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What happens when politicians clash with courts over human rights?
Friday 04 March 2011 by Jonathan Rayner
‘Is X a good judge?’ one lawyer asked another.
There was a pause while the second lawyer weighed his words.
‘There are only good judges and better judges,’ he replied at last. ‘And yes, X is a good judge.’
That example of damning with faint praise comes with the compliments of Sir Konrad Schiemann, a judge at the European Court of Justice (ECJ).
He had already described himself as an ‘innocent’ who, on the day he arrived in the UK to deliver the present lecture, was ‘shocked by the political maelstrom’ that was then raging in our parliament and media.
The ‘maelstrom’ had been sparked by a diktat from the European Court of Human Rights (ECtHR) telling the UK government to comply with its ruling that prisoners should be allowed to vote in elections.
Failure to comply would result in massive fines.
Senior politicians, Schiemann was aghast to note, were openly discussing paying the fine rather than obeying a diktat from a court to which the UK had willingly signed up.
More extreme still, some were urging the UK’s withdrawal from the European Convention on Human Rights (the Convention) and, by extension, from the European Union (EU) itself.
Much of Schiemann’s lecture, ‘The European Union and human rights – Where are we going?’, argued that any such withdrawal would be detrimental both to this country and to the wider world.
It convinced me, at least, that he fell into the ‘better’ category of judge.
He started by warning his audience that single-mindedly electing to do ‘what’s best for the UK’ is not far distant from doing ‘what’s best for me’, and none of us likes the person – or nation – who always looks after number one to the detriment of others.
That was why his role at the ECJ was not to represent the UK, but to do what was best for the EU.
He said: ‘That’s easy because what’s good for the broader world is good for everyone.
‘It’s better for us all, for example, that Germany and France have been at peace for the last 65 years rather than going to war at 20 year intervals.’
It was a small sacrifice, he argued, to accept ECtHR rulings that were sometimes unpalatable to the national psyche if the reward was so obviously desirable.
Why else submit to this court based in far off Strasbourg?
Because every country, Schiemann said, the UK included, occasionally feels compelled to act in a way that it naturally abhors.
We condoned the torture of terror suspects, for instance, not to mention detention without trial, extraordinary rendition, telephone tapping, control orders and all sort of barbarous things that we associate with countries where the rule of law does not prevail.
Our politicians justified this by saying the security forces needed extraordinary powers to meet an extraordinary emergency.
The ECtHR, on the other hand, has the impartiality and distance to remind us that ‘laws should speak the same language in war or peace’, Schiemann said.
Why else continue to throw in our lot with the ECtHR? Because, Schiemann said, we have an ‘honourable part’ to play in helping countries without our proud tradition of civil liberties to embrace the Convention and all its advantages.
And because the more countries that accept the jurisdiction of the ECtHR, the fewer fingernails are going to be wrenched out by secret policemen, he added.
The people of the UK have no problem with the various articles of the Convention – none would argue with the right to life, for instance, and we are notorious advocates of free speech.
Our problem is the way the court – and its judges - interprets and applies these rights.
Schiemann said: ‘Political sensitivities will raise hackles in one country and be acceptable in another.’
Politicians of a dissenting state are left with a range of choices, he said.
They can take the view that it is they, not the judges’ decision, that is wrong and comply with the court.
Or they can deplore the decision, but opt to live with it to show solidarity with the other member states.
Or they can just ignore Strasbourg, which as things stand is illegal. Until politicians alter the law, then they and the rest of us should obey it, Schiemann said.
Schiemann concluded by warning against any withdrawal from the Convention.
This would entail withdrawing from the Council of Europe and, because all members of the EU are also members of the Council of Europe, withdrawal from the EU.
‘Is the dissolution of the EU good for the wider world?’ he asked. ’I may one day be called upon to decide that in court, so for today I’ll say no more.’
Sir Konrad Schiemann was speaking at the inaugural lecture for City University’s Institute for the Study of European Laws earlier this week.
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