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European court pursues eastern offenders
I have been taken to task by a Gazette correspondent (R Breeze) who wants a more balanced account of the role of the European Court of Human Rights: ‘We are left with… the perception of an unchecked, bureaucratic body that saps national sovereignty and dabs its paws at whatever it pleases… how about some constructive criticism of the ECtHR rather than the usual platitudes?’ Mr Breeze merits a serious response. Let me make three points.
The first is context. I assert that the UK has no viable economic or political future outside Europe. I am currently reading David Saul’s book on the Indian mutiny, which took place at the height of the British Empire. No deference to the courts in those days and perilously little to democracy. Over the last two decades, the strength of British finance gave the illusion that we might still be able to make it on our own as a world player. We have been rudely disabused. We have no future outside Europe. That is something which has clearly been put to David Cameron by president Obama and vice-president Biden. Our use to the US is inside Europe: outside it, we would be, frankly, an irrelevance. No wonder the Danish series Borgen has been such a hit among the British political classes. It portrays our own future as a middling European power whose weight comes from our capacity to leverage alliances. To come out of either Europe – the Union or the Council – is to opt for economic and political obscurity.
From this geopolitical analysis follows my second point. The issue about the European court is not whether we submit to its jurisdiction but how we manage the relationship with it. Let us begin by understanding its role through its annual report for 2012. The statistics speak. The UK ranks where you would expect in terms of adverse judgments (10), about equal with France (19) and Germany (11). Turkey and Russia were both faulted over 10 times more than the UK. A second rank of countries, including Bulgaria, Greece, Poland and Ukraine, more than five. Russia, Turkey, Italy and Ukraine account for more than half of all applications made in the year.
The overwhelming impact of the court has been on Europe’s eastern periphery. It is doggedly trying to force Turkey, Russia and former Eastern bloc countries to live up to human rights standards. These countries may seem pretty distant, but Russia’s influence on our economy extends well beyond Roman Abramovich’s ownership of Chelsea. Turkey may seem remote but it is visited by 2 million Brits each year. The UK is its second biggest export market and it has growing influence in the Middle East, from which we get our oil. We never have been ‘an island, entire of itself’, in John Donne’s haunting words. We have always been joined to a mainland that for 100 years might have been figuratively represented by our Empire but is now decidedly Europe.
Third, does the court tend too easily to override national sovereignty and impose its own view? There is a difficult balance between logical coherence and keeping a due distance. It would be surprising if the court got it right every time. Personally, although the row about prisoners’ voting rights is rife with humbug, I think that the court might have given more weight to the views of a democratically elected legislature.
But, there is a difficult line. The court was praised by its usually implacable foe, the Daily Mail, for its judgment in Eweida when it overrode a domestic decision on the wearing of a cross by a British Airways employee (‘Every once in a while, even the European Court of Human Rights makes a just decision… in overturning a British court’s ruling against Miss Eweida, they struck a blow for sense and religious freedom that put our own judges to shame’.) The British judge, Sir Nicolas Bratza, voted against the court’s decision, arguing that it should have left the domestic court’s determination alone. However, the court clearly wanted to produce a judgment in which it could make a reasoned distinction between restrictions on religious manifestations which were justifiable and those which were not. Who is to say that was wrong?
By all means let us have a grown up debate about the margin of appreciation to be given to national legislation in the European court’s balancing of rights. But let us have it on the basis that we accept the role of the court within the European Convention on Human Rights and that we are looking for a consensus that does not impinge on the work of the court in relation to serially offending countries which provide, quite rightly and in our long-term interest, its major current focus.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice