Alex Massie

The Myth of the European Court of Human Rights’ “War on Britain” - Spectator Blogs

The Myth of the European Court of Human Rights' "War on Britain" - Spectator Blogs
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You rarely hear people defending the European Court of Human Rights. It is, according to British mythology, a meddlesome beast populated by dimwit judges of dubious foreign provenance whose rulings are invariably ninnyish, ignorant and intolerable in equal measure.

I prefer to think of the court as the last protector of individual rights often threatened by hostile governments. Sometimes that hostile government is our own. The court - and really this cannot be stressed often enough - offers protection from the state. Restraining government's worst instincts is a noble calling and if our judges cannot or will not do it then praise be that the european justices are not so feeble-minded.

As for the charge the European court is unelected and unaccountable. Well, lo, that's rather the point of an independent judicial process. This is a strength, not a weakness.

The latest outrage [sic] is that the court in Strasbourg has suggested detaining prisoners indefinitely while denying them any means of demonstrating they may have been successfully rehabilitated and thus no longer constitute a threat to society is not quite on. If this were a Russian case everyone would agree the court's verdict is the correct one. But since it's an English case we're supposed to consider this slap a dreadful invasion of Brittanic sovereignty.

Hooey. The use of indeterminate - that is, indefinite - sentences was a Labour ploy mercifully scrapped by this government. Like many of the coalition's better moments this is something the government prefers to hide. Chris Grayling, the new Justice Secretary and Lord Chancellor, told MPs the government intends to appeal the court's decision. Presumably this is because the government does not relish paying compensation to prisoners presently incarcerated beyond their tariff and with little or no means of demonstrating their fitness for release. One can sympathise with the government here (think of the headlines!) but the better response would be to avoid leaving itself open to these kinds of challenge in the first place.

As for the court's ballyhooed "War on British Justice" well, that too, is a creature of fevered imagination. Andrew Tickell puts it well:

A quick look at the institution’s official figures illuminates all this for moonshine and fantasy. As I outlined back at the beginning of the year,  claims that the Court is engaged in a hyperactive, hostile review of UK laws conveniently ignores the fact that 97% of applications made against the United Kingdom are rejected as inadmissible, the vast majority without being communicated to the state for any sort of response.  To put it another way, whether ministers are conscious of them or not, and although they will never enter the annals of the law reports, or appear on HUDOC, the UK government “wins” the vast, vast majority of cases lodged against it.

Moreover, even when the court does consider there is a case to answer it turns out that Britain's legal systems are more robust than you might think were you to base your estimate of the court's 'interference' on newspaper reporting alone.

The court's remit extends to some 47 countries. Only four - the Netherlands, Sweden, Andorra and Denmark -  "win" cases at Strasbourg more frequently than the United Kingdom. Again, Mr Tickell has the details:

[B]etween 1959 and 2011, the Court handed down some 14,875 judgments, of which 12,425 found that at least one violation of the Convention had occurred: that’s 83.53% of all judgments given. The United Kingdom, by comparison, achieved a much more favourable level of success in its litigation.  During the same period, the Court has made 462 judgments respecting the UK, of which 279 made at least one finding that the Convention had been violated: only 60.39% of judgments against the UK were adverse.  Forty-two of the current forty seven member states lose a higher percentage of cases, from Ireland’s 62.96% upwards.

Of course, percentages can be misleading.  For example [...] Monaco, Montenegro and Liechtenstein have the highest rate of adverse judgments by the Court, with every case (100%) going against their governments.  What this doesn’t show, however, is that the body of litigation generated by these three states is tiny – between them, they’ve generated only fourteen judgments in total. However, the same cannot be said for the litigation against Germany (234 judgements, 67.95% adverse), France (848, 73.94%), Italy (2,166, 76.22%), or Russia (1,212, 94.06%), all of which enjoy an (often substantially) higher rate of defeat in Strasbourg proceedings than the UK’s comparatively modest 60.39%.

By international standards, then, Britain's legal systems stand up to greater scrutiny than those of our European peers. This is good! But it hardly means our laws are perfect or should somehow be protected from further scrutiny.

Finally, those conservatives - and, alas, it is mainly conservatives - who wish to see Britain withdraw from the court or call for the United Kingdom government to unilaterally ignore its rulings should at least have the goodness to contemplate what kind of example this would set. It is already difficult enough to persuade countries such as Russia or the Ukraine to respect human rights and the rule of law without giving them fresh cause to ignore the court's rulings. If Britain - Britain! - does not feel bound by the ECHR then why in god's name should anyone else consider themselves restrained by its judgements?

Even if you believe the UK would benefit from ignoring Strasbourg you should at least consider the costs and consequences of doing so. Mild inconvenience - often sensible and justified, mind you - to the UK is a small thing when weighed beside the protections the court at least tries to afford peoples in less fortunate countries in which the rule of law is less established. I appreciate that this brand of internationalist liberalism is a tough sell but that doesn't diminish its decency or its importance.

In any case, the record - compiled over more than half a century - suggests Strasbourg has a comparatively high opinion of British justice. It's war on Britain is a myth albeit one that, to the extent it does exist, generally shows the court in a better light than our own dear government and state.

Written byAlex Massie

Alex Massie is Scotland Editor of The Spectator. He also writes a column for The Times and is a regular contributor to the Scottish Daily Mail, The Scotsman and other publications.