Xenophobia drives government assault on European court

March 15, 2012 — Comment

Written by Frances Webber

Human rights in Europe are at grave risk from the UK government, argues a leading human rights campaigner.

In the wake of the furore over the European human rights court’s ruling that Abu Qatada could not be deported, a draft document leaked to the Guardian reveals that the UK government is determined to reduce the Strasbourg court’s powers.

The assault on the court is couched in extremely diplomatic language. The draft Brighton declaration[1] – the document ministers hope will be signed by the Council of Europe’s Committee of Ministers in April – emphasises the importance of the human rights court and its work, and the supremacy of the right of individuals to petition the court. This right of individuals to appeal to the court directly, over the heads of governments, is what has made the Strasbourg court so successful. And it is this very success as a supra-national restraint on European state power that is leading to attacks by  national governments, with the UK leading the way.

The ‘margin of appreciation’

The diplomatic language cannot conceal the intention of the British drafters of the declaration, which is to get the court off the government’s back, by preventing it from interfering in all but the most blatant of human rights violations. It relies heavily on the doctrine of subsidiarity, which places the main responsibility for upholding human rights on the member states, and the so-called ‘margin of appreciation’, which is the leeway they are given to interpret and apply the Human Rights Convention in accordance with local laws and traditions. The most controversial clause in the draft suggests preventing the Court from interfering in cases where the member state’s own courts have dealt with issues, unless they have gone badly wrong. Another proposal would oust the right of individual petition in certain cases; a third would reduce the time for applying to the Court from six months to somewhere between two and four months, which would disadvantage those in custody or for whom access to legal help was difficult. Other suggestions believed to be on the table (although not in the draft) include charging fees to applicants, an idea which apparently has no support from other member states.[2]

Human rights groups fear that the proposals, in particular increasing the ‘margin of appreciation’, would remove the Convention’s teeth and its efficacy by allowing states much more freedom to apply their own interpretation of human rights. The home secretary and the prime minister have made no secret of the fact that the aim of their negotiations on the European human rights court is to regain the freedom to deport foreign offenders and anyone else they want to deport, in cases where UK family ties or the risk of violence or torture currently operate to prevent deportation.[3] Apart from Abu Qatada’s case, where the Court ruled that the risk of trial on torture evidence made deportation to Jordan unlawful, recent rulings have told the British government it cannot deport Somalis because the situation in Somalia is too dangerous, and that member states cannot return asylum seekers to Greece because of degrading detention conditions and lack of refugee determination procedures. These rulings are presented by the government as unjustifiable infringements on national sovereignty.

Applause from right-wing think-tanks

The government  likes to pander to the populist press view that the  Strasbourg Court acts in the interests of foreigners out to abuse British hospitality and the  campaign against the court has delighted the Right. The Henry Jackson Society, a right-wing think-tank, whose Associate Director Douglas Murray is linked to the US neocons, is stirring the pot by warning the government in an emailed press release not to appoint Ben Emmerson QC to the British judgeship on the European Court which will soon become vacant and for which he is apparently shortlisted. Judges are appointed for a nine-year term to rule on the conduct of states including Britain. Emmerson, it warns, represented Abu Qatada and frequently represents terrorists. Britain needs someone who appreciates the margin of appreciation and, in effect, will leave Britain alone.[4] Another right-wing think-tank, Policy Exchange, wants parliament to have a say,[5] in the name of democratic accountability. The ideal candidate for these think-tanks would be someone like Jonathan Sumption QC, who represented the security services in the case of Binyam Mohamed and wrote a letter of complaint to the judges  in that case criticising their unflattering description of MI5. He later criticised senior judges for ‘becoming too politicised’ in ruling against the government too often, encouraged by the European Court, which is shrinking national sovereignty.[6] This is exactly the language adopted by the prime minister and the home secretary, and that of right-wing think-tanks, and provokes questions about the manner of Sumption’s own appointment. He is the first barrister for several decades to be ‘fast-tracked’ – appointed direct to the supreme court, without going through the ‘ranks’ of the high court and Court of Appeal.

Human rights at risk

The justification given for the current proposals on the reform of the European Court is the backlog of 150,000 cases awaiting decision by the Court. Critics, including over a hundred NGOs from all over Europe, point out that the Court has already put in place streamlined procedures which should get rid of the backlog by 2015, and that what the Court needs is not curtailment of its powers but proper funding by member states, and for states to comply with previous rulings.[7] The open letter from the NGOs points out that many thousands of applications complain of ‘repeat violations’, ie, laws or practices the Court has already ruled illegal, and proposes mechanisms to ensure state compliance with rulings against them. The British government’s own continuing refusal to comply with the Court’s ruling against the blanket ban on prisoners voting is an example of a ‘repeat violation’ which has resulted in 4,000 more applications to the Court – but Cameron, far from leading parliamentary efforts to comply, which would put an end to the stream of applications, instead told parliament that the Court’s ruling made him physically sick.[8]

The UK, which currently holds the rotating presidency of the Council of Europe (the body which created the European Convention on Human Rights and which runs the Court), needs the agreement of ministers from all forty-seven member states of the Council of Europe to get the document approved. Other member states detect arrogance in the draft’s implication that Britain does not need its human rights practices policed by a superior court, and fear that the Court would lose its legitimacy if it ended up only taking cases from eastern Europe, Russia and Turkey.[9] More to the point, national authorities would lose accountability – which is precisely the government’s intention.

[1] Draft Brighton Declaration on the future of the European Court of Human Rights: a leaked draft of the UK’s proposals for the reform of the Strasbourg court, Guardian, 28 February 2012. [2] Owen Boycott, ‘Outcry over UK plans to charge European court of human rights claimants’, Guardian 13 March 2012 . [3] James Kirkup, ‘Conservative party conference: ‘family life’ loophole will go, says Theresa May', Telegraph, 4 October 2011. [4] Henry Jackson Society press release, ‘Qatada barrister shortlisted for job at ECHR: the case for reform’, 12 March 2012. [5] Martin Beckford, ‘Abu Qatada barrister could become Britain’s next European human rights judge’, Telegraph, 10 March 2012. [6] Owen Boycott, ‘Supreme court appointee says role of British judges is too politicised’, Guardian, 8 November 2011. [7] Joint Statement: Strengthening the protection of human rights in Europe, Open Society Justice Initiative, March 2012. [8] Tom Whitehead, ‘European court gives Cameron ultimatum on prisoner votes’, Telegraph, 13 April 2011. [9] Ibid.

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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