Famed for its historic Grand île city centre and towering Gothic cathedral, Strasbourg sits at the crossroads of German and French speaking Europe. Post-war geopolitics and the determination to lock together the historic foes of Germany and France saw the city home to many of Europe’s post-war institutions including the European Parliament and the Council of Europe. Also based in the city is the European Court of Human Rights – the guardian of the European Convention on Human Rights – which celebrates its 60th birthday this very month.
In the immediate aftermath of the Second World War, Europe’s political leaders saw the Convention as protection for the people of Europe from a repeat of the systematic abuses of human rights which took place in the 1930s and 1940s. Britons were instrumental in writing the Convention and establishing the Court. None of what has happened over the last sixty years would have been possible without the vision of towering figures like Labour’s Foreign Secretary at the time, Ernest Bevin, and later Tories like Winston Churchill and David Maxwell Fyfe.
But six decades on and our relationship with the Court is facing a crisis of confidence. To say the Court has a public image problem in the UK is an understatement. There’s unlikely to be much fanfare for the 60th birthday celebrations. Instead, Strasbourg for some has become synonymous with foreign meddling, overriding the wishes of domestic politicians. Critics accuse the court of seeking to impose their version of European human rights on the UK, and that it increasingly strays beyond its remit to uphold the law, into lawmaking. And that unelected judges are placing criminals and terrorists ahead of the law-abiding majority.
In fact, we have got to a stage where some even question our continued membership of the Convention. Much of this antipathy comes from the Tory right. In fact, any Government minister seeking to burnish their right wing credentials can do so by putting outright withdrawal from the Convention "on the table" at the next general election.
In light of these developments, I was determined to visit the Strasbourg court, talk to the officials and the judges, and to see firsthand whether the criticisms have any basis. With my Shadow Minister colleague Wayne David MP, himself a former MEP, we asked the difficult and probing questions. In short, we didn’t find any sinister plot to undermine the British legal and political system. Instead, we came away with an enhanced respect for the institution, recognising that some choice reform would be worthwhile, but generally concluding the caricatures unfair and ill-informed.
Negotiating the final few streets in the journey to the court really brings home the seriousness of the work it undertakes. You pass a serious of semi-permanent encampments of Chechens, Georgians and Kurds carrying placards alleging abuses of their human rights. And the protestors are also a reminder that this is no ordinary court. You won’t find trials dealing with petty thefts, speeding offences or murders. Instead, the Court protects the right to a fair trial, against torture or inhuman treatment, a right to life, and the right to privacy.
The Court is also unique in that all 800 million citizens of the 47 member states have the right to take their case to Strasbourg. This means that everyone from the Atlantic coast of Ireland to the Bering Straits of Siberian Russia, regardless of location or of personal circumstances, can apply to the Court if they feel their rights have been violated. Witnessing the arrival of the day’s mail is testimony to the sheer amount of correspondence the court receives. It’s no wonder that the post room is referred to as a stamp collector’s paradise by those working at the Court.
In fact, the mail on the day of our visit included some correspondence on allegations against the UK. Last year, there were 29,000 applications to the court from Russia, 9,000 from Romania, 17,000 from Turkey and over 13,000 from Poland and Ukraine. These countries accounted for almost half of all violations – more than 400 – in 2012. In comparison, there were over 3,000 applications from the UK; in just ten cases, the country was deemed to have violated human rights. In over 99 per cent of cases from Britain, the applications were dismissed as invalid or there was no violation.
Britain's record and impact
Some, of course, take our near impeccable behaviour as a green light for withdrawal, citing our membership as being unnecessary. I’ve heard people question why we are the member of an institution whose protections are for things we in the UK don’t need to worry about. But if you apply that logic to the membership of any club, then you’d walk away from any organisation whose rules you don’t break. It’s incoherent nonsense. After all, you wouldn’t leave a golf club just because you always abide by the rule there’s no denim allowed in the bar!
Instead, membership and abiding by the rules provides moral leverage to come down hard on those members who break them. But for this to work you need to believe in the collective nature of an organisation. This is an area where I fear the UK’s contract with Strasbourg is breaking down. Siren voices either don’t believe our membership makes a difference to human rights in other countries, or aren’t interested in how we can raise the standards of human rights abroad. This is a grave mistake, and ignores how influential our moral standing can be over other countries. Reinforcing this, I heard from speaking with judges from other countries a very genuine fear that if the UK walked away, there would be a backsliding on human rights in those countries with already challenging records in this area.
Unfortunately, for some, the Government's attitude towards Strasbourg is caught up in a much wider malaise in our relationship with Europe. For many on the right, looking over their shoulder at UKIP, survival politics means attacking all things Europe. The Convention is seen as a foreigner’s charter, alien to British legal and political traditions. But this ignores the very Britishness of the Court and the Convention. Visiting the Court itself demonstrates this British influence. Immediately outside the court is a road named in honour of Ernest Bevin. Until recently, the President was a British judge and, in total, we have had more presidents than any other country. A British judge sits on every case involving the UK. Even the building was designed by British architect Richard Rogers. It’s simply incorrect to paint this as an alien institution seeking to impose its influence on Britain.
Opposition to the Convention – the modern Tory party
But I actually believe the Tory opposition to the work of the Court goes much deeper, and is directed at more institutions than just Strasbourg. They hanker after a world in which the UK can act unilaterally to exert its influence, ignoring that the world has changed. Nowadays, we don’t rely on gunboat diplomacy – instead, our power and influence is exercised through international relationships, treaties and agreements. Only through these can we use our moral leverage over others.
Nowhere is this more important than in human rights. William Hague is one of the few senior Tories who seems to get this. Promotion of human rights is central to the current Government’s foreign policy and Hague himself said “there will be no downgrading of human rights under this government”. But he’s in a minority in the modern Tory party.
Instead, the Tories have become a majoritarian party. Insulating governments from pesky citizens, campaign groups and civil society who have the audacity to hold them to account is now the prevailing orthodoxy that has permeated the political right. Reining in human rights is in the same bracket as their curtailing of judicial review, cuts to legal aid and weakening of freedom of information. As a result, key constitutional checks and balances are eroded, leading to bad decision making, and an ever more powerful Government. The Tories desire the unfettered ability to do as they please, sometimes even regardless of the law of the land. We witnessed this recently with the siren voices that urged Theresa May to ignore the rulings of the Strasbourg court. Quite how the party of ‘law and order’ has got itself into such a tangle is beyond me.
And I don’t get it, because the ECHR, as part of this family of constitutional checks and balances, ought to be supported by the Tories. The party’s inherent mistrust of the state should favour mechanisms that hold that power in check. If you push Tories to say which of the rights they don’t like, they are stumped. They like to point to their “inability” to deport men like Abu Qatada as a threat to national security, yet a more important reason is administrative failings at the UK Borders Agency. As ever with the Tories, ‘Europe’ is used as a convenient smokescreen for their failures at home.
But it’s also becoming clear that the Tories particularly don’t like judges holding them to account in the UK, let alone those in Strasbourg. Just look at their assault on judicial review, which the Tories deem as unnecessary red tape. Judges overruling politicians is a more common occurrence in Europe, where courts are the guardians of constitutions. But here in the UK, parliament has the final say. Our primary legislation cannot be struck down by judges, something that makes us quite unique in the democratic world. So, whenever cases are lost in the courts, it is a prickly issue. Add in a European angle with a defeat in the Strasbourg Court, and it’s a real toxic cocktail for those on the right.
But the air of superiority that surrounds some of the right’s disdainful attitudes towards Strasbourg is dangerous. While the UK has an excellent track record, human rights abuses do still occasionally occur. We have lost a smattering of cases over the decades. Our own domestic courts aren’t always guaranteed to step up to the plate to protect our citizens’ rights – hence why Strasbourg, as a court of last resort, continues to play an important role. In a liberal democracy, the ballot box alone is not always enough to protect the rights of minorities and marginalised groups.
And recent rulings show that minorities and marginalised groups aren’t just about terrorists and criminals, as some would have us believe. When British Airways prevented employees from wearing crucifixes at work, the court ruled their rights had been violated. In 2009, protection for journalistic sources was reaffirmed when the Financial Times challenged a decision ordering them to deliver up a leaked document.
Not all cases are successful. Max Mosley lost his 2011 case when he claimed his right to a private life was violated by the News of the World publishing details about his sexual activities. And, more recently, animal rights groups unsuccessfully challenged the UK’s ban on political advertising on TV and radio.
The fact of the matter is that courts make judgements that we don’t always agree with. After all, it would be a weird world if judges only ever made decisions that politicians wanted to hear. That’s not what having an independent judiciary is about. There’ve even been judgements that supporters of the court like me have disagreed with. I don’t believe that prisoners should get the vote. But the difference is that I don’t want to walk away from Strasbourg as a result. I take a more holistic view of the benefits of our membership, and look at the court’s judgements across the full range of issues on which they rule.
Room for improvement
That’s not to say that every minutiae of the court is working as well as it could. After all, before the Berlin Wall fell, the Convention had only 22 members. By 2007, every one of the 48 countries in Europe – bar Belorussia – were signatories. This expansion swept up the ex-communist countries of Eastern Europe and the former Soviet republics, countries with little or no living memory of democracy and legally protected citizen’s right. Creating independent judicial systems and a rule of law free from political interference was a huge task for these new democracies. As a result, there was a snowballing in the numbers of cases brought to Strasbourg by the citizens of these countries for alleged violations of their rights.
The court was swamped. In 2012 alone the court received 65,000 new applications – and that’s just counting applications with all the correct paperwork and completed forms. Compare that to 2000 when just 10,500 new applications were tabled. It’s hardly surprising a large backlog of cases accumulated, something the critics point to as a failure of the Court. Of course you can take it another way, and see it as a sign of its success. But either way, the length of time it took to bring cases was eroding confidence in Strasbourg, and playing into the hands of those who sought any opportunity to undermine the Court. Back in 2010, in Interlaken, welcome changes were agreed that would allow more efficient ways of dealing with cases. As a result, the backlog fell by 23,000 cases in 2012, with the likelihood of further reductions over the coming months.
But some also question the quality of the judges themselves. Some denounce Strasbourg’s judges for being unelected. But this is a ridiculous accusation given our own domestic judges are unelected (and rightly so), yet those in Strasbourg are actually elected. And Tory MPs, who are often those levelling this accusation, should know better. It was Tory MPs on the Council of Europe who manipulated the voting to block the widely perceived best UK candidate in the recent contest. That being said, there’s some valid criticism of the quality of the judges, and their understanding of the unique legal circumstances in individual members. Tackling this should be a priority if the court is to continue to thrive, a message I conveyed to the President of the Court and his senior officials.
One of the other criticisms levelled against the court is that it is now making judgements in areas never originally envisaged. For example, Chris Grayling’s regularly claims the convention was meant to be about gulags and concentration camps, Hitler and Stalin. But this ignores that the Convention is a living, breathing instrument, evolving since 1953. If Chris Grayling really believes what he says, then he no doubt disagrees with the Court’s rulings on discrimination based on sexual orientation, or on abuses of privacy by phone hacking or the maltreatment of HIV sufferers. None of these could ever have been envisaged back in the 1950s, but are judgements that have raised the standards of human rights across the continent.
Even the case of Abu Qatada – possibly the most toxic recent issue – has seen a positive legacy. Our standard of human rights in Europe has now been exported to Jordan. Their constitution has been amended so that evidence obtained by torture is no longer admissible in court. This can be looked on as a remarkable achievement, achieved within the rule of law, and with Abu Qatada deported (albeit far too slowly) to face trial.
And the Government’s own independent adviser on terrorism legislation, David Anderson QC, recently praised the Strasbourg Court as having moderated the “more objectionable” aspects of UK anti-terror laws without decreasing the public’s safety in any way.
Those who remain committed to the ideals of the Convention face challenging times. Many on the left ally themselves with human rights causes across the globe, and buy in to the internationalist and collective way the court works. There is a recognition that constitutional protection for the rights of minorities and the marginalised is needed even in democracies – the ballot box is, alone, not enough. We should be proud of these constitutional checks and balances that prevent abuses of our citizens’ rights. Instead of undermining them, we should be defending them.
I came away from my visit to Strasbourg determined and heartened at the same time. Determined that we must do more as politicians to show how important our ongoing, constructive role in the Strasbourg Court is to protecting the rights of ordinary citizens against abuses of power by the state both at home and abroad. That we must stand strong against those determined to undermine one of post war Europe’s finest institutions, and one which Britain should be very proud.
And I’m heartened at the same time that we are still looked up to by so many in Europe as standard bearers for human rights. Our moral authority is still considerable, and many are still enormously grateful for the vision we as a country showed back in the 1950s in establishing the Convention and the Court, helping to spread British human rights to 800 million people across the continent.
I readily admit the Court is in need of further reform if it is to cope better with the sheer workload it faces, be quicker at dealing with high profile and urgent cases, and properly reflecting the unique social, political and legal characteristics of each member state. But walking away is inconceivable. By doing so, we would betray our role in maintaining and spreading a high standard of human rights across Europe, and beyond. The UK’s commitment to the European Convention on Human Rights is a red line issue for Labour.
Rt Hon Sadiq Khan MP is the Labour Shadow Secretary of State for Justice