Original article found here on The Telegraph
It would be nice if we could say Happy Birthday to the European Convention on Human Rights (“ECHR”), which is 75 years old today; but alas, it is not in a happy state. Two parties, Reform and the Conservatives, have pledged to withdraw from it. And this is not just a British problem; in March the governments of nine countries, including Denmark, Italy and Poland, wrote an open letter complaining that the ECHR had been misused, and demanding a rethink.
The point directly at issue is, of course, its role in the handling of illegal immigrants. There are up to 50,000 asylum-seekers waiting to have their appeals heard in the UK. In probably the majority of cases, they will invoke their human rights under the ECHR – whether under Article 3, saying that they would face “inhuman or degrading treatment” if they were sent back, or under Article 8, about respect for their “home” and “family life”.
Politicians should not be blamed for raising this topic. But the non-stop concentration on immigration risks giving a misleading idea of what the problems are with the ECHR. Those nine governments are deluding themselves if they think that we should just tweak the interpretation of the text on this one issue; the real problems go much deeper than that.
It all started so well, 75 years ago. In the aftermath of the war, a new spirit of international cooperation gave us the UN and the Council of Europe. The former produced the Universal Declaration of Human Rights in 1948, while the latter began drafting the ECHR in the following year. The point was to set out the lessons of the recent past, outlawing the crimes of totalitarian states against their citizens: torture, forced labour, arbitrary detention, suppression of free speech, and so on.
British lawyers were involved in the process, but the common claim that this was primarily a British document is false. Typically, the UK asked for the wording to be specific – Sir Oscar Dowson demanded “the precise definition of the rights, so as to make it quite clear what is the nature and extent of the obligations” – while Continental lawyers were happier with general, open-ended statements of rights. Fatefully, the Continentals got their way. Instead of a negative document specifying the extreme things that governments must not do, they produced a list of positive abstractions, some of which, such as “family life”, could be made to mean almost anything.
And they were. Over the years, Article 8 (about respect for private and family life, the home and correspondence) has undergone a huge expansion at the hands of the judges in Strasbourg. They have decided that “home” includes business premises; that this human right is violated by excessive noise from late-night visitors to a computer club; that it confers on national governments a duty “to facilitate the gypsy way of life”; and that it gives a prisoner the right to conceive a child by artificial insemination. Most recently – and astonishingly – it has been used to convict the Swiss government for its policy on CO2 emissions.
Part of the problem is a doctrine, developed by the Strasbourg court since the 1970s, which calls the ECHR a “living instrument” – something designed to develop and extend the rights over time. This is largely based on a misreading of the Preamble, which does talk about the “further realisation” of rights, but gives that task to the Council of Europe, not to the court. In fact there are clear rules about how far an international treaty (which is what the ECHR is) can have its meaning expanded or changed; and it’s no less clear that the Strasbourg court has broken them.
At the same time, the court developed its own peculiar doctrines about how to interpret human rights. “Proportionality” sounds scientific, even mathematical – until you look closely, and find that when juggling multiple factors (my rights, the rights of others, national security, economic well-being, and so on), the judges give relative weightings that simply cannot be predicted in advance. There is no science. The same applies to the famous “margin of appreciation”, in theory a sort of limited leeway for national governments or national courts to make their own decisions: this too varies with complete unpredictability. And yet predictability is a basic requirement of the rule of law.
The last attempt – British-led – to reform the ECHR took many years and achieved almost nothing. The phrase “margin of appreciation” was inserted, as a concession, into the Preamble, where it has no direct force; but even if it were in the main text, it would make little difference, given its own near-meaninglessness.
Reforming the ECHR is a fool’s errand. Sadly, after 75 years, it really is time to leave.
Sir Noel Malcom is Senior Research Fellow at All Souls College, Oxford, specialising in intellectual history of Britain and early modern Europe. This article first appeared in the Daily Telegraph and is reproduced here with the kind permission of the author and the paper.
