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Andrew Tettenborn: The ECHR makes the EU look like a model of democracy


The establishment came out in force after June 23rd last year to insist that the will of the people be politely ignored. Then, however, if you were charitably inclined you could at least see where they were coming from. They were rooting for an institution in name democratic (even if, when pushed, they were forced to call it “differently democratic”) and one which, if faulty, was open in principle to change (even if not in the way any sane UK government would want).

How different things are now. Last month another group of the great and the not-so-good rose up in synchronised outrage. On this occasion the casus belli was the suggestion that we might finally abandon the European Convention on Human Rights and replace it with something home-grown and up-to-date (i.e. a British Bill of Rights).

Now, compared with the machinery of the ECHR, the EU is a model of democracy, responsiveness and accountability. The ECHR as an institution is not even nominally democratic. It has no inbuilt mechanism for alteration, and a disconcerting history of mission creep (the protocols quietly extending its reach currently number 8, and the exorbitant ambit of rights such as those to privacy or family life, courtesy of judges engaging in a strange sort of stream-of-consciousness reasoning, would be incredible to a lawyer of 1950).

The Convention deliberately entrusts to a group of 40-odd judges, one for each state party, what is in practice if not in law the last word on great swaths of important social policy – think voting rights for prisoners, residence rights for foreign criminals, religious education in schools, adoption by same-sex couples, the balance between privacy and publicity, and so on. Since most of these judges have little or no knowledge of the UK or its people, these decisions cannot reflect local conditions: instead they depend on thin, abstract reasoning anchored in a kind of transnational moral limbo, which in practice means the kind of easy-listening moral relativism we have come to expect from the bien pensant.

Why the headlong enthusiasm for handing over control of large areas of our public life to unelected decision-makers with no connection with the United Kingdom? (Just think what would happen if someone suggested doing this with, say, taxation or industrial policy). It can’t be the money. True, a number of well-heeled human rights lawyers and advisers to public bodies do have a large – predominantly taxpayer-funded – financial stake in the operation. But the European Commission of Human Rights doesn’t have access billions of euros in pork-barrel funds to distribute to its friends generally. Rather, I suspect, it’s a noxious combination of three other groups.

Number one is the same intelligentsia who so nearly pulled off a Remain vote last year. Well-paid, smug, self-consciously cosmopolitan in their values and deeply distrustful of the electorate outside a few carefully selected London boroughs, they see the opportunity to have their policies imposed on us without the trouble of persuading anyone to vote for them.

Number two is idle politicians. If you need to say something but don’t have something to say (a daily problem for most second-rate representatives), the language of the European Convention trips lightly off the tongue. It’s so much easier to talk about the common heritage of Europe, the desire of the draftsmen of the ECHR to avoid a repeat of World War II, or the need to protect this, that or the other right claimed by some bothersome constituent, than to present your own ideas and then have to risk losing votes by defending them.

Number three, I regret to say, is the academic community and its hangers-on. Not surprising, really: if you’re a youthful idealist smitten with the beauty of human rights, finding a job in the private sector might be awkward and distasteful: far easier to drift into teaching with like-minded people who share your tastes. And of course, it’s not difficult to see which side of the fence most human rights ‘experts’ will be on. If you want a job teaching human rights law, it helps to say that you are passionate to extend them. It’s not the best tactic when applying to say that you think the whole ECHR structure is an outdated scam. Which, of course, much of it is: but that will have to wait for a future post.

Andrew Tettenborn is a professor of commercial law at Swansea University, who also teaches frequently in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

(Image: Thijs ter Haar)

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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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