The recent ruling by the European Court of Human Rights (ECHR) requiring the UK to allow prisoners to vote has caused many people to cast serious doubts over whether the UK should remain a full member state of the Council of Europe, and at the very least whether it should seek to renegotiate its relationship with that organisation and the UK's binding commitment to comply with all the judgments of the ECHR. In the early years the Court's opinions were merely advisory.
I have long questioned the Council of Europe's relevance and meaningful contribution to the maintenance of democracy, human rights and the rule of law in Europe. This latest ECHR ruling has persuaded me that maybe it is time for the government to consider whether the benefits of full Council of Europe membership outweigh the costs. Is it really in our national interest to be part of this organisation. What benefits do we get and what would leaving actually mean?
The UK was a founder member of the Council of Europe, which was established in 1949 and now has 47 member states. Undoubtedly the organisation played an important part in consolidating democracy in
post-war Western Europe and then again after the fall of the Berlin Wall. However, it is no longer treated that seriously as an international beacon of democracy and human rights, having enlarged beyond Western
Europe and admitted countries with only a superficial commitment to democracy and a poor human rights record. Indeed, for many years in the 70s and 80s the Council of Europe tiptoed around the issue of the poor human rights situation in prisons in Turkey, which joined the Council of Europe in the same year as the UK.
Moreover, the EU is now a vastly more powerful and significant global player and even bizarrely has its own Fundamental Rights Agency in Vienna, which competes directly with the Council of Europe and thus duplicates effort and expense, given that all EU member states are also in the Council of Europe. The EU budget is roughly 100 billion Euros yearly whereas the Council of Europe in stark contrast is around 200
million Euros yearly.
The ECHR is an institution of the Council of Europe and as such has one judge from every member state. The only thing that can be said in the judges' favour is that parliamentarians from the national parliaments of the Council of Europe member states, sitting in the Parliamentary Assembly to the Council of Europe, have to ratify their appointment (a role that I have long advocated should be assumed by Westminster for our Supreme Court judges).
In principle, parliamentary scrutiny of member states' nominations of ECHR judges should weed out overtly political appointees with little juridical experience or legal qualification. However this still means, for example, that a Russian judge can tell the British government to give prisoners the right to vote, to release sex offenders convicted from written testimony rather than open evidence in court, to allow known security threats or wanted terrorists to remain in the UK if they potentially face torture or the death penalty on being returned to their countries of origin, or even to allow non-UK nationals convicted of crimes to remain in the UK if they have a child born in the UK.
It is therefore richly ironic to read this week that the judge in the Khodorkhovsky trial 'took orders from above' (ie. from the Kremlin) to extend his prison sentence. It's also worth pointing out that for years Russia blocked efforts by the ECHR to process the court's huge backlog of cases – 27,000 of which have been submitted by Russian citizens – and only relented when the Council of Europe agreed that Russian judges would always be included in reviews of potential cases against Russia, that the court would not begin
investigating complaints before cases were formally accepted, and that the court would not have any new powers to enforce rulings.
This week in the European Parliament MEPs debated the alarming deficiencies in the rule of law in Russia. I reiterated my belief that it is now time to consider re-examining Britain's relationship with the Council of Europe. However, opponents of such a step said to me that it would be impossible to withdraw from the Council of Europe without also withdrawing from the European Union. I am extremely doubtful as to whether the EU can legally bind its members to be also members of an entirely separate treaty-based international organisation. I have tabled an urgent parliamentary question to the EU Council and Commission (for their legal experts to examine) seeking clarification on this matter.
The question also asks whether the EU, if it becomes a party to the European Convention on Human Rights – a move I oppose – would be bound only in respect of its own institutions or also its member states and their domestic legislation – a stricture that most Conservatives find unacceptable and irritating.
The overwhelming vote at Westminster against the ECHR's judgment presents a direct challenge to the coalition government. It has also reminded us all that ultimately the UK Parliament is sovereign when it comes to deciding whether or not Britain should be part of a supranational entity – and yes, that includes the EU too, the right to secede from which is clearly spelt out in the Lisbon treaty.
Although this House of Commons vote was not directly about membership of the Council of Europe, it served as a pretty useful indication of what MPs across all parties think of the organisation and the judicial activism of its institutions, which have gone way beyond their original remit to prevent another Nazi-style tyranny from persecuting European citizens.
Finally, a thought on what should happen to the Council of Europe. In my view the Organisation for Security and Cooperation in Europe (OSCE) is potentially a far more effective global promoter of democratisation and human rights than the Council of Europe. The OSCE has the added advantage of a vastly wider geographical remit. The OSCE also does not have a court to hand down intrusive judgments, though it does have a parliamentary assembly which, through its seconded national parliamentarians, can raise matters of concern regarding human rights in other member states, as happened over Uzbekistan.
The OSCE does good work in mediating the frozen conflicts in the Caucasus and monitoring elections across its territory through a specialised agency based in Warsaw- the Office for Democratic Institutions and Human Rights (ODIHR). The OSCE has the added advantage of incorporating non-European countries including the United States, Canada and the Central Asian republics, as well of course as Russia.
Maybe the Council of Europe should merge into the OSCE – which could then be based in Strasbourg and use the European Parliament premises, allowing MEPs finally the chance to vacate the building and end the waste of money of the Parliament's monthly Strasbourg sessions. It would represent a vast saving to the UK taxpayer and the UK would regain control over considerable areas of national sovereignty. We would thus solve several problems all at once!