The recent ruling by the European Court of Human Rights (henceforth ‘the Court’), upholding Austria’s decision to charge somebody for insulting Islam, poses an interesting quandary to its regular critics.
On the one hand, it has upheld what a great many liberals and conservatives alike consider to be an absurdly restrictive judgement. It may not (quite, yet) have imposed an Europe-wide blasphemy law, as sometimes suggested, but it has upheld Austria’s.
But on the other, those whose overweening concern is with democratic accountability and national sovereignty, and therefore oppose the imposition of law by a transnational judiciary, cannot without great care demand that the Court ought to strike down Austria’s laws when we don’t like them.
That is not to say that it is not, in its own right, a “lamentable judgement”. That is the view of Matthew Scott, who has explored the issue in some detail over on his blog. In summary, the Court has read into the Convention a right which the latter does not contain: namely, an extensive right for religious persons not to have their feelings offended.
Moreover, Scott argues that the Court is actually suggesting – at a time when blasphemy legislation is falling across the continent, most recently in Ireland – that signatories of the Charter have a duty to “criminalise “improper and abusive attacks” on objects of veneration”.
Needless to say, there is a world of difference between protecting the right to confess and practice a faith, and demanding that non-adherents ‘respect’ that faith – and it looks as if the Court has substantially broadened the scope of the right to religious conscience as originally codified.
This gets to the root of the problem for Court-sceptics such as myself. Austria, as a sovereign country, has a right to pass lamentable neo-blasphemy laws if it so chooses. If we are to have a trans-national legal regime then it is probably better, at least as default, that this is flexible and allows states leeway to pursue their own path as much as possible.
But in justifying their ruling the judges appear, if I read Scott’s analysis correctly, to be setting precedents which could well lead to impositions on other nations at a later date. If it becomes established that religious persons have a right not to be offended, it will fall on other states to uphold that right. Where Austria leads, other may have to follow.
Of course, Theresa May has backed away from her earlier enthusiasm for withdrawing from the authority of the European Court of Human Rights. But incidents such as this, where rights law starts metastasising and threatening to impose fresh obligations on democratic governments without any popular mandate, remind us why our relationship with it is something which future, post-Brexit governments may need to revisit.