In this post, Professor Geraldine Van Bueren QC calls for the defence of the European Convention of Human Rights and argues that while the Court has been portrayed "as a rapacious institution greedily grabbing cases from the UK courts...nothing could be further from the truth".
15 June 2015
It is bitterly ironic that in this, the 800th anniversary year of Magna Carta, there are threats to withdraw from the European Convention on Human Rights. This Convention is Europe’s own Magna Carta. It provides every citizen with the option of challenging their leader as well as providing a useful safety net for the government.
The sealing of Magna Carta in 1215 marked the first time that a ruler became accountable to at least some of his people. No longer was there the possibility of a ruler only being accountable to the divine.
The European Convention on Human Rights took accountability to the next level by accepting that even democratic states are not infallible. A safety net is needed to ensure that fundamental human rights do not slip through to the detriment of the people.
Magna Carta is beautifully depicted on the golden doors of the United States Supreme Court and recognised as leading to the American Bill of Rights. In the same way, Conservatives - who originally lobbied for the European convention - saw Magna Carta as the starting point for a regional human rights treaty.
This is the reason that, contrary to much contemporary grandstanding, the UK and the European Court of Human Rights have a long tradition of seeing eye to eye more than they disagree.
In fact, the vast majority of cases brought against the UK in the European Court fail -- a fact that is rarely cited in critical calls for withdrawal. If the UK, or any state, were to win every case, the European Court of Human Rights would not be fit for purpose.
The European Convention on Human Rights is very much taken for granted in the UK but without it, people in Northern Ireland would be imprisoned for homosexuality; prisoners would not have access to lawyers and newspapers would be subject to gagging orders for commenting on civil cases like the Thalidomide case. These are rights that no democratic state in the 21st century would like to be without.
In these days of complexity and austerity, bringing a case to Strasbourg is a simple procedure. And once cases have been heard in British courts, it is also cheap. As legal aid is cut more and more for the people that need it most, the European Court of Human Rights becomes even more important because there is no cost. Even if an applicant loses, they bear no financial penalty.
The European Court of Human Rights has been portrayed as a rapacious institution greedily grabbing cases from the UK courts. Nothing could be further from the truth. Rather than wanting to attract cases, the court would prefer cases to be satisfactorily decided in individual countries, applying the European Convention in their courts.
It takes extra time to seek justice in Strasbourg. No one wants a repetition of the Golder case where, although Mr Golder won, judgement was delivered a day after he died. The European Court only wants to be a court of last resort, but it is essential that it retains this role of safety net for those of us in the UK.
It is not even that the European court is entrenched in archaic tradition. It has cooperated with governments when they have demanded changes that do not affect its essential independence. In response to criticism, the court transformed itself from a part-time to a full-time operation and has streamlined its admissibility criteria.
It is also rarely acknowledged that it is in a government’s self-interest that the UK remain party to the European Convention. The European convention serves as a valuable shield, diverting criticism away from the government of the day, whatever its political persuasion happens to be.
For all these reasons, celebrating Magna Carta while seeking to deny its European legacy would be like withdrawing from the Ashes – throwing a tantrum because we sometimes lose.
Geraldine Van Bueren QC is Professor of International Human Rights Law, Queen Mary University of London and Visiting Fellow Kellogg College Oxford.