The idea of leaving the European Convention on Human Rights is a complex and multi-faceted one. As an instinctive opponent of putting what amounts to sweeping political power in the hands of judges, I am indebted to some of the commenters on my last article on the subject for helping me understand the nuances involved.
I was originally going to write today about why I believe that the current ECHR arrangements are undemocratic and why this is a problem, but that article is growing into an essay and so I shall leave it for another time. Likewise the implications for devolution are both complex and perhaps better suited to Wednesday’s column.
But one aspect of the current commentary that does need to be called out and held to account is the idea that quitting the ECHR – and its carbon copy domestic legislation the Human Rights Act – amounts, in and of itself, to a weakening of our commitment to human rights.
You can see this argument advanced in several quarters. Sadiq Khan has suggested that the scrapping the HRA would put Britain on a par with Belarus. Writing for the Telegraph Peter Oborne posits, slightly hysterically, that quitting the ECHR means Britain has taken a step “towards joining the Chinese, Russian and Saudi Arabian regimes as a diehard opponent of the rule of law.”
Both of those statements suggest the author knows less than they ought either about life in the UK prior to 1998 or life in any of the countries they are comparing it to. They are both also rather strange over-reactions. Nobody in Conservative Party is proposing to abandon the concept of human rights – what is being proposed is rather a change in how those rights are defined, implemented and adjudicated.
Why should this be so remarkable? After all, human rights have no empirical existence, and possess no essential nature which they would hold regardless of subjective attitudes towards them. The very existence of human rights, like the remarkable growth in their scope and detail, is the product of human beings making subjective judgement calls. This is not for a moment to imply that human rights were bad decisions to make, but they remain choices, not facts.
The upshot of this is that deferring to human rights judges the way we defer to scientists in their specialist fields does not make sense. Human rights have no objective nature for judges to be expert in or impartial about. When a judge brings human rights into a new area of decision making – which Strasbourg has made a habit of – they are essentially saying “I think this ought to apply here”.
That isn’t a legal judgement but a moral one, and the judge is just another human being, prejudiced by outlook and circumstance as we all are, lending their subjective opinions the force of law. As the president of our own Supreme Court has said, open-ended rights legislation effectively gives judges substantial law-making powers.
This is not something they are any more qualified to do than any other reasoning citizen, which is why in modern times we have expected people who wish to legislate to get us to vote for them. Given that, why should the ultimate authority in such matters not be our elected representatives, rather than the tiny, unrepresentative, and wholly unaccountable group of individuals who happen to have climbed to the top of the legal profession?
You can probably make reasonable, technical cases in both directions, but that doesn’t explain the disproportional response to the prospect of leaving the ECHR, and the attendant assumption that we cannot behave ethically outside it. When I was debating the proposals on the radio (2 hours 20 minutes in) John Pienaar asked me if a UK that left the Convention could ever lecture other countries for their own human rights violations.
Why is there the assumption that not being a member of the ECHR immediately puts you on a par with people actively infringing their own citizens’ human rights? The assertion is ridiculous, and not just because, as Mark Wallace has pointed out, an ECHR that includes Russia and Azerbaijan but not Canada cannot claim to be the benchmark by which one’s human rights credentials are measured.
There seems to be a strange tendency in modern international relations to place a higher value on being loyal to international institutions nominally intended to do good than being loyal to the good they were intended to assist.
This is not only evident amongst people who appear unable to disentangle membership of the ECHR from the broader concept of human rights, either. It was also on display when Ed Miliband insisted on a UN resolution before allowing the British military to attack ISIS in Syria – and never mind that in practise this meant giving Vladimir Putin a veto over Britain’s ability to act.
The UN is a club whose membership stipulation is “being a country”, and there are more than enough examples of ‘bad countries’ (many marshalled above by opponents of quitting the ECHR) to demolish the notion that it is thus well-equipped to be the arbiter of moral action. Any pretensions on the part of the ECHR that membership is a benchmark of ethical behaviour are similarly rubbished by a quick glance at its signatory list.
What matters is not the institutions we’re in but the actions we take: it is perfectly possible to “pull a Canada” and be a responsible guardian of our citizens’ human rights outside the Convention, just as it is possible to intervene ethically in another country in defiance of the UN. You’re welcome to believe it to be a less preferable course, but can we please stop pretending that quitting the Convention will turn the UK into one of the world’s serial human rights abusers, and that a collection of legal professionals are gifted by its aegis with some greater insight into essentially subjective moral questions than the rest of us.