Contribution
My Lords, I congratulate the noble Lord, Lord Alton, for whom I have an enormously high regard, on securing this debate and his introduction to it. It is a paradox that defenders of the supranational European Court of Human Rights invariably begin with an appeal to British chauvinism laced with deference to Conservative icons by invoking the creation myth. That goes as follows: “The ECHR was a British invention, inspired by Churchill, drafted by Maxwell Fyfe, which codified historic British rights. Since we were the first country to ratify it, it must have been eagerly endorsed by us”.
That is almost entirely false. Attlee’s Government ratified the convention with great reluctance and only on condition that the future European court would have no jurisdiction in the UK since British people would not be allowed to take cases to the court. They also treated the convention as non-binding, deliberately not altering laws known to be incompatible with it. Moreover, when Churchill returned to No. 10 a few months later with Maxwell Fyfe, then Lord Kilmuir, as his Lord Chancellor, despite some ambiguous enthusiasm for it when in opposition, he adopted exactly the same position as Attlee, as did subsequent Conservative Prime Ministers—not allowing the court jurisdiction in the UK.
The second myth about the ECHR was that it simply codified British rights which had evolved over centuries. If that was all it did, British membership would confer little benefit and leaving would be no loss. This myth implies that few British laws would be incompatible with the convention. If only. Judgments have been made in 567 cases and the UK found to be in violation in one or more respects in no fewer than 329 of them by the Strasbourg court. In addition, the court has decided over 25,000 British cases by rejecting them or declaring the vast majority inadmissible, but after enriching the lawyers. That would be no surprise to those advising Attlee’s Government, who warned that allowing recourse to Strasbourg would provide
“a small paradise for some lawyers”—
now among its most enthusiastic supporters. In the immigration and asylum tribunals alone, human rights cases were 40% of the 350,000 cases received over the last eight years. To say it has no impact within the UK is an absurdity.
The original purpose of the European court was not to fine-tune each country’s statute book but to protect fundamental freedoms, from torture, slavery, arbitrary arrest et cetera. The third myth is that the court has succeeded in this objective. It was always unrealistic to imagine that any regime which was prepared to use torture, slavery or arbitrary arrest would be put off by the prospect of an adverse ruling by a foreign court. In practice, whenever an authoritarian regime has come to power, adherence to the ECHR has not dissuaded it from trampling on human rights. When the Greek colonels faced an ECHR ruling about the use of torture, Greece simply withdrew from the convention. Russia was expelled for the full-scale invasion of Ukraine, not for its rampant domestic human rights violations. Belarus abandoned its observer status rather than implement convention rights. Both Azerbaijan and Turkey have gone pretty far down the road to authoritarian regimes while still remaining in the convention. It is little known, but one reason that France did not even ratify the convention until 1974 was that it was aware of the use of torture and other abuses of human rights during the war in Algeria and had other reasons afterwards for remaining outside. Indeed, it did not allow its citizens to take cases to Strasbourg until 1981 but suffered little opprobrium for that.
The claim that if Britain left it would be joining Belarus and Russia is puerile. We would be joining other common-law countries, including democracies such as Australia, New Zealand and Canada, which uphold human rights without relying on a supranational court. Like them, we would make our laws democratically, not hand over the right to make laws to an international court, giving it the power to legislate rather than enforce the law.