The ECHR must be saved from itself
by Max Wind-Cowie
Just before Christmas Demos launched Open Dialogue – a collection of essays looking at counter-intuitive threats to our open society. My contribution, discussing human rights, made the claim that the ‘European Court of Human Rights [is] the single biggest threat to human rights’ here in the UK. Yesterday the ECHR was kind enough to reinforce the point.
The British Government is hoping to deport radical Islamist cleric Abu Qatada and to return him to his home country of Jordan. He’s been here since 1993 and was only ever granted a temporary leave to remain – he’s not a British citizen and he has no legal or civil right to live here in the UK. Whilst in our country this man has busied himself consorting with terrorists – he acted as a spiritual adviser to Richard Reid (the shoe bomber) and to Abu Hamza – and has picked up a couple of convictions-in-absentia back home in Jordan for plotting terror attacks. As I say, on this basis and because Mr. Qatada has no pre-existing right to be here, the British Government took the decision that we’d be better off shipping him back to Jordan to serve out the lengthy prison sentences he’s acquired in his home country. But we won’t be doing that. The ECHR says we can’t.
The Jordanian Government, it seems, might use evidence from people it has tortured to prosecute Mr. Qatada and others for further crimes. Never mind that we have signed a memorandum of understanding in which the Jordanian Government commit to not laying a finger upon Qatada’s head, never mind that he has no right of abode here or that justice demands he serve his sentences for the crimes he has committed abroad, this suspicion of something that might happen outweighs all other considerations in the eyes of the ECHR. Case closed, game over.
And one step closer, I fear, to game over for the ECHR (at least as far as Britain is concerned). The strength of human rights, the thing that has delivered them over a relatively short period of time into the mainstream of public consciousness across the Western world, has always been their proximity to our natural sense of the just. Protecting human life and human dignity are part and parcel of the fabric of our morality – this code of conduct and behaviour was so easily assimilated because it seemed so self-evidently right. The more that the ECHR deviates from natural, straightforward and common-sense visions of justice the more of a threat to human rights as the overarching frame of our politics it becomes.
The British public’s commitment to human rights is being eroded by decisions such as the Abu Qatada judgment – they undermine our capacity to believe that human rights have space for the rights of communities, potential victims and civility. More and more it appears that human rights have become a good in and of themselves, with almost biblical weight attached to their letter and little regard to their spirit. More and more we shy away from embracing them and instead regard them as silly, vain and irrelevant. This decision is merely the latest in a long line of poor decisions that confirm the ECHR’s itself is the single biggest threat to human rights here in the UK. It will either have to change, and change dramatically, or it will die.
Max Wind-Cowie
Adrian, your argument strikes me as fairly self-defeating. If Human Rights are simply whatever a court decides them to be then they are not, presumably, intrinsic goods. Your assertion that they be determined purely through the court strikes me as a plea for a kind of Judicial Authoritarianism that runs against the spirit of democratic accountability that Human Rights frameworks demand. Finally. I would point out that I'm not arguing for HR to be applied less universally, or for Mr. Qatada to be singled out - rather I am disputing the basis of a judgment which means the wider community is unable to eject someone who has no pre-existing right to remain despite the fact that the Court accepts provisions made to ensure his safety. I don't want the specific Qatada decision overturned because I dislike him (although I do dislike him, for the record), I believe it to be illegitimate across the board.
Adrian Voce
Your reference to 'judicial authoritarianism' is nonsense, as I didn't say they were "whatever a court decides them to be". They are what various laws, treaties and conventions state them to be. What these tend to have in common is that these rights are recognised as universal and inalienable.
Max Wind-Cowie
No treaty signed by Britain has ever agreed that prisoners must be able to vote or that the potential use of 3rd party evidence from possible victims of torture is a barrier to deportation Adrian. The ECHR is guilty of imaginative, progressive reinterpretation of the Convention - an expansionist approach to the rights there enshrined. This would be, sort of, ok if we had some capacity to realign the Court's use and interpretation of the Convention via due democratic process. But we don't. Thus judicial authoritarianism.
Adrian Voce
I can't agree with this analysis. Humans rights, as interpreted by the courts, must apply universally. If it is a violation to deport someone to a country that has compiled a 'case' against them through the use of torture, that must apply regardless of crimes that person may already have been convicted of. A more muscular liberalism would demand a greater adherence to human rights from our allies - not apply them on a selective basis according to what plays well in the Daily Mail.