The interminable, and largely bogus, debate about our continued commitment to the Convention normally concerns its abuse by migrants. This week, the Prime Minister announced that the interpretation by judges of the ECHR undermined the government’s attempts to deport illegal immigrants. He specifically mentioned Article 3 (the prohibition of torture) and Article 8 (the right to privacy and family life). He nevertheless defended the UK’s membership of the Convention, saying that ministers ‘need to look again at the interpretation of some of these provisions, not tear them down’. Really? Rip van Starmer may have suddenly discovered that there are problems with the ECHR following the rise of Reform, but he is irrational to think that it can be fixed by tweaking its interpretations.
You do not need to be a lawyer to recognise the serious defects of the ECHR and the harm it has inflicted on our society
You do not need to be a lawyer to recognise the serious defects of the ECHR and the harm it has inflicted on our society. In particular, Article 8’s protection of private life, family life, home and correspondence are notoriously invoked in support of the right of migrants to stay put. The Article’s interpretation by the European Court of Human Rights has generously extended it to cover:
the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.
It is hard to imagine what this benevolent construction of the law does not protect. In fact, the Court has construed this article to create a general right to privacy. Its muddled judgments are a subject for a different essay, but it is worth noting that by conceiving ‘privacy’ as an amorphous cluster of interests, some with only a tenuous association to the protection of personal information (the central interest at the heart of any workable right to privacy), the law has been left ambiguous, with negative consequences for both privacy and freedom of expression. The richness of this interpretation is simultaneously its poverty; its breathtakingly broad compass reveals its weakness.
But this failure is not entirely the fault of the judges, which is another reason why Starmer is wrong to focus on the interpretation of the ECHR. The text of the article is itself vague; there is no sharpness in its outline, and little attention to detail. The draftsman was no draughtsman.
The Court has been content to apply this sloppily written clause to an astounding array of issues including abortion, noise, immigration, deportation, extradition, sentencing, child abduction, artificial insemination, same-sex relationships, legal aid, the policing of public demonstrations, employment and social security rights, planning and environmental law, and the eviction of tenants. The preposterous list goes on. And this shoddiness was thoughtlessly imported into our statute book in 1998 when the Human Rights Act was enacted.
Our continued genuflection to the Strasbourg Court plainly obstructs both the will and the welfare of the public. It has, in the words of Lord Sumption, ‘transformed the Convention from a noble body of truly fundamental principles, almost universally shared, into something at once intrusive and banal.’
The Convention was, in the sombre shadow of the Holocaust, a significant recognition by European countries of the need to protect its people against totalitarianism and oppression. But more than seven decades later, two issues expose its defects. First, the deficiencies I have mentioned in the language of several of the articles. And secondly, the expansive construction of the already shabby text by the European Court. The simplest solution is to repeal the Human Rights Act and replace it with a carefully drafted Bill of Rights.
We cannot remain shackled to a system founded on a poorly drafted law munificently interpreted by foreign judges that thwarts the democratic wishes of the people.
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