Euro Rights Blog: Leaving Europe, not leading Europe

The British Conservative party has steadily increased its anti-ECHR rhetoric over recent months. Yesterday at its party conference that policy was unambiguously restated. Theresa May, the Home Secretary, called for the Human Rights Act (HRA) to be repealed and for the UK to leave the ECHR. The Lord Chancellor, Chris Grayling, echoed this : ‘We will scrap Labour’s Human Rights Act … We will make sure that with legal rights go legal responsibilities … Our Supreme Court should be in Britain and not in Strasbourg.’ This rhetoric is, no doubt, a consequence of the UKIP ratchet effect; a ratchet effect that is having a damaging and long-lasting impact on both British and European politics. However, the Poujadist agenda of the Conservative party will have serious consequences for both Britain and Europe if it ever comes to pass. A future Conservative administration no longer seeks to lead in Europe; it seeks to leave Europe.

After WW2 the UK led the development of a new world order with human rights protection at its core. The world order was to be based on justice, peace and human rights. The UK’s leadership in helping to rebuild the world after the cataclysm of the war was manifest. From the Atlantic Charter (1941) onwards, the protection of human rights was a key post war aim for Great Britain. Post war, the new international order created under the United Nations was to be supplemented by regional bodies and human rights guarantees. In the Americas the OAS was established and the American Declaration on the Rights and Duties of Man adopted in 1948. In Europe meanwhile the leadership of Winston Churchill and others led to the establishment of the Council of Europe and ultimately the adoption of the ECHR. These charters of rights were drafted in the shadow of the Universal Declaration on Human Rights [See Preamble to ECHR]. If the UK leaves the ECHR, and presumably the Council of Europe, it will mark the end of British leadership in this vital aspect of the post war order.

This new international law – a form of higher law – was to ensure peace and justice through human rights guarantee. In Europe this was best guaranteed by ‘an effective political democracy’. In Europe this took the form of a revolutionary international court where individuals could in the final resort bring an action against their state for a violation of their rights. And the convention that guaranteed those rights set them out in the context of a democratic society governed by the rule of law. Save with the irreducible guarantees of human dignity, rights and freedoms were not absolute but subject to those limits and restrictions compatible with democracy and the rule of law. Democracy was not to be equated with the crude majoritarian calculus of a transitory majority in the legislature. It was to provide a yardstick for measuring the necessity of limiting rights. A culture of justification was to replace the culture of authority.

On the domestic level the protection of human rights was in the main guaranteed by written constitutions (e.g. Basic Law of Germany) that were enforced by judicial review. For the United Kingdom, however, the situation was different. The constitution provided no such constitutional guarantee of rights and freedoms. The supreme power of Parliament was constrained only by constitutional convention. Thus for the UK the ECHR was until 2000 the only form of effective law that protected the rights and freedoms of British residents. Today that protection is augmented by the practical justice of the HRA. The latter is a weak bill of rights, oxymoronic in nature, but highly effective in a peculiarly British way. The poor historic record of the UK before the European Court had, as many suspected, been a result not of widespread human rights abuses, but an absence of effective domestic protection.

Yet this framework is to be torn up and replaced. Why? No reasoned case is presented. Only soundbites and press releases masquerading as speeches. And where will this leave the statutory protection of human rights in the UK? Dependent on a British Bill of Rights drafted by Michael ‘Prison Works’ Howard it seems. By May next year we will know for certain but the best we can hope for from that source is some type of bumper sticker bill of rights. Declaratory, and high sounding no doubt, but of little constitutional consequence. We will be back on the road to law without rights. The very thing that those who fought valiantly for a new world order had sought to prevent. This cannot be allowed to pass.