Cameron’s human rights dilemma
The Kremlin has never been taking a closer interest in the internal workings of the Conservative party in Britain. The re-elected Vladimir Putin is hoping that Tory MPs will succeed in their assault on human rights in Europe. Like Britain, Russia is a member of the Council of Europe and a signatory to the European Convention of Human Rights. As such, Russia is meant to abide by the rulings of the European Court of Human Rights.
But like the offshore-owned Tory press, the Kremlin hates being told what to do by the ECHR. The Duma joins with Tory MPs in preferring opt-outs from the ECHR if the court arrived at a ruling that annoyed the parliaments in Moscow and London. At the Council of Europe, Conservative MPs sit with members of Putin’s Duma faction in a small group that has limited influence on the workings of the Council of Europe and the ECHR. Across the river in the much newer European parliament building in Strasbourg, Tory MEPs sit with clericalist, nationalist parties.
Tories at the two Strasbourg assemblies keep this odd company because of the rightwing Tory obsession with Europe and David Cameron’s insistence that Conservatives keep themselves as isolated as possible from mainstream centre-right European politics. This approach has fed back into London politics with the current imbroglio over the European Convention of Human Rights. The Convention’s enforcement arm is the European Court of Human Rights which for 60 years has been the ultimate court of appeal for European citizens who believed and believe that their rights were being infringed by national parliaments and national judicial systems.
The European Convention on Human Rights was written by Conservative political lawyers after the second world war. The Nuremberg trial process between September 1945 and October 1946 strengthened the view that some kind of supranational law on human rights was needed. The Nuremberg process was very much victors’ justice with the Soviet butchers of Katyn standing alongside British QCs and American legal luminaries as prosecutors and judges. But trial was based on rigorous evidence and full judicial examination. Churchill had wanted the Nazi criminals executed without trial much as today’s Tories simply want to expel any ghastly terrorist to be tortured and sentenced after a trial in a country far where human rights are not held in high regard and where much evidence is likely to have been obtained by torture.
In the rest of Europe, human rights are usually guaranteed by the constitution. In constitution-free Britain, the defence and protection of human rights has been a waltz between parliament, Whitehall and the courts with the press and public opinion bearing down on decisions. Until 1997, respecting the ECHR was a treaty obligation, part of international law. The only way to avoid implementing a ruling of the ECHR would be to quit the Council of Europe, tear up the Convention and say that British citizens no longer needed the backstop of an appeal to a court or last resort in the narrow area of human rights.
This would be a monumental step of world importance. If the UK removed itself from the jurisdiction of the European Court of Human Rights, as many Tory MPs now argue, it would strike a fatal blow at the concept of universal human rights upheld by a judicial process.
Britain tried to reduce the role of the ECHR as a court by incorporating the European Convention on Human Rights into domestic law. The initiative was led by Derry Irvine in the early years of the Labour government. It appeared to make sense to allow British judges to make as many rulings as possible on the basis of the Convention rather than have British citizens always taking their cause and case to Strasbourg.
Some judicial rulings have upset illiberal forces in Britain for whom the rights of unpopular figures like those linked to terrorism or convicted prisoners are held to be of little value. To appease the Daily Mail, for which anything with the word ‘Europe’ in its title is a threat to Britain, at the general election Cameron promised to create a British Bill of Rights. But he and Ken Clarke are now confronted with the problem that any legislation on human rights in the UK can be decked out in as many union flags as the Daily Mail would wish for but it cannot avoid the UK’s formal treaty obligations to abide by the ECHR and rulings from Strasbourg.
Cameron has to decide whether to openly tear up the treaty binding Britain and 46 other European nations into the ECHR. This would be welcome by authoritarian despots all over the world and by those like Putin who are fed up of being told they have to abide by the ECHR.
Four Tory members of the Bill of Rights Commission which Cameron and Nick Clegg set up to try and resolve this dilemma have now resigned as they cannot persuade their colleagues, including small ‘c’ Whitehall conservatives, to go down the road of Britain destroying the European Convention and Court of Human Rights.
The problem is part of the wider Tory dilemma of Britain’s relationship with Europe. But it shows how many Conservatives are now adopting an acceptance of authoritarian ideology which seeks to place courts more under political control. The liberal Whiggish legalistic traditions of Toryism have been sidelined with only the ageing figure of Ken Clarke QC trying to sustain them. The question is whether Britain as a whole wants to bury the post-Nuremberg concept of international human rights law. Labour no longer has any experienced QCs in the Commons. But it would be dangerous if Labour slowly drifted into Tory ground on human rights just for the sake of a few approving pats from the offshore-owned press.
Denis MacShane is MP for Rotherham and a former minister for Europe
Conservatives, Council of Europe, Daily Mail, David Cameron, Denis MacShane, ECHR, Europe, Labour, law, Nick Clegg, Putin, Whitehall, Winston Churchill