In the rush by the Tory Party right to outdo Ukip in proving its anti-European credentials the target has moved beyond the “tyrannical” EU to Strasbourg-based European Court of Human Rights and the European Convention on Human Rights.
Worryingly, as the assault on the court not only threatens to undermine its standing as the primary human rights standard-setting body in what are still some "slightly constitutional" states in eastern Europe, but may threaten our own Belfast agreement.
In part the Tory obsession is just because anything beginning with “euro” is anathema, in part, a exceptionalist sense that British justice is intrinsically superior and does not need lessons from foreigners. Beg to differ, m’lud.
Which all makes strangely ironic the proposals by the party to repudiate the convention on human rights if – which is most unlikely – the 47-member-state Council of Europe does not allow the UK to ignore those of the court’s binding rulings that don’t suit it. The court and convention, after all, were largely products of British/Winston Churchill’s post-war desire to bind wayward Europeans into a legal rights order that came up to British standards.
And the rights defined in the convention were those that suited a particularly conservative outlook. As Nick Cohen noted in the Observer, the drafters of the convention on human rights, including David Maxwell Fyfe, a prosecutor at Nuremberg and himself a Tory MP, also had very much in mind that it would act "as a protection against the "socialism" of Clement Attlee's 1945 Labour government as much as against the communism of Joseph Stalin's Soviet Union, and it shows." No question of social rights.
Several decisions by the Strasbourg court have particularly upset Tories. It ruled Britain's ban on prisoners voting unlawful, that whole-life sentences should be subject to review,and that Abu Qatada, accused of terrorist offences, should not be deported to Jordan without guarantees about evidence based on torture. Further back there were also Irish-related findings – that British troops were "primed to kill" in Gibraltar and the prohibition on interrogation techniques used on suspects interned in Northern Ireland.
Tories insist that existing European rights will be incorporated into a new British bill of rights. All that will change is that English judges will no longer have to follow the rulings of the then merely advisory court. If that means the same end result, as Cohen asks, what is the point? If it were only so simple . . .
Former Tory attorney general Dominic Grieve told the Guardian his own party's plans are legal nonsense and "puerile" and argues that the idea that they can be negotiated with the Council of Europe "so that the UK has its own space where it can [take what it wants] while everyone else complies is almost laughable. How can the UK obtain such a status when other countries have signed up to an agreement collectively to implement judgments?"
Not least countries like Russia and Turkey, which are only dying to repudiate part or all of the convention.
The Tory attack on it has potentially important legal implications closer to home. The repudiation of the convention would place the UK in breach of international treaty obligations because of its commitment in the treaty that copperfastened the Belfast agreement to introducing the convention into Northern Ireland law. That is a binding agreement in international law and to unpick it would require the consent of the Irish Government and, arguably, of all the Northern parties, a consent that would certainly not be forthcoming.
Alternatively Westminster could legislate to allow the writ of the convention to continue to prevail in Northern Ireland while not in the rest of the UK, creating two legal rights regimes within the UK. A “total mess”, in the words of one academic lawyer.
It is also clear that shaking off the court/convention’s allegedly pernicious influence will prove more difficult than simply repudiating the convention . The convention is explicitly weaved into the jurisprudence of the EU’s European Court of Justice and the union’s Charter of Fundamental Rights, and the EU has agreed to to accede to the convention. And commitment to it is now a prerequisite of accession – though perhaps not of continued membership.
Art 6 (1) of the Treaty on the European Union provides that “the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights”. In the charter the rights in the convention are considered to be a minimum standard of protection.
When the EU accedes the Union’s institutions and bodies will be subject to the authority of the Strasbourg court on human rights issues.
So, extracting the UK from the clutches of Strasbourg may also require a renegotiation of the UK’s relationship with the whole EU. But then, as we know, that is also part of the Tory agenda.
psmyth@irishtimes.com