In 1946 at the University of Zurich, Churchill spoke of the ‘tragedy of Europe’, of how from such a fountain of the Christian faith and ethics, had sprung a series of frightful, nationalistic quarrels which had wrecked the peace of Europe and the prospects of mankind. It was the indignity suffered by millions during two world wars that prompted European leaders to found the Council of Europe and the European Convention on Human Rights (ECHR).
There is nothing controversial in the Convention. The right to life, liberty, security, fair trial, privacy, expression, property, free elections and other fundamental rights, are ones we can all presumably subscribe to. The hand of judicial activism may occasionally be felt, but on the whole the Convention can be credited for sweeping away some obvious malpractice and omissions in English law.
Two notable examples are the cases of Golder v. United Kingdom (1975), and Malone v. UK (1984). In Golder the Court ruled that it was a breach of Article 6 for a prison governor to intercept and prevent letters from an inmate reaching his solicitor. As a consequence the Prison Act (1952) was amended to require governors to pass on letters to legal counsel.
Prior to Malone v. UK (1984), whether to allow phone tapping was broadly left entirely to the discretion of the Home Secretary. However the ECHR ruled that this was an insufficient safeguard and that the law must be “sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to private life.” Quite a relevant quote given today’s issues!
Some outcomes will be more controversial, such as the ruling (which causes many of us difficulty) in Hirst v United Kingdom (2005), where the ECHR ruled that a blanket ban on prison votes contravened Protocol 1(3) of the Convention. However, it should be remembered that even this decision is less controversial than it sounds. The Court has not said that all prisoners should vote, but that signatory states enjoy a "margin of appreciation" on the issue and that it is in fact perfectly legitimate to place proportionate limitations on prisoner’s right to vote. The judges did not dictate to the UK how a "proportionate" British ban should operate but instead used the phrase, "as the government considers appropriate".
The Human Rights Act 1998, which incorporates the Convention into domestic law, draws the Judiciary’s attention to omissions in the law without cases having to go all the way to Strasbourg. In Ghaidan v. Godin-Mendoza (2004), same sex couples were granted the same status as unmarried heterosexual couples under the Rent Act 1977. If one partner dies a lease will now continue under the other’s name.
The cases I have mentioned above, though there are many others, turn on civil liberties such as the right to privacy in Golder, the protection of minorities in Ghaidan, the right to fair trial in Malone, and the right to free elections in Hirst. These are not absolute rights, but contingent. They are, if you like, presumptions that we can start from. In fact, Convention provisions are typically followed by a clause allowing governments to derogate from the main provision in an expansive range of circumstances. In doing so it simply places constraints and conditions on the discretion of ministers.
Such basic rights, upheld by the judiciary, are commonplace in many western democracies. It resolves the weakness inherent in majoritarian government, whereby civil liberties can be easily eroded by an executive. Herein lies the contradiction in David Davis’s position as both champion of civil rights (which I applaud) and denouncer of ECHR judgments.
In fact, the prisoner votes issue draws out this difficult contradiction. Once convicted, prisoners keep certain civil rights and lose others. For example they retain freedom of expression (for instance the right to communicate with journalists) but yet lose the right to vote. What prisoners can and can’t do is in effect down to the discretion of ministers, which by its nature the European Convention tries to place legal constraints and conditions on. David Davis and others may powerfully argue that these constraints should emanate from debate in Parliament, but as we well know from the authoritarian measures of the Blair government, abuse of a Parliamentary majority by the Executive can be almost unstoppable. The Convention as well as Parliament has a role in counter-balancing the over-mighty Executive.
There has been a lot of shrill and frankly easy to make criticism of the Justice Secretary of late, together with allegations that the Coalition aren’t being tough enough with “Europe” (I suspect many blur the distinction between the European Convention and the EU all too readily).
Yes there have been mistakes, yes the Judges may on occasion in the eyes of many, exceed their brief but it is unfortunate that there is not just a little less heat and a little more fact in this debate. The Justice Secretary is in the invidious position of trying to implement Judgments that he is not responsible for and which are a little more complicated than the space of a tabloid headline allows. Likewise, the Convention is separate from and predates Britain’s membership of the EU – this small ‘detail’ is often lost in translation.
Whether we end up with a new British Bill of Rights or not, very few are seriously suggesting withdrawing from the European Convention as part of these arrangements. On balance the European Convention has done much that is good and is a cornerstone of the range of measures that safeguard our freedoms.