Why don’t we love the European Convention on Human Rights?

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This is a question to ask anyone on the continent of Europe, from the West Coast of Ireland to the Ural Mountains. The European Convention on Human Rights (ECHR), and its Court in Strasbourg, owes nothing to the European Union for its existence as it was created immediately after the Second World War and has 47 member states, including Russia, Turkey and the Caucuses (in fact every county apart from Belarus). The Council of Europe, which oversees the European Convention and the Court, was inspired by Winston Churchill (the UK’s wartime leader) who believed that political union based on core values was essential to prevent future European wars.

It is therefore perhaps surprising that the 2015 manifesto commitment of the recently elected UK Government is to scrap the UK’s Human Rights Act that incorporates the ECHR into law. The ECHR was very much a Conservative Party creation, drafted under the guidance of David Maxwell-Fyfe in the late 1940s, a politician who was to go on to become the UK’s Lord Chancellor. So why are we here?

Human rights are rarely popular

Human rights are not usually a vote winner, in particular when we consider their legal aspects. Perhaps this is because most legal cases relate to specific (often marginalised) individuals and not the majority. When the majority does benefit through policy changes, such as child protection, gender equality, care of the elderly, personal security, education, health and so on, these are rarely regarded as human rights issues (which in fact they are). In the UK, the debate about the much-cherished National Health Service is rarely framed within the terms of the “right to health” and the UK’s commitments under the United Nations Covenant on Economic, Social and Cultural Rights.

The legal cases that have been taken to the Strasbourg Court have been much more associated with the civil and political rights of individuals including prisoners, asylum-seekers, suspected terrorists and so on. Tabloid newspapers have long had a field day on such issues – resulting in many to comment “what about my human rights?” The fact human rights law defends sometimes unpopular minorities for reasons of legal precedent (they are the “canaries in the coal mine”) is rarely explained to non-lawyers (and I am no lawyer). Given the lack of public awareness, some might argue that a debate about a “British Bill of Rights” in the place of the ECHR might be a good thing – to engage the wider public. However, there are a number of important reasons why this might not be the case.

A British Bill of Rights?

At first glance it sounds rather nice: evoking the 800 years legacy of the Magna Carta and all that. But the debate about what should be in such a Bill of Rights will be fierce and might well surprise some of its supporters. Our commitments to human rights within the United Nations are now far more expansive than under the ECHR – including economic, social and cultural rights and more recently the recognition that business too have a direct responsibility to respect human rights. If all of these human rights are to be strengthened under UK law – fantastic – but is this what the Government wants? Will we be litigating to protect rights within the education system, healthcare, water provision or the indignity of food banks?

The UK is generally serious about its United Nations human rights commitments and its place at the top table in New York and Geneva – in particular its permanent seat on the Security Council. Therefore it would be hard to ignore the full range of internationally recognized human rights if the process is to be reopened? If, however, a British Bill of Rights were to be restricted to civil and political rights only, it is likely to be a near carbon copy of the existing UK human rights legislation unless we were to leave the European Court and the Council of Europe altogether. I believe that leaving the ECHR would have very serious international consequences as set out below.

It is also important to note that Scotland, Wales and Northern Ireland are likely to take a very different view on such a British Bill of Rights. Both Northern Ireland and Scotland have their own Human Rights Commissions aligned to the ECHR – they might want no part of a British Bill of Rights that was not fully aligned to the ECHR (and therefore what is the point of replacing the existing UK Human Rights Act?). Does the government really want to provoke such discord at the very time it is trying to keep the Union together? In many ways what is being proposed is actually an English Bill of Rights and not a British one – suddenly it doesn’t sound so compelling. Should the English have fewer human rights than the Scottish, or vice versa?

Leaving the European Court on Human Rights?

It might well be the case that the problem some British politicians have with the ECHR are not the rights themselves, but the lengthy delays involved in cases and (in the case of the right of prisoners to vote) decisions that offend political sensibilities. Occasionally frustrating government ministers is the job of any human rights court, and what is rarely reported in the UK press is how the European Court offends such sensibilities in Moscow, Budapest or Ankara too. The UK leaving the ECHR would send a very clear message to other politicians in every capital across 47 countries (not all of which have outstanding records on human rights) that the days of accommodating the opinion of a court beyond their borders is over? I feel for the British Ambassador in any of these capitals when he or she has to explain this to local human rights defenders, and I worry very much for all those risking their lives for freedom everywhere as the ECHR is also much admired model for those working to developing the capacity of their regional human rights courts in Africa or the Americas.

Citizens within the UK would also be stripped of their ability to petition beyond this country for justice. If we assume that the legal systems of the UK are flawless then fine, but I have yet to meet a British judge who believes this to be the case. Some countries allow their citizens to petition under United Nations human rights conventions but the UK has signed very few of the optional protocols that allow for this. I have heard nothing to indicate that the UK would allow for this as part of such a British Bill of Rights.

Finally, it is worth adding that although the Council of Europe is nothing directly to do with the European Union (which was set up later has far fewer member states), the EU has endorsed the ECHR and recognizing the ECHR is now essential for all EU members. This includes the work of the EU’s External Action Service around the world as well as the internal role of the Fundamental Rights Agency in Vienna. Any plan to revoke the UK’s recognition of the ECHR would play directly into its forthcoming referendum on EU membership.

Where do we go from here?

As is often said at such moments, no one would choose to start from here. The UK Government is right to demand greater efficiencies and clarity from the Strasbourg Court process – as the Brighton Declaration suggested (during the UK’s turn as Chair of the Council of Europe in 2012).

A public debate on the value of human rights law is also welcome as well as the nature of the UK’s international commitments. The challenge will be that an a priori commitment to revoking the UK Human Rights Act might raise the expectations of those hoping the UK will step away from some of its wider human rights obligations – something no internationally responsible democratic Government is likely to do. The debate about a British Bill of Rights might, therefore, waste a lot of time, energy and money if we end up very much where we started in a couple of years time. Worse than that, unless handled with extreme care, the debate might alienate further democrats and civil society in Northern Ireland, Scotland and Wales – and send a very perverse message to other governments around the world less committed to human rights.

We are where we are, and so we must all hope for some level headed and inclusive discussions that really do put human rights in their full context and what is at stake for both British interests but also human rights defenders worldwide. If the UK (or just England) were to leave the ECHR it might not affect the lives of most British people directly in the short-term unless you are unlucky enough to have your fundamental human rights put at risk over the years ahead. But it would have an immediate impact on this country’s international relations and the wellbeing of vulnerable communities across Europe and around the world, as well as integrity of the component parts of the United Kingdom. I know that Government ministers want what is best for this country and so they need to proceed very carefully now the genie is out of the bottle. This too at a time when the UK Anti-Bribery Act and the UK Modern Day Slavery Act set new benchmarks for how our Government, companies and charities must behave around the world in accordance with international standards.

For those of you reading this commentary outside of the UK, perhaps it resonates with your own national discussions. If not now, it might well over the months ahead as discourse in the UK might embolden those who see little value in Churchill’s legacy and the post war social contract.

The 7 May 2015 “British” election

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“Those who expect to reap the blessings of freedom, must undergo the fatigues of supporting it.”    - Thomas Paine (1777)

Thursday 7 May 2015 is the date of the UK election. It  is more than a British election in a number of ways. The fact that there is no adjective for “United Kingdom” – you are either British (i.e. English, Scottish or Welsh) or Irish – is a linguistic clue to a deeper force at work once again. Being of the United Kingdom of Great Britain and Northern Ireland seems to be diminishing still further as a collective identity.

For the first time in over 300 years of union, Scotland might (just might) return only pro-independence nationalist representatives to the Westminster Parliament – something Wales or Northern Ireland have never done (nor for that matter the rest of Ireland before its independence). Even if the Scottish Nationalists fall slightly short of winning all 59 Scottish seats, it is likely to be a historic achievement. The 2015 election looks like being not just about the respective number of Members of Parliament (MPs) but also about the legitimacy of different parties to be part of a government given that none is likely to command an overall majority.

The arithmetic itself highlights what is wrong with the current British democratic system. It maps very poorly onto the new political allegiances that have emerged across the UK over recent years, partly due to our “first past the post” electoral system (in Britain) but also due to how concentrated some votes are. The United Kingdom Independence Party (UKIP) – who despite the name are de facto English Nationalists – looks like gaining 10-14% of the overall UK vote, but perhaps only one or two seats in Parliament. Nationalists in Wales and Northern Ireland will gain more MPs than UKIP but with a much smaller percentage of the overall UK vote (largely because they are concentrated in a few seats each) and it should be noted, that Sinn Fein (part of Irish Nationalist community) will not take their seats in Westminster anyhow.

But the Scottish Nationalists (SNP) will command perhaps only 4-5% of the overall UK electorate but might win 54 or more of the 59 Scottish seats in Westminster. The 50% of Scotts who do not vote SNP tomorrow might not see many or any Scottish Labour, Liberal or Conservative MPs in Westminster. Apart from being a bit weird it is huge drain of talent from the Labour and Liberal Parties and from Westminster as a whole.

But I am not blaming Plaid Cymru or the Scottish Nationalists for this state of affairs – both have advocated for proportional representation. As commentator and satirist Armando Iannucci points out, it is the system itself that is rotten and for this we must blame the two parties that have dominated UK politics for too long: Labour and the Conservatives – for not reforming it. Whilst the de facto English nationalists – UKIP – also claim to be a reaction against the status quo – unlike the Irish, Welsh or Scottish nationalists they cannot credibly claim to be progressive with their anti-immigration and anti-European rhetoric. Intriguingly, if the UK does start to pull apart, even only through greater devolution, it will open political space for any progressive English nationalist party should they ever choose to be labeled such terms given hegemonic problems of being labeled “English”. I am not a nationalist – so I leave this bone for those that think nationalism is a legitimate dogma in the twenty first century.

What makes the May 7th result particularly interesting is that the two main parties are neck and neck at around 33% of the popular vote between them across the UK. In terms of seats, however, this favours the Conservatives in terms of numbers of MPs as their vote is concentrated in England (and particular the South of England). But even this advantage looks as if it will not give the Conservatives enough seats to rule on their own – another coalition will be essential but their partners of the past five years, the Liberal Democrats, will be the biggest losers on May 7th in loss of vote – as were the Liberals in Germany after their first coalition with Chancellor Merkel. There might not be enough Liberal Democrat MPs in the new Parliament to give the Conservatives what they need.

What the colour combination of the next UK coalition will look like is a matter for those who like to set bets and gamble. Unlike Germany, a Red-Blue (Social Democrat – Conservative) “grand coalition” is impossible in UK terms. It happened unofficially last year in Scotland during the referendum on independence and many Scottish voters still resent it. As much as nationalism is emerging as a powerful force in UK politics, it does not trump the much deeper class divide anywhere with the possible exception of Northern Ireland. British politics remains tribal on class grounds, much less so than it was, but the two main parties still have their core votes determined more by genetics than manifestos. What is truly radical about what is happening in Scotland, is that this might be shifting to a new model (albeit an independent Scotland could not be governed by a spirit of nationalism forever and would revert to left-right divisions).

What we will see in the next few days is a hint of a new style of politics in the UK – and one in which legitimacy places an increasing role. Not all the permutations for building a 326 MP coalition in the Westminster are easily legitimate in representative terms – given the imbalances I have outlined above. Until the voting system is reformed (replaced by proportional representation) and we move to a more permanent multi-party system, Westminster will feel its social licence draining away. Its political licence might be cobbled together for another five years, it might have legal licence in constitutional terms, but the social license – the result of the social contract between the peoples of the United Kingdom and their representatives in Westminster is increasingly badly damaged and must be repaired before democracy can once again thrive on these isles west of France.

To end with the words of a British man, in fact an Englishman who perhaps gave the world more in democratic ideas than just about any other. The democracies of France and the USA both owe much to Thomas Paine, but he was never much liked by the elite back at home – in fact he was wanted for sedition: to be hanged for his dangerous thinking. But Paine reminds us in his quote from 1777 (that starts this commentary) that democracy itself is a lot of hard work.