On Monday, the think tank Policy Exchange published a Paper titled, ‘Keeping Human Rights at Home’. It has added fuel to the fire on an issue already proving so germane in the lead up to this Thursday’s House of Commons vote on prisoners’ voting rights: to what extent should we obey the European Court of Human Rights? Far from keeping human rights at home, however, the ‘cleverly and persuasively presented’ proposals threaten to curb the protection of human rights in this country and abroad. And thus, as Lord Hoffmann enigmatically put in his foreword, ‘[t]here are several things in this paper that I disagree with.’
Firstly, the Paper attacks the Supreme Court. In the name of ‘improving [its] democratic accountability’, it favours a US-style system whereby new Justices are chosen by Parliament instead of, as at present, the politically-neutral Judicial Appointments Commission.
The politicisation of the judiciary in this way would be a monumental mistake, as anyone who knows anything about the US Supreme Court will appreciate. Rather than being decided on an interpretation of the law, infamous cases such as Roe v Wade and Furman v Georgia (and their progeny) serve to highlight one thing: judges chosen by politicians will inevitably make decisions on the basis of their political and moral leaning, factors which are anathema to human rights decisions. This is the very result the Paper warns against.
Secondly, it attacks the European Court of Human Rights. The Paper goes as far as claiming that, ‘it is hard to conceive of a court which has become less credible than the one in Strasbourg.’ Thus, the Paper advocates withdrawing from the jurisdiction of the European Court after two years unless it obeys the UK’s demands, such as giving it more discretion in relation to certain rights.
It complains of the massive backlog of cases, the number of judges and the method in which they are appointed. Interestingly, the author feels it necessary to mention Protocol 14, a new measure which should deal with should deal with the backlog problem, only by way of a sparing reference in a footnote. The point to be made is that rather than issuing puerile ultimatums, we should contribute to a process, already underway, that improves the efficacy of the Strasbourg Court.
You get the feeling that the real motivation behind this Paper is the irritation of having to obey judgments that some people do not agree with. For example, even though there has been pressure from the top to comply, it is incontrovertibly clear that the Government, and a large section of the public, do not want to give prisoners the vote. But by refusing to comply or, indeed, by withdrawing from the European Convention as a whole, it sends out the extremely dangerous message that States have ‘the ability to pick and choose when human rights apply’.
This central issue, which would have the consequence of giving States with a track record of human rights abuses extra scope to erode human rights, is dismissed in one paragraph as being less important than ‘the welfare and integrity of the UK’s system of justice and democracy’. And so the Paper sets up an artificial balancing act, weighing in favour of an interest that was never actually vulnerable in the first place.
That much is obvious from a study of the potent margin of appreciation that the Strasbourg Court already grants to States. The thrust of the Paper, ultimately, is that the UK requires greater discretion. But it asks for too much. The European Court of Human Rights only applies minimum standards of human rights. To go below this is unfathomable. Indeed, this margin recently led the Strasbourg Court to reject the claim that the ECHR required States to recognise homosexual ‘marriage’.
Whilst giving rise to a veritable spider’s web of fascinating constitutional issues, the conclusion of the Paper is weak. Even if it was legally possible to withdraw from the Strasbourg Court, this would constitute a retrograde step in the protection of human rights in this country as well as in Europe as a whole. Ultimately, the Paper turns out to be nothing more than meretricious Euroscepticism dressed up in defective legal reasoning.