The European Court: Better Informed Mudslinging Please

by Sam Bright

This is a jolly season to be a Eurosceptic.

It was not always thus. Prior to the recent travails of the Euro’s Mediterranean members, those agitating for a withdrawal from Europe had been limited to focussing their ire on the EU’s somewhat misunderstood step-sister, the European Court of Human Rights (‘ECHR’).

Following the ECHR’s ruling in November 2010 which required the UK to comply with itsmuch-maligned 2005 judgment requiring reconsideration of the “general, automatic and indiscriminate” removal of prisoners’ voting rights (no, the judgment did not require all prisoners to be given the right to vote), David Cameron declared he felt “physically sick” at the idea of complying. Perhaps so, though since some prisoners actually do have the right to vote, he must already be feeling a bit queasy.

But more serious than his poorly stomach was the way the right-wing press, egged on by the likes of Nigel Farage (whose website has recently and risibly compared him to Gandhi) has conflated the EU with the ECHR.

One of the worst offenders, as not only is he an MP but also a successful lawyer, was Dominic Raab who argued in the Telegraph that “The Government should refuse to enact EU laws that make no sense – like votes for prisoners”. Can an intelligent man really make so many mistakes in one sentence? Possibly the fact that both the EU and the ECHR feature ‘Europe’ in their title is confusing. Possibly, though unlikely, since despite some evidence to the contrary most journalists (and politicians) are not thick. No, this is a deliberate deception, designed to channel a vague feeling of disgust for anything originating abroad into a building momentum for withdrawal from European institutions.

Yet this is not the only wool being pulled over our eyes. On a par with this is the suggestion that all the criticisms that can be levelled at the EU (fairly or unfairly) can also be applied to the ECHR. It is touted as undemocratic and illegitimate, as we do not choose the judges. It goes beyond its mandate, in that it makes decisions on issues that are not specifically mentioned in the Convention or its Protocols, such as ‘prisoners’ voting rights’. At €59m, the Court is excessively costly. Its imposition of judgments from the comfort of its seat in Strasbourg is a threat to British sovereignty. And so on.

Not true. Granted, the Court is not without its difficulties. It has a quite incredible backlog of cases, and there are serious issues with implementation. Some of the reasoning is opaque, bordering on confused. It has long been awaiting real reform, in large part because Russia has placed itself firmly in the way of any further consolidation – incidentally raising the question of whether we really want to ally ourselves with such a rights-hostile country in our struggle against ‘European hegemony’.

And yet. Its judges are no more or less democratically elected than our own: few could stomach our politicians appointing our judicial arbiters, and indeed in the UK they do not. The American system of electing certain judges, and of getting Congress to ratify the nomination of candidates to the Supreme Court, hardly seems to function any better: it leads to political opportunism by incumbent judges, and can result in the blocking of perfectly competent nominees to the Court on the basis of their views on abortion or homosexuality.

The ECHR does indeed go beyond the strict text of its constitutional document – as do our own domestic judges, for example, in the case of the crime of murder: criminalized not by Parliament but through judicial development of the common law. The frequent invocation of ‘prisoners voting rights’ as an example of such overreaching is mistaken, as Article 3 of Protocol 1 to the Convention requires elections which “which will ensure the free expression of the opinion of the people in the choice of the legislature”: and it is surely conceivable that prisoners are people who would be denied the free expression of their opinion if they were to be deprived of the right to vote?

A budget €59m may seem a lot, but at an average of just over €1m per State, it is little more expensive than each State purchasing an £800,000 Tomahawk missile. The Court’s budget is approved by the Committee of Ministers of the Council of Europe, which the UK currently chairs and over which it therefore has substantial influence. It seems a small collective price to pay for the furtherance of human rights in States as diverse as Russia, Armenia, and Italy, and pales into comparison when compared with the budget of, for example, UEFA, which last year spent £1,461.1m.

Most significantly, it cannot be said that this Court is imposing foreign values on our green and pleasant land. Its drafting was guided by Sir David Maxwell-Fife, a Conservative MP who chaired the body tasked with drawing up this landmark document. The civil liberties incorporated in the Convention would be familiar to any reader of JS Mill and other influential British political theorists. Not only does the UK currently chair the Committee of Ministers, but the President of the Court is none other than Sir Nicolas Bratza, a highly respected British barrister who has been a judge at the Court for some 13 years. The respect shown by the Court to the legal and political authority of the UK Supreme Court was demonstrated recently when it reversed a previous judgment regarding the admission of hearsay evidence, leading President Bratza to declare that this was a “good example of the judicial dialogue between national courts and the European court”.

Mud will continue to be slung from advocates on either side of this debate. It is one that stirs remarkably strong passions. Those slinging the mud should verify that their missiles are well-reasoned sods, rather than shoddily assembled splatters.

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