Policy Exchange: European Court of Human Rights is undermining democracy

In a major new study for Policy Exchange, Sir Noel Malcolm, leading historian of ideas and Senior Adviser on Human Rights to Policy Exchange, argues that democracy is being eroded by an ever-expanding system of human rights law and condemns the encroachment of the European Court of Human Rights (ECtHR) on democratically-elected parliaments. In Human Rights and Political Wrongs: A new approach to Human Rights law, Sir Noel sets out how:

• ·           ECtHR rulings have required the UK Government to bring forward measures to give some prisoners the vote, despite Parliament voting explicitly against this
• ·           The ECtHR operates on principles which may seem ‘scientific’ from a distance; but on closer inspection they are incoherently formulated and inconsistently applied
• ·           The ECtHR has in effect changed the terms of the European Convention – a treaty which the original signatory states, including the UK, entered into in good faith
• ·           The UK should leave the ECtHR and replace the Human Rights Act, seeking other ways to provide legal protection for individuals against abuses of state power. This would make the UK resemble other advanced Western nations which are not subject to supranational adjudication but have robust protections in place, such as Canada, Australia and New Zealand.

Criticising the way in which the ECtHR operates, the report highlights that it fails to provide the certainty and predictability required by a proper legal system. The report also highlights how ECtHR decisions have gone beyond the original scope of the European Convention, changing the meanings of words (such as ‘home’, which is now deemed to include business premises), and developing new rights that are nowhere mentioned in the Convention itself (such as the right to respect for ‘personal development’).

In the latest example of how the Court undermines democracy, the Committee of Ministers in the Council of Europe last week discussed, among other things, the UK’s new proposals to comply with the Hirst judgment on prisoner voting. This is despite Parliament having voted overwhelmingly against this and the former Prime Minister David Cameron describing it as making him feel “physically sick”.

Sir Noel reaches the conclusion that the best way to protect human rights and align this protection with democratically accountable government is for the UK to leave the jurisdiction of the ECtHR. He said: 

“This unclear, indeterminate, subjective and unpredictable system of human rights adjudication can barely meet some of the most basic requirements of the rule of law.The current system under the European Convention is so dysfunctional and counter-productive that it should be abandoned. With regret, I see no alternative to leaving the Convention

“The Strasbourg Court tries to deduce law from highly abstract principles, in the process inventing ones that are not in the European Convention on Human Rights, such as ‘personal autonomy’. The Convention was not intended to enter the nooks and crannies of local life, not to serve as an all-purpose device to correct minor injustices, and not to undermine democracy by taking more and more areas of policy-making out of the hands of democratic legislatures; on the contrary, it was intended to strengthen and guarantee the conditions of democracy itself.

“Human rights need to be re-thought from the foundations. They are not statements about everything that is valuable about being human; no coherent legal system can be based on that. Rather, they are essential political statements about the limits of state power – the things that governments absolutely must not do to their people. And, since human rights are the fundamental political rights of people under democratic government, they should be protecting democracy, not eroding it.”

ENDS

Notes 

Among the examples of ECtHR malpractice which Sir Noel cites in his report are:

• ·         McCann v UK, 1995, the so called ‘Death on the Rock case, in which the Court held the UK in breach of the right to life for shooting dead an IRA bomb squad. The Court substituted its own judgment of operational matters for that of experienced officers who had undergone long training.
• ·         Dickson v UK, 2007, in which a prisoner serving a long sentence for murder had been refused permission by the Home Secretary to use facilities for artificial insemination in order to have a child; the Court found that this was not a proportionate ruling.
• ·         Chapman v UK, 2001, where the complainant was a gypsy woman who had been denied planning permission for her caravan on a piece of greenbelt land; the Court found this to be interference with her Article 8 right to respect for private life.
• ·         Sidabras and Dziautas v Lithuania, 2005, where two men who had worked for the KGB appealed against a ten year ban on all public (and some private) employment and the Court found a consequential connection between the possible impact on their income and their right to private life.
• ·         Keenan v UK, 2001, where the family of a mentally ill prisoner who committed suicide in prison found that the UK government was guilty of inhuman and degrading treatment, despite Mr Keenan being on suicide watch and receiving daily visits from a doctor, a chaplain and the prison governor.
• ·         Rahimi v Greece, 2011, where the Court ruled that Lesbos had been negligent in not providing decent accommodation for a young Afghan asylum seeker two days after he arrived on a small island without notice or authorisation.

Sir Noel Malcolm is a Senior Research Fellow of All Souls College, Oxford, a Fellow of the British Academy and Senior Adviser on Human Rights to Policy Exchange. He did his doctorate in History at Cambridge, and was for seven years a Fellow of Gonville and Caius College. He has been a Visiting Lecturer at Harvard and a Visiting Fellow of St Antony’s College, Oxford; he is an Honorary Fellow of Peterhouse, Gonville and Caius College, and Trinity College, Cambridge. His work has ranged widely in European history and intellectual history, with a particular interest in the history of political philosophy. A general editor of the Clarendon Edition of the Works of Thomas Hobbes, he has published in that series editions of Hobbes’s Correspondence (2 vols, 1994) and Leviathan (3 vols, 2012). He was knighted in 2014 for services to scholarship, journalism and European history.