Why the Conservatives are wrong about rights

Ram Mashru runs over the misrepresentation of the European Court of Human Rights by the Conservative Party.

Ram Mashru holds a degree in law from Cambridge University and is now a political journalist; he edits Discuss[n], an online political magazine, and has been published on topics including international affairs, human rights and politics

On Saturday the Telegraph front page ran a story about the Tory commitment to reclaim rights from Europe. The new battle lines are drawn over issues of ‘social policy’, over which the Court is alleged to be trespassing upon the proper domain of Parliament.

This fresh bout of euro-rights-scepticism has its roots in the fallout over prisoner’s voting rights.

David Cameron said he felt ‘physically ill’ at the prospect of prisoners exercising their right to vote. According to Cameron, the issue of prisoners voting is but one aspect of the ‘corrosive influence’ of the Court’s decisions on ‘British life’.

Ken Clarke said “human rights are misused”. What he should have said is that human rights are misrepresented. By fuelling contempt for the European Court the Conservatives misrepresent the Court’s role and neglect the contribution made to rights protection in the UK.

The government’s complaint is that the Court is deciding matters of British social policy. Let’s see about that.

In Marckx v Belgium (pdf), the Court declared it’s decisions ‘cannot annul or repeal’ national judgments or laws; the Court’s decisions are merely declaratory. Parliament, at all times, retains its discretion in how to respond to the European Court’s decisions.

Indeed the Court regularly invokes the ‘margin of appreciation’, an adjudicative device that allows states discretion in the administrative, legislative or judicial action required to address rights violations.

If anything, the advisory nature of the Court’s judgments and the deference shown to member states’ decision making are evidence of the Court’s political awareness. It acknowledges the greater proximity of member states to individual cases, the greater capability of national courts to adjudicate on the facts and the unique competence of governments to develop policy.

Even so, the argument that the Court intervenes in matters of social policy is without foundation. The European Court accepts that States are solely responsible for deciding contentious issues.

In the seminal case of Vo v France, the Court took account of differences at national level to decide it was for member states to determine when the right to life began, in cases of abortion. Equally, in the Pretty litigation, the Court ruled consistently with the (then) House of Lords, that the DPP should provide guidelines on prosecution in cases of assisted suicide.

When it comes to social policy, the European Court is not the quasi-political institution the Conservatives would have us believe. The issue of prisoner’s voting rights has been shamefully mischaracterised.

Article 3 of protocol 1 guarantees the right to ‘the free expression of the opinion of the people in the choice of the legislature’. Whether prisoners have the right to vote is not a matter of policy but of law.

The Court’s decision is unobjectionable. It ruled that a blanket ban on voting for prisoners with custodial sentences was an infringement of their rights.

This was qualified by an acceptance that member states enjoy a ‘margin of appreciation’ and that ‘proportionate’ action can take whatever form ‘the government considers appropriate’. What the judgment contemplates is that the denial of the right to vote be made on case-by-case basis. Not as nauseating as Cameron would make it sound.

In the process of misrepresenting the prisoner’s voting rights debate, the political right have started making dangerous noises.

Philip Johnston, in the Telegraph, suggests the ‘responsibility [of] compliance’ be handed back to ‘member states’. The suggestion is laughable. But if taken seriously, it opens the way for all out non-compliance.

States regularly violate human rights and the Court plays a crucial role in holding States to account. Academics insist that the Convention, and the Court as its enforcer, radiate constant pressure for the maintenance of rights standards. Removing the watchdog removes the compulsion to comply.

Britain’s record on immigration before the European Court is poor and the risk of severing ties is that fundamental rights will be violated, by the State, with impunity.

The cabinet and the country need to be reminded of the valuable role played by the Court in establishing consistency across Europe. The Court has substantiated the fundamental rights that everyone deserves but that were otherwise too vague to be enforced. Far from having a corrosive effect, the European Court has enhanced the rights enjoyed by the British people.

See also:

The anti-human rights obsession of Theresa and the ToriesVera Baird QC, October 5th 2011

Clegg’s defence of Human Rights Act as welcome as it is timelyDr Prateek Buch, August 26th 2011

Equal Love – the law should recognise gay marriage and same-sex civil partnershipsPeter Tatchell, July 31st 2011

Should prisoners be allowed to vote?Stephen Gummer, February 2nd 2011

Did Tories know their sex ed opt out was illegal?Jessica Asato, April 8th 2010

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