Hardly a week goes by without a newspaper article appearing over some decision forced on the Government by the Strasbourg courts. But is the reputation that the ECHR holds in this country justified?
In a substantial piece of research released today for the TaxPayers’ Alliance, we review the impact of the Court on the UK since it was set up. This has meant assiduously going through every case involving the UK, and determining what changes followed. We’ve identified wherever possible the laws that needed amending or adding, and the official costs that were attached to them.
As a result of this herculean task, our finding is that there has been a remarkable price tag involved (you’ll find the abridged figures on pages 15-17) – £17.3 billion in total to date, which includes one-off and time-limited costs but excludes the role the Court has played on the development of the country’s compensation culture. Worst, the problem has been accelerating, notwithstanding attempts to bring the problem under control (or more accurately, bury it).
Simply by looking at the numbers of laws that were changed, it is as clear as an Oregon lake that the friction between Strasbourg law and the UK courts continues to shudder like a Californian fault line. But like the San Andreas, something has got to give.
The ECHR is a bolt on to the British legal system. For as long as its input was numerically limited (up to the 1980s), and dealt with clear-cut issues of life, limb and liberty rather than perceptions, interpretations and feelings, this was not a major issue. But the Court has greatly drifted from its original intent. It is no longer the watchdog of totalitarianism, the barrier to the 3am knock or the handcart deportation. It has become a social motor, and one with a huge bill attached.
However much you might approve of any individual ruling, the best place to achieve social change is surely through the approval or at least consent – as opposed to the bypassing and indeed the alienation – of the country’s directly-elected representatives.
Perhaps most remarkable of all has been the way that our politicians, having readily admitted that there is a problem, have signally failed to solve it. As we explore in the paper, the Human Rights Act 1998 resolved one set of issues (the lack of inherent remedy) by generating a new set of systemic ones and effectively trying to drive the problem underground. Dominic Grieve’s past proposals disappointingly appear set in exactly the same frame, adding a regulator that’s unattached to the generating crank shaft. This has been a troubling policy retreat from David Davis, who looked potentially set to achieve something both meaningful and lasting.
Unless the very manner of Britain’s participation in the European Convention is directly addressed, Strasbourg rulings will continue to override basic Common Law principles; domestic rulings will be overturned; the British judge in Strasbourg will occasionally issue a frustrated dissenting opinion; and the public will increasingly feel cheated and alienated. That in turn leaves only one solution – the UK has to come out of the founding treaty, perhaps either to re-enter with new caveats, or if deemed necessary (which is highly questionable) creating a stand-alone national human rights appeal process designed around exclusively domestic law.
Some pretend that such a move would be bad form. Well, £17 billion is too high a bill in order for this country ‘not to set a bad example to Belarus by withdrawing’. When Minsk finds its archived copy of Magna Carta, it can with a free conscience join us.
Canada and the United States have gone out of their way to stay clear of pan-American human rights laws and institutions. There is no Oceanic Convention on Human Rights, and yet Canberra and Auckland seem to manage without having fallen into dictatorship. The UK’s legal systems don’t need Strasbourg. They need politicians who admit to a problem and apply the remedy. Until they do, they are muttering platitudes into the wind.