers and the Court has more than its fair share of Brits working there.  But, most importantly, Britain is seen in the ECtHR as a country with an exemplary record of upholding human rights.

Even though there have been judgements which have, understandably, angered British people, they are the exception not the rule.  Indeed, the vast majority of cases which are brought against the UK are either dismissed as invalid or the Court actually finds in favour of the UK.  Only 4 countries win more cases than the UK – the Netherlands, Sweden, Denmark and Andorra.

Because of Britain’s record on human rights, as well as our long and proud record of promoting human rights throughout the world, there is at best puzzlement and at worst incredulity in Strasbourg at the British Government’s hostility to the ECtHR and all it stands for.  For many in Strasbourg, if Britain were to withdraw from the European Convention and the Court, as an increasing number in the Conservative Party now advocate, the implications for upholding human rights throughout the world would be disastrous.  It would send a clear message to countries like Russia; that human rights are of little real importance and that it is justifiable to ignore international law if it happens to be inconvenient.

To reject the Tories’ insular and indifferent attitude to human rights is not to suggest that the ECtHR does not need to change and improve.  The huge backlog of cases and, as a consequence, the length of time it can take for cases to be heard, is a frequent criticism, though recent measures introduced by the Court may help to address this.

In my view, a more serious criticism is that the Strasbourg judges are of varying quality and expertise.  Although it is inevitable that judges from different countries will have different skills and ranges of expertise, it is unfortunately the case that there are examples of judges being put forward by certain countries for reasons other than their legal expertise, knowledge and experience.  The Parliamentary representatives in the Council of Europe do a good job in interviewing the candidates and assessing their suitability but a far more vigorous process needs to be put in place.

There is also a case for the Court’s judges to do more to take into account the differing circumstances of member states’ legal traditions when reaching their judgements.  While there is a general awareness of the various legal systems of the 47 countries who are party to the European Convention, such an appreciation should be ingrained and made more central to the Court’s work.

For all that, many of the things which incense British people are more to do with administrative failings at the Home Office than the ECtHR.  I think for example of the case of Amy Houston.  Amy was a 12-year old who was knocked down by a car and killed in 2003.  The driver of the car was driving without a license and without insurance and continued to do so after Amy’s death.  He was an Iraqi Kurd whose application for asylum had been refused.  But because the Home Office made a mistake and didn’t try to deport him immediately, he was able to stay in this country.  Despite the facts of this case, it has been quoted on a number of occasions to fuel an anti-human rights and an anti-ECtHR agenda.

Equally, it is important to remember that the vast majority of human rights cases are decided by our courts and not by Strasbourg and it follows that if there are improvements to be made we ought to look closer to home and not simply look to Strasbourg.

Of course, many Tories are not interested in reform, either in the UK or Strasbourg.  The ascendant Tory right are interested in one thing only – Britain leaving the European Convention on Human Rights.  This is in part because they are opposed to all things European, whether it’s the European Union or the Council of Europe.  Opposition to the Convention also fits in well with their developing agenda of curtailing individual freedoms and the checks and balances which are cornerstones of our democracy.  Undermining human rights is part of the same mind set which is depriving thousands of less well-off people of legal aid, is restricting judicial review and which means that some Tories are now in favour of breaking international law when it suits them.

Labour believes the need to defend the basic human rights of all human beings is too important to simply give up on international law.  Instead of looking for scapegoats to hide their own failures, the Government should be putting in the hard graft to work with other countries in reforming the ECtHR. Sadly that looks unlikely to happen, which leaves Labour as the only party capable to achieving the changes needed.

Wayne David is Labour MP for Caerphilly and Shadow Minister for Political and Constitutional Reform

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