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Andrew Tettenborn: Part two of the great escape is quitting the ECHR


An ongoing argument in Northern Ireland over abortion rights gives us yet more reason to doubt whether Britain’s continued membership of the European Convention on Human Rights benefits either the UK or those who live there.

Some background. Put simply, abortion law in England is liberal, while that in Northern Ireland is not, effectively limiting terminations to cases of serious threats to the mother’s life or health. There are reasons for this, the most important being the difference between public opinion in Britain (fairly progressive) and Ulster (on the whole much more conservative). Agree to differ, perhaps? Accept diversity? Never, say the elite. Ranging from the Northern Ireland Human Rights Commission to the BMA and even Amnesty International (!), there are no prizes for guessing where they stand. Northern Ireland is an anomaly: its ignorant, backward electorate must be dragged into line with the rest of us by whatever methods stand available.

These methods include, not surprisingly, the Human Rights Convention. Why not go to court and argue that its Article 8 right to private and family life, though originally appearing as an antidote to Nazi eugenics, now means that young pregnant teenage girls should effectively be allowed abortion on demand? Just over a year ago a judge in Northern Ireland, deaf to irony and to the delight of progressives and academics alike, agreed with just this claim. Article 8, he said, required abortion to be permitted in respect of any pregnancy due to sexual crime (including not only rape but  under-age sex). This was an all-important human right, impervious to any discretion allowed to the State in matters of social policy, and remained valid notwithstanding (perhaps because of) the benighted nature of Ulster public opinion. The Northern Ireland government has quite correctly appealed this curious holding, and judgment is due sometime soon. But don’t hold your breath.

As if this was not enough, there are also ongoing proceedings in England. Girls from Northern Ireland have always been able to have abortions in Britain. But they have to go private, since NHS England, understandably, will not give Ulster residents what they cannot have from the (devolved) NHS in their home jurisdiction of Northern Ireland. Two such residents, backed by pressure groups including the BPAS, the Alliance for Choice and the Abortion Support Network, now argue that this will not do. They have, they say, the same right as those living here to free abortions in England courtesy of the taxpayer, either because the NHS legislation says so or – you guessed it – because refusing it infringes their human right to private and family life. So far they have lost. But they have appealed to the Supreme Court, where in a memorable aside Lady Hale, a justice not well-known for hiding her views, expressed herself “much more interested in the human rights argument”  than the boring national health legislation. Expect a decision in a couple of months or so: don’t be surprised if they win.

Whatever happens, these developments are disturbing. For one thing, the only reason we should ever allow a (human) right to come in as a trump card overriding the ordinary political process is that it is not only special but extra-special: so important that a state failing to grant it deserves ostracism from the civilised community. Now, even if you don’t like the Northern Irish abortion legislation (and there are plausible arguments that in some respects it is too narrow), it is grotesque to say that states must be outside the pale of civilisation because they refuse terminations to 15-year-olds who didn’t take precautions. And the same applies in spades to the argument that England is similarly situated because its taxpayers decline to make up for this omission in another jurisdiction across the Irish Sea.

But there is another point too, if anything more worrying. What we have here is a confirmation of something some of us have suspected all along. By and large, in the UK the European Human Rights Convention isn’t being used to protect victims of serious oppression. Instead, it has become the plaything of pressure-groups who seek to impose their world-view on the rest of us without the bother of actually engaging in the democratic process or – Heaven forbid – trying to persuade us to vote for what they want.

This sidelining of democratic institutions is profoundly unhealthy. As soon as Theresa May has said goodbye to the manipulators and back street operators of the EU, she must turn her mind to withdrawing the UK from the Human Rights Convention and replacing it with something more in keeping. It’s quite easy: all she has to do is give six months’ notice under Article 58. Much less than the two years required to extricate ourselves from the EU: no negotiations to go through: and, as far as I can see, she doesn’t even need parliamentary approval to do it.

(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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