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HomeNewsAndrew Tettenborn: The ECHR is a far cry from its anti-fascist origins

Andrew Tettenborn: The ECHR is a far cry from its anti-fascist origins


Enthusiasts for the European Convention on Human Rights have one constant refrain. The Convention, they say, as British as roast beef, has stood us in good stead for 66 years, assuring us that, in common with all Europeans, we continue to enjoy our traditional rights and freedoms as we always have.

If only. In fact the arrangement we joined in 1950 (see here) is emphatically not the one we find ourselves in today. The scheme of adjudication that so many now desperately want to preserve would be unrecognisable to the 1940s’ lawyers who drew it up. And, given the way the rights contained in it have been developed since the 1970s, there isn’t very much traditional, or even British, about them either.

The original Convention was never meant to be a bill of rights. It was an inter-governmental agreement aimed at stopping a regrowth of fascism, which stated in general terms a number of rights, and allowed states to report other states party to a Commission for Human Rights for not observing them. Rights of private persons to complain were an afterthought, available only against those states that agreed, and liable to be dismissed if involving issues already investigated by the Commission. The Court of Human Rights existed, but could only hear cases brought by the Commission or a state, and then only against states that accepted its jurisdiction. True, the UK, which had helped draft this document, signed up to it. But it did so for reasons of political expediency, without enthusiasm, and regarding it as a harmless piece of humbug.

What changed, so as to give us the monster we have today?

First, the tail came to wag the dog as individual petitions became universal and “state vs state” claims withered (there have only ever been about 20 of these, but annual individual applications now run well into five figures). This development was (as some had predicted in 1950) in due course used quite deliberately as a Trojan horse, to morph the Convention into a directly enforceable pan-Europe Bill of Rights. This was of course something which a number of Europhile activists had always wanted it to be, on the basis that it would transfer powers away from national governments to a body that would think in the same – internationalist, anti-state – way that they did.

Secondly, this transfer was made much easier because of the Convention’s imprecise drafting style. To say everyone has a right to privacy and family life (Art.8) could mean simply that the police can’t bug your house in case you’re a subversive. Or it might mean that Max Mosley, of Impress fame, can stop newspapers telling the truth about his tastes, a criminal forcibly suppress his previous convictions, and recently a single person insist on parental rights over a surrogate child. The right to a fair trial (Art.6) might mean what it says, a fair trial here: or that we have to protect undesirable aliens from unfair trials elsewhere. It all depends, of course, on who gets to interpret the document. Which brings us to …

Thirdly, the personnel of the human rights establishment. Academics play a much larger part in human rights law than elsewhere, and overwhelmingly have a left-of-centre, activist approach. After all, you get more academic street cred for saying your subject ought to get bigger and more work needs to be done, than for admitting that a good deal of it probably ought to go. You also get brownie points for international co-operation, which fits in just fine with the idea of promoting a European bill of rights at the expense of your own jurisdiction.

And the judges (one for each Council of Europe member)? These days they are elected by the Parliamentary Assembly of the Council of Europe, a potpourri of parliamentarians from Council of Europe member states with little obvious function apart from passing pious, virtue-signalling and highly forgettable resolutions. Of this, a majority belong to either the socialist (Socialist and United European Left) or the very pro-European (Alliance of Liberals and Democrats for Europe) groupings.

The judges can be either lawyers eligible for high judicial office (as is ours, an excellent and erudite Anglo-German QC with experience arguing cases both for and against the government) or, significantly, “jurisconsults” – a conveniently vague term that seems to mean anyone with academic-legal or quasi-legal quangocrat experience, whether in universities, institutes for the promotion of human rights, international bodies, or whatever. Quite a lot are the latter. Which may well explain why so many judgments from the court we have today are based, not on any deep understanding of the conditions in the country affected, but on the kind of reasoning that sounds so well in committee room, law book or lecture hall.

In short, with the European Human Rights Convention it is rather as if we had been invited to listen to a string quartet and then found that halfway through the evening the host had decided on a night of stomping to heavy metal. That’s his right: but we can hardly be blamed if we for our part tell him politely that we would rather be somewhere else.

(Image: James Russell)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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