Re-conceptualising the Strasbourg Debate: a reply to Michael Pinto-Duschinsky

by Sarah Walker

Earlier this week Michael Pinto-Duschinsky’s article “Prisoner votes: Strasbourg should give way to national independence” was published on one of my favourite online haunts – the Guardian website. Sometimes, or often in my case, one gets annoyed when reading/listening to/watching something that you consider to be wrong. So instead of just getting annoyed and shouting at the laptop/radio/TV I thought I’d write a reply… and this is it, in case the title hasn’t given me away.

Recently, Prime Minister David Cameron was asked in PMQs about his response to the looming deadline of November 22nd, by which time the UK Government must put forward legislative proposals in order to comply with the European Court of Human Rights ruling in Scoppola v Italy (No.3). The Court held that a general, automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, is incompatible with the Article 3 of Protocol No. 1 obligation to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature“. Prime Minister Cameron said ‘No one should be in any doubt; prisoners are not getting the vote under this government”. His statement of intent was clear if, as I have, you have been following the Conservative party and larger tabloid media rhetoric. The Prime Minister was saying “we won’t let those European Judges tell us Brits what to do”, promulgating this idea of nosy old men in Europe picking on our great British system of justice. Mr Pinto-Duschinsky’s article, whilst going beyond it, could also be seen as stemming from this same rhetoric.

This article doesn’t. I want to re-conceptualise this debate: re-conceptualise the European Court of Human Rights not as an “infringement of our parliamentary sovereignty” but as a check and balance on our politicians.

Embedded in Mr Pinto-Duschinsky’s argument for parliamentary sovereignty is the assumption that politicians represent the views of the public in Parliament; that they are representative of the people… Have you met your local politician? Are they a fair representation of you? These are the same politicians we the general public are notoriously untrustworthy of and who can blame us: what with the expenses scandal and their dubious connections (I hopefully need only mention a certain horse called ‘Raisa’ and ‘lol’ for you to get the picture). To let them run amok unchecked is not desirable and leaves our human rights and other legal protections open to political whim (as noted by Fiona de Londras) – that is why we have a judiciary.

The Strasbourg Judges on the other hand are well-educated people, many of whom have dedicated themselves to lives of public service (for this is what life as a judge is). These are men (and women – the Court has a considerably better gender-balance than the judiciary of England and Wales) whose sole task is to do what they are trained to do – to come to a reasoned decision having analysed and applied an important legal document; the European Convention on Human Rights (drafted, by the way, in part by Churchill).

Mr Pinto-Duschinsky’s article also underlines the importance of our national voice being heard during the judicial analysis of the Convention, which he characterises as the need to “have the final say”. This characterisation is misleading as it ignores the value of the national voice being heard throughout the analytical process, either through the Government’s ‘observations’ on the applicant’s complaint, through means of intervention in a case concerning another Contracting State, or through the principles developed in the Court’s case-law. The most significant of those principles is the “margin of appreciation” (following Protocol’s 15 and 16 to the Convention, it is to be incorporated into the Convention’s preamble), which allows states in certain situations to decide for themselves how to implement the Convention and how to incorporate controversial rulings involving social policy. In Scoppola v Italy (No.3) the Grand Chamber of the European Court of Human Rights affirmed the principle that states should be able to decide for themselves how to remove indiscriminate bans on prisoners voting; they gave the national parliament control over how to best provide the rights its citizens are entitled to under the Convention…. This sounds rather a lot like the final say.

Mr Pinto-Duschinsky offers what he thinks is a good solution to the problem of parliament having to ‘kotow’ to the obligation to protect the human rights of its citizens. He makes the case for compliance with the Court’s rulings being subject to national parliaments: “Britain could negotiate with the committee of ministers of the Council of Europe to amend the existing treaty. This would allow national parliaments to override Strasbourg decisions on general matters of policy.” He asserts that “the standing of the court and its effectiveness will grow” as a result of this amendment. With all due respect to him, this argument is ludicrous. How can a court, put in place to provide a check and balance on states who are failing to protect the human rights of its citizens, be effective in this role when that state’s national parliament can just override the court’s ruling? Furthermore such an amendment prevents the implementation of the Convention and leaves human rights protection throughout Europe exposed to the whims of political leaders.

The reasoning behind the amendment is explained as follows:

“The greatest problem facing the European court is that some of the countries with the poorest human rights records regularly ignore its judgments. Were countries permitted to override decisions on those rare occasions when their parliaments voted to do so, the expectation would be automatic compliance by governments in all other cases. The overall effect would be increased compliance by the shaky new democracies which were accepted into the Council of Europe following the break-up of the Soviet Union.”

At best this reasoning is optimistic; at worst it is dangerous. If a country already has a poor human rights record and ignores the judgments of the Court, how is giving this country the option of legitimising their inaction helpful?

Furthermore he states that by allowing for this amendment “the European court of human rights stands to gain in moral authority”. I’m not aware of Mr Pinto-Duschinsky’s perception of morality, but my reckoning of the majority’s perception of morality is that it would not award ‘moral authority’ to those who reduce the protection offered to others from human rights violations!

Clearly, the debate over prisoner votes and how to respond to Strasbourg on this issue will continue until a decision is made… And after that too. Mr Pinto-Duschinsky, sitting as he does on the Bill of Rights Commission, is probably not alone in his support for the ‘amendment’ argument. It indeed seems politically appealing to Prime Minister Cameron and his Conservative party, allowing for them to appear to stick two fingers up to Strasbourg without such a huge political fallout as would be caused by withdrawal from the treaty. However, having re-conceptualised the debate, it seems clear that, in reality, to anyone who recalls the untrustworthy nature of our politicians and appreciates the importance of a reasoned check and balance on the whims of these politicians, this argument is a non-starter. The very point of the European Court of Human Rights is to provide this check and balance and to ensure that the countries that have pledged to uphold the rights the Convention enshrines do just that. Mr Pinto-Duschinsky wants our nation to have a voice and to get the final say – it already does. If he wants to emphasise this voice he can recommend the government understand and use the principles and mechanisms already available to them to shout louder, rather than incite them to strangle our rights protection to meet the current media rhetoric and make a political point.

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1 comment
  1. senex72 said:

    We can only thank Sarah Walker for her acute analysis as to why we need to check our MP’s so as to limit the damage they do to justice and our rights. But I think we need to follow its implications through. It is not MP’s and judicial decisions as such: it is the very ;power and role of Parliament that needs reforming, because it is there that the notion of responsible government breaks down, with the consequent rejection and distrust SW has so ably outlined. It is the credibility of representative democracy.that has collapsed, and no end of inquiries, tribunals and checks (of which there seem to be an endless expensive supply) can repair that from above. Bringing human rights back to UK parliamentary control or sending it away to Europe or the Country of the Houyhnhnms are equally beside the point.

    Sovereignty does not belong to the “nation” as a theoretical, abstract entity to which we all belong and to which, regardless of our views, we must all submit; and in the name of which tyrants, parties and parliaments seize power; it belongs to the people directly, and this sovereignty is alienated by elections and parties, because these rely on money and patronage aided by subservient careerists to win. .To safeguard rights we need to break the power of Parliament to legislate and return it to the people: administration only should be the purpose and work of parliament, and thorough and public scrutiny should be maintained on the conduct of all office-bearers, and public and private bureaucracies, to check corruption and oligarchic tendencies (the CEO’;s of major companies being a case in point these days).

    The fostering of deliberative grass-roots democracy requires far moire profound changes than good people seeking justice and social democracy generally hear proclaimed.

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