The future of Britain’s role in the European Union has made some unsettling headline news over the past few months, with Prime Minister David Cameron’s pledge of an in/out referendum on EU membership – but, only if the Conservative Party wins the 2015 General Election.
The speech came following a ComRes survey that revealed the anti-EU, UK Independence Party (Ukip) achieved its highest-ever rating at the expense of the Conservative Party. This helped Labour to extend its lead, placing Labour at 41 per cent, and the Tories at 31 per cent. If repeated at a general election, such figures would give Labour an overall majority of 110, with the Tories losing 99 seats, and the 36 out of 57 Lib Dem MPs defeated.
Interestingly, in the wake of the Conservative Party’s drubbing in the Eastleigh by-election, after being out-beaten by the UK Independence party, Senior Tory cabinet ministers have this week raised the prospect of pulling Britain out of the European Convention on Human Rights – again mentioning, only if the party obtains an overall majority in the 2015 General Election. Meanwhile, the Justice Secretary Chris Grayling says that the Conservatives will repeal the Human Rights Act, which enshrines the ECHR in domestic law. Theresa May, the home secretary, has reportedly been working on the plans for the Tories’ next manifesto.
The recent news is all the more depressing when one considers that the Opinium/Observer survey found that 56% of Britons would probably, or definitely, vote for the UK to leave the EU if they were offered the choice in a referendum.
It is, therefore, clear that such calls by the Tories are merely gesture politics, in an attempt to regain popularity. It is also clear that because the Tories have lost a by-election, they now feel the need to play to the audience. It does not make any sense for Britain to leave the EU, or for the Human Rights Act to be repealed, nor for the UK withdraw from Strasbourg. However, if a referendum really is held, it places Britain in a very dangerous position, given the position that so many Britons feel such distain towards the EU. Ed Miliband, leader of the Labour Party, is on a similar wavelength of thought to myself. Speaking on the Andrew Marr Show, Miliband stated:
“I think it is incredibly dangerous what David Cameron is doing. He is essentially sleepwalking us towards the exit door from the EU.”
“The last thing we should do is start to say for some date five, six, seven years hence, let’s decide now to have an in/out referendum. As Michael Heseltine said very well yesterday, that means you are having a referendum on a negotiation that has not yet begun, with a timescale that is uncertain and an outcome that is unknown. That is an incredible gamble. We know why this is happening. He is worried about the threat from Ukip and he is worried about what is happening in his own party. It is the wrong thing to do.”
There is perhaps a strong possibility that the EU debate is merely a sideshow, distracting from the real problems of the Eurozone, the UK economy and manufacturing – especially when there are fears of the UK facing a triple dip recession, not to mention losing its prestigious AAA rating.
Another depressing issue, is the fact so many British people seem to confuse the European Union with the European Convention of Human Rights, and the Human Rights Act with the European Convention. It is now over twelve years since the Act took effect, but uninformed and misleading statements are still made about the EU, and human rights law, by those who should know better, and circulated by those who could not care less.
When debating topics based on the European Union, some of the comments I receive on Twitter never fail to amaze me with regards general level of misunderstanding and ignorance as to what the functions of the EU actually are.
Contrary to what the lady in the above tweet (and many others) seem to believe, leaving the European Union will not stop the courts preventing the removal of foreign criminals, and neither will it do anything to improve our national security, which I will explain.
In one sense, one cannot blame peoples’ ignorance when they believe they are “informed”, after reading absurdly incorrect news articles that are all too regularly sensationalised in a number of tabloid newspapers. A few weeks ago, I came across this shining example of Eurosceptical ignorance on Twitter, when someone posted a link to this article published in ‘The Sun’: Youngsters at risk after EU ruling. According to yet another scare-mongering tale, The Sun claims that the “EU could let fiends like him prey on your children.”
To set the record straight, the story concocted in the mentioned Sun article, came from a judgement that was actually given by the Court of Appeal – an English and Welsh court, based in the Royal Courts of Justice in London. It is not an EU court, and the EU had absolutely nothing to do with this particular judgment which was regarding Criminal Record Bureau (CRB) checks and the incorporated rights of Article 8 of the European Convention on Human Rights. The judgement given by the Court of Appeal can be found here, and anyone who takes the time to read it will observe how the judgement is in no way related to the story in The Sun.
The Mail on Sunday has also provided excellent evidence of misinformation with their story purporting, “New outrage as Taliban suspect told he can stay”, which begins “In a new human rights case to cause anger”. The case is not even about a human rights at all, but is actually about the EU Refugee Qualification Directive. The case report can be found here. Please feel free to read it and see if it bares any resemblance to the story. Incidentally, if we were to expunge all traces of the European Convention on Human Rights from our law, that Directive would still apply.
However, for those without a legal or political background, stories such as that published in The Sun and the Mail on Sunday, can seriously misinform, and unnecessarily scare a significant number of people. It is unfortunate that the tabloids appear to get rather confused when ranting about their hatred of the Human Rights Act and their hatred of the EU. After all, it can all get quite complicated, and with such feelings of outrage, who cares about the difference between the European Union, Council of Europe, European Court of Human Rights, the European Court of Justice, the Euro… They’re all the same – right?
For those who are confused between the European Convention of Human Rights, such as the person in the above Tweet appeared to be, the EU has nothing to do with the European Convention of Human Rights, just as the EU and ECHR have nothing to do with the Court of Appeal. The EU is not a party to the Convention, and has no role in the administration of the court of human rights.
The European Convention of Human Rights and the European Court of Human Rights in Strasbourg, is administered by the Council of Europe (‘CoE’), an organisation set up in 1949 by the Treaty of London, for which the UK was one of the first ten states to sign up. Ironically, it was Winston Churchill – proudly named the greatest Briton by The Sun, and held in such high regard by the British Nation – who called for a ‘Council of Europe’ six years earlier in 1943.
Although signing up to the European Convention on Human Rights is a condition of EU membership, they are distinct institutions. The EU, by contrast, is an economic and political union of 27 states, and its development was separate from the CoE.
Despite so much British outrage regarding the subject of the European Convention on Human Rights in its most recent years, the European Convention on Human Rights was actually formed by the CoE all the way back in 1950, and entered into force in 1953. It is, in fact, an international treaty that is aimed at protecting human rights. Ironically, it was drafted in the most part by David Maxwell Fyfe, a British Conservative MP, lawyer, and prosecutor at the Nuremberg trials. Furthermore, it was based on many of the UK’s common law rights. 47 states are now party to the Convention, and have all agreed to abide by rulings of the Strasbourg court. In a further twist of irony, consider that it was former Conservative Prime Minister, John Major, who signed the Maastrict Treaty in 1992, thus forming the European Union; David Maxwell Fyfe, a Conservative MP who oversaw most of the drafting of the ECHR; and it was Winston Churchill – yet another Conservative, who called for a Council of Europe. Yet, it is also the modern day Conservatives who now claim to be so skeptical of Britain’s role in the European Union and European Court of Human Rights.
However, it was the Labour enacted Human Rights Act, 1998, which brought much of the European Convention on Human Rights (which was based on many UK common law rights – as mentioned above) into domestic British law. This ensures that all UK courts are able to apply human rights law directly, which means that the vast majority of human rights judgments affecting British law, are actually produced by local UK judges. Thus, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg. The Act’s existence has made it rare for applicants to require a hearing at the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant ever since. The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained – which goes against the tabloid propaganda that the UK has given away its legislative powers to Europe.
Since 2000, human rights have become part of the mainstream in litigation. I do find it incredibly ironic that Newspapers have sought to rely on Article 10 – Right to free expression under the ECHR (para 33 and 36 here), yet are so quick to loathe the very institution that gives them to freedom to publish such sensationalised misinformation.
From the amount of coverage and political argument the court generates, many may be mislead into believing that it rules against the UK hundreds of times per year. However, the statistics may surprise you: Only around ten judgements a year come from Strasbourg. In 2012 there were 3,308 applications made by individuals to the Court involving the UK, with only 21 were declared “admissible” by the Court. The 21 UK cases amounted around 2% of the total substantively considered by the Court (1,093), with the Court finding an actual violation in only ten UK cases. A similar number of applications were brought before the Court in 2011, suggesting that around 99% of applications from the UK are being dismissed in the very early stages.
Context is everything!
This is also one reason why leaving Strasbourg will not stop the courts preventing the removal of foreign criminals. As you can see from this full list on page 16 of this Ministry of Justice document, only a small number include cases on foreign criminals, extradition, or immigration.
In fact, the vast majority of such cases are decided by UK domestic courts, and none of the cases mentioned in previous Mail on Sunday’s headlines about courts stopping removals, is a European Court of Human Rights case. All relate to decisions by UK courts, as the Human Rights Act 1998 gave local UK courts the power to enforce most of the rights outlined by the European Convention on Human Rights. This prevents our human rights law being forged exclusively in Strasbourg, and UK judges are largely deciding UK human rights issues. Therefore, even if the UK withdrew from Strasbourg, the UK courts would still continue to apply human rights law, taking account the European Convention of Human Rights, as they are obliged to do by section 2 of the Human Rights Act.
Should the Conservatives also repeal the Human Rights Act, which has been suggested on many occasions, it would be replaced by a of Bill of Rights, which is likely to be similar to the ECHR – with a few British tweaks. Although the provisions of the European Convention are already enshrined in British law through the Human Rights Act, under Theresa May’s proposals, the final right of appeal would be to the British Supreme Court – not Strasbourg. That would mean a British citizen would no longer have the right to appeal a Supreme Court decision. Is that what Britons really want?
It must also be mentioned that the European Convention on Human Rights is just one of a number of international conventions that prevent the UK in deporting people back to their home countries, where they may face a real risk of torture, or from committing acts that may disproportionately affect children, such as ritual practices that harm children, paedophilia, and murder. Withdrawing from the European Convention would do little or nothing to change the UK’s human rights obligations – and nor would we want it to. I doubt the readers of The Daily Express, The Daily Mail, and The Sun, et al., would genuinely wish to withdraw from conventions that outlaw torture or protect children, if they were better informed.
If the UK were to leave the Strasbourg court, and the Supreme Court had the final say on human rights, British judges have occasionally suggested that a court might decide to disapply or invalidate a statute in exceptional circumstances. The 25-year old Court of Appeal judgment, (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 which preceded the Human Rights Act, reveals that judges are not aways so obedient to the Government when it comes to interpreting basic rights – As Conor Gearty observes, ‘some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene.’ Likewise, I would imagine this would also be particularly so, if judges were aware that the safety net of an individual’s right to petition to the Strasbourg court, had been removed. The case of Nadarajah Vilvarajah and Vaithialingham Skandarajahin also reveals that Home Secretaries have felt unduly constrained by international agreements long before the Human Rights Act. Furthermore, Lord Hope stated in R (Jackson) v Attorney General, that the principle of parliamentary sovereignty ‘is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever.’ Judges are supplied with a range of remedial powers that can address legislative actions that result in a violatation of rights, without the need to turn to the common law. Political posturing over immigration and asylum law long predated the Human Rights Act, and the law was as good then as it is now.
Nevertheless, reliance upon the principals of a judge does not mean we should let Home Secretaries, such as Theresa May and her ridiculous outbursts concerning the “evils” of human rights, dictate which agreement we remain party to.
The case of Ullah has also revealed that UK courts do “no more” than Strasbourg “but certainly no less“. Judges take the view that if there is a principle arising from a consistent line of cases in the Strasbourg court that does not conflict with British law, they will follow it. Therefore, the ECHR is not as ridiculous as the tabloids, and even some politicians, would have us believe. It also completely discredits the ridiculous anti-European propaganda on this website.
Further to the principle laid out by Ullah dictum, in the more recent Supreme Court judgment, Rabone v Pennine Care NHS Foundation Trust , Lord Brown examined the extent of the UK courts’ duty to follow decisions from the Strasbourg court, and their ability to go beyond such decisions. It was decided that UK courts need not always adhere to decisions of the Strasbourg court. Where a UK court is reluctant to agree with a decision by the Strasbourg court, it is permissible to reach a different conclusion from that reached at Strasbourg, but must ensure that Convention rights are not of a lower standard than those at Strasbourg. It has also been the case that the House of Lords has not followed clear decisions of the Strasbourg court when a decision can be distinguished without it, as was the case in Animal Defenders International v Secretary of State for Culture, Media, and Sport, . It is also the case that the UK courts need not follow a decision of the Strasbourg court when not taken by the Grand Chamber, as decided by the Supreme Court decision of R v Horncastle . (However, the UK court must follow an authoritative decision of the Grand Chamber.)Arguably, Lord Brown provides the courts with greater powers than those already recognised by the Supreme Court. In Horncastle, the Supreme Court decided not to follow a decision of the fourth section of the Strasbourg court which was on appeal to the Grand Chamber; in part, due to the concern that the decision had failed to take sufficient account of English common law. Yet, a court may decide that a Convention right applies beyond the current range of decisions found in the Strasbourg court, and UK courts may also go beyond the definition of Convention rights found in decisions of the Strasbourg court, as was the case in In Re G (Adoption: unmarried couple). Where there is no consistent case law from Strasbourg, it is still open to the UK courts to develop the common law to protect human rights – note that this is a development of the common law and not a definition of Convention rights.
The case of Ambrose v Harris (Procurator Fiscal, Oban)(Scotland)  confirmed previous practices of the House of Lords, and Lord Kerr noted that Ambrose, appears to provide a stronger criticism of the Ullah dictum. The case recognised that domestic courts should have the power to define Convention rights when there was no clear decision from Strasbourg, thus suggesting not only that it should be a power of the court, but a duty. Whilst, interestingly, the case of Re P , revealed that the October 2000 Law Commission report “Damages Under The Human Rights Act 1998”, proved to be more helpful in the court’s decision reasoning, than any particular determination laid out in law from Strasbourg. (Thank you to the anonymous person on Reddit, who so kindly drew my attention to the two latter cases mentioned.)
Therefore, withdrawing from the ECHR and abolishing the Human Rights Act, would appear to make little difference. Nevertheless, leaving Strasbourg could still, arguably, leave individuals in the UK in a weaker position against the state, if their rights are breached. The UK, along with Belarus – a country with questionable human rights – would be the only two European countries to not be a part of the ECHR.
Devolution also casts a long shadow over this debate. The fact is that the constitutional landscape of the UK has altered radically since the Conservatives last won a general election in 1992. As the Bill of Rights Commission discovered, the London Parliament’s options may be limited whilst issues surrounding Scotland, Northern Ireland and Wales remain unresolved. Devolution makes the repeal of the Human Rights Act far less straightforward. A major issue is that both the Scottish and Northern Irish devolution settlements were intended to have the ECHR woven into their constitutional fabric from the outset. Thus, withdrawal from the ECHR could prove problematic to say the least.
The key question is whether withdrawing from the European Court of Human Rights will solve the problems that the Conservative party – particularly the tabloids – have identified. The answer is ‘no’. However, given the unjustified British fear of European influence, an obsession with the expulsion of foreigners, and the rise of UKIP, the electorate are more than likely to disregard common sense.
Thus, I will ask the people of Britain this question: With regards Convention rights, which of our rights do we really wish to discard? The late Lord Bingham once stated:
“The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.
Let me briefly remind you of the protected rights, some of which I have already mentioned.
The right to life.
The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.
The right to liberty and security of the person.
The right to a fair trial.
The right not to be retrospectively penalised.
The right to respect for private and family life.
Freedom of thought,conscience and religion. Freedom of expression.
Freedom of assembly and association.
The right to marry.
The right not to be discriminated against in the enjoyment of those rights.
The right not to have our property taken away except in the public interest and with compensation.
The right of fair access to the country’s educational system.
The right to free elections.
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?
There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, those who need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.”
I think Lord Bingham hits the nail most pertinently on the head.
As for leaving the European Union, that is a different matter altogether.
There is much uncertainty on that matter, and the truth is that there really are more questions than answers at this stage, and many of the arguments for/against are purely speculative at the moment. If the UK were to withdraw from the EU, what would happen to foreign direct investment? How much of the regulatory burden currently imposed would we maintain if free to reverse it? How would the gross contributions be used if made available to the UK government? Would there be a mutually beneficial free trade agreement, or would the political fall-out from an exit lead to irrational protectionism? As Iain Begg at the London School of Economics stated to Channel 4: “If Mr Cameron said to the EU: ‘I’m taking my ball home, I’m not playing with you any more’, there would be some kind of revenge. That is what we would do if it were the other way round.”
What is desperately needed before any conclusions can be drawn, is a full blown cost-benefit analysis conducted by the UK government, using relevant counterfactual scenarios. It is somewhat surprising that the UK government has never commissioned a cost-benefit analysis of the UK’s continued membership. Might this be yet another indication that the Government is not really intending to withdraw from the European Union, but is merely playing the electorate?
Memo to the editors and publishers of The Sun, The Daily Mail, The Daily Express, Telegraph: Inform your readers; do not confuse them further.