BLS LLB students write for our blog – here, Karim Maksood discusses the uneasy relationship of the UK with the ECtHR, in the light of David Cameron’s criticism of the way in which the Court operates

Following on from our first student post discussing the Stephen Lawrence case, we’re delighted to add this very topical post:

It is often a staple of dire economic times that some nations abandon the far-reaching aspirations they conceived when money was no object, and begin looking increasingly inwards. On 25th January, David Cameron put to the Parliamentary Assembly of the Council of Europe in Strasbourg the case for reform of the way the European Court of Human Rights (ECtHR) operates. He argued that, too often, the Court undermined decisions at a national level, which needed to be “treated with respect”, and that it “gives an extra bite of the cherry to anyone who is dissatisfied with a domestic ruling, even where that judgment is reasonable, well-founded, and in line with the Convention (on human rights)”. It ties into a general climate of dissatisfaction with the role played by European authorities in UK decisions, in which the government has contemplated withdrawing from the human rights convention entirely. His criticism comes after the ECtHR overruled the UK government’s decision to deport radical Muslim cleric Abu Qatada to answer terrorism charges in Jordan, in light of fears over his treatment there. It proved a strange and unpopular view to take, attracting little support from the other delegates and provoking the anger of Court’s president, Sir Nicholas Bratza QC, who questioned the credibility of the claims. Although Mr Cameron was, perhaps, bound by the ties of stubborn Tory backbenchers and populist media campaigns, he, nonetheless, appears dangerously ignorant of the legal benefits that the European Convention on Human Rights, and the ECtHR as its enforcer, accord to us all, and of the concessions that each contracting state must make in order to achieve its objectives.The Conservative complaint is that decisions given by the ECtHR may reverse those made by UK courts, attacking certainty and sovereignty. Setting aside, for the moment, the notion that sovereignty may be an impractical ideal that is increasingly at odds with our inter-connected world, this seems to ignore both the reality of the situation and the significant measures taken to protect these values. The Human Rights Act 1998, for example, incorporates the European Convention on Human Rights into UK law, with the exception of the right to an effective remedy under Article 13. This limits the extent to which European reasoning is able to interfere with domestic issues since, if a public authority decision is held by the ECtHR to be incompatible with the Convention, it is, nonetheless, the prerogative of Parliament, and no other national or foreign body, to address it. Even in the absence of such a proviso, many of the rights conferred under the Convention are subject to derogations on the grounds of public policy.

The efforts made by the Court itself to protect sovereign interests are more significant. The ECtHR is only engaged when all national appeals have been exhausted, and only then once the particular case has been assessed as admissible at an interim stage. The result of this rigorous processing is that 97% of UK cases are dismissed at the outset. In hearing the minority of cases that do come before it, furthermore, the Court has a track record of respecting decisions made at a national level as being within the member state’s margin of appreciation, often at the expense of human rights reasoning itself. In B v UK (2000), the Court held the United Kingdom’s law on parental responsibility, which confers this privelage upon married mothers and fathers but not unmarried fathers, not to violate the applicant father’s right to freedom from discrimination under Article 14. The Court also declined an opportunity, in Goodwin v UK (2002), to trigger change in our laws on marriage in ruling that the prohibition of marriages between members of the same sex was similarly compliant with the Convention.

In this light, the Prime Minister’s stance on both the ECHR and ECtHR seems reactionary and uninformed. A better argument, perhaps, would have been that the involvement of the Court brings with it an entirely different mode of reasoning from that used under UK law (despite, technically, the ECHR now making up a part of this law). This might create a confusing saturation of legal approaches to cases in which the national system ultimately loses out. Evidence of this actually happening, however, is scarce.

The Conservative view would also ignore the substantive rights and benefits we, as citizens, enjoy under the Convention on Human Rights, many of which have no adequate equivalent in UK law. Article 8, for instance, has been instrumental in the development of a consistent and reliable law on privacy, and one that is balanced against the right to freedom of expression under Article 10, as cases such as Ashworth Security Hospital v MGN Ltd (2001) show. Every person’s right to habeas corpus, due process under the law, is bolstered by the Article 6 right to a fair trial. Article 14, finally, is frequently invoked to protect the interests of minority groups and other affected parties who may be discriminated against in some decisions. Without this support, the pace of change with parliament alone at the helm would, quite simply, be too slow. It is a founding principle of the Convention that the rights provided under it are applicable, and available, to all, be it an innocent party or one considered a threat to public safety. As such, a decision reversed by the ECtHR is not being attacked, but corrected. Mr Cameron would be wise to remember that the Convention, in its preamble, calls for “greater unity” between member states, which must require that purely domestic concerns are set aside in order to ensure that human rights are enforced effectively and equally in all jurisdictions.

Fox-Harding (1998) notes that reduction of the state and non-interference in domestic affairs are hallmarks of Thatcher-era neo-conservative policy. The problem, on this occasion, is that this thinking would deprive us of the effective recognition of many fundamental freedoms. A national substitute system, furthermore, is unacceptable if it is to be influenced by party interests. Decisions concerning Abu Qatada and, similarly, those touted by home secretary Theresa May last year may convey an image of human rights reasoning as meddlesome, inhibitive and open to manipulation by applicants. The importance of human rights to all people, however, must transcend any knee-jerk political reactions.

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