‘Hard to believe that they could be serious’ – Professor Martin Scheinin and the British Bill of Rights

Written by Nicholas Barrett on . Posted in Current features, Features

Court room of the European Court of Human Rights

Court room of the European Court of Human Rights

Adopted in 1950, the European Convention on Human Rights can be viewed as Europe’s collective response to the horrors of the holocaust and Second World War and its repudiation of Nazism, fascism and Stalinism. Today, the Europe the convention emerged from, still in the shadow of the great dictatorships and often referred to as ‘the midnight of the century’, can feel like a distant place. In 2014, the continent is not a place where people expect to become the victims of human rights abuses. We feel free to express our beliefs, to love whoever we want to and to live without fear of arbitrary arrest and persecution. Today the vast majority of Europeans have never had to consider any other world; the closest many will ever come are the novels of Franz Kafka and George Orwell.

In modern times it is easy for some to regard the Convention as a nuisance. This view recently became popular in Britain when the European Court of Human Rights ruled that Abu Qatada, a radical Jordanian cleric with alleged links to al-Qaeda, could not be deported to his home country to face trial for acts of terror committed in the 1990s. After years of legal wrangling between London and Strasbourg, Abu Qatada was deported to Jordan (upon assurances that he would not be subjected to torture) and was later acquitted. The debacle, coupled with an unpopular ruling giving prisoners the right to vote has led government ministers to question the use of the European Convention and the British conservative party are now promising to introduce “a British bill of rights” and keep the European Court of Human rights as “an Advisory body… able to make recommendations.” In his recent party conference speech the prime minster, David Cameron was ardent. “Let me put this very clearly,” he said “we do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights, to be passed in our Parliament, rooted in our values.”

Professor Martin Scheinin

Professor Martin Scheinin

Martin Scheinin isn’t impressed. As a Professor of international law and human rights at the EUI, he has been keeping a close eye on the direction of political rhetoric on the issue of civil liberties. “The idea is that the European Convention would remain an international treaty binding for the UK but that it would have no place in domestic law. Instead, the text of the Convention would be rewritten into domestic law, so that Parliament and local courts would have ultimate authority as to its interpretation.”

For Professor Scheinin the proposal is unworkable. “The strategy” he says “includes a threat that if the Council of Europe does not appreciate the new way in which the UK is dealing with its obligations as a party to the Convention, then the UK would denounce the Convention. This has happened only once before, namely by the military dictatorship in Greece in 1970. Now the conservatives are threatening to do the same but it is hard to believe that they could be serious.”

In 1967 the Greek military junta was accused of violating the convention by Denmark, the Netherlands, Norway and Sweden. It is estimated that thousands of Greek prisoners were tortured before the dictatorship collapsed seven years later. Britain however, is one of the few countries in Europe not to have experienced any form of dictatorship or totalitarianism within living memory. Fascism and communism were witnessed from a distance and civil liberties have only really been regarded in the context of post 9/11 anti-terror laws. Perhaps this is why David Cameron’s speech did little to provoke criticism from the British press.

Yet, from a distance, Professor Scheinin is detecting the potential emergence of a concerning precedent. “These ideas” he warns “are very significant, as they deliver a very dangerous message across Europe, including to Russia which is a party to the Convention and bound by its rules.”

The European Court of Human Rights is often criticized both for its expansive reach, and ironically, for the complete opposite too. Claims that the Convention is too invasive are dismissed by Scheinin, who believes that the court should be going further to protect the rights of Europeans. “The European Convention has not lost its significance, even if it by current standards is a modest and conservative human rights catalogue. It is silent on many important issues, including most economic, social or cultural rights. And its provision on non-discrimination is far too cautious and circumscribed to be effective in addressing many forms of discrimination in European societies.” Scheinin also wonders if the current appetite for reform actually has much to do with the court’s design, “why is this happening now? Purely for political reasons, including the rise of the UK Independence Party (UKIP) and some defections from the conservatives to UKIP.”

It is hard to ignore the fact that the announcement came days after the second defection of the year of a conservative MP into the arms of UKIP, but isn’t this how democracy is supposed to work? If a small party suddenly becomes popular it will naturally exert enough pressure on its established rivals to force a reaction. So is the enhanced influence of UKIP symptom of a growing public mood or just one of political inertia? After humbly reasserting that he is “a lawyer and not a political scientist”, Scheinin begins to ponder the landscape, “I am tempted to say that this once again looks like a panic reaction by the conservatives. Political leaders have an unfortunate habit of going with the wind of populism when the right thing to do would be to maintain the course but reduce the sails when the weather gets rough. When mainstream parties start to imitate the populists, this only perpetuates the problem.”