03/02/12

Opposition to the European Court of Human Rights has recently intensified within the United Kingdom as a result of some considerably controversial judgements. Before David Cameron went to Strasbourg it was even leaked that he was prepared to threaten to withdraw Britain from the ECHR. The criticism brought against the Court prompted a strong and unusual reaction from Sir Nicolas Bratza, the incumbent President of the Court.

In an article published in the ‘Independent’ on 24 January 2012, Sir Bratza states “The UK can be proud of its real contribution to this unique system and its influence in bringing about effective human rights protection throughout the European continent.” Indeed Britain was instrumental in laying down the basis for the establishment of the European Court of Human Rights. However, what should be taken into account are the reasons for creating this new court, which came into existence soon after World War II.

The purpose for setting up a European Court was to prevent fascism from ever again working through and perverting the democratic systems of any country within continental Europe. Unlike its neighbours, the United Kingdom was not affected by fascism during the Second World War. Under the leadership of Winston Churchill, Britain withstood the rise of fascism throughout Europe and eventually overcame it with the assistance commonwealth forces in particular and the United States of America. The genuine promoter and defender of democracy and human rights in Europe was and remains the United Kingdom of Great Britain and Northern Ireland.

The experience of what had occurred in Germany over the previous two decades was crucial in the drafting of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which instituted the European Court of Human Rights. Adolph Hitler used the democratic system to rise to power and then progressively enforced a fascist programme, destroying democracy and the fundamental rights of the individual. This is what the European Convention on Human Rights was intended to prevent in the future. The Convention therefore guaranteed the basic civil and political rights of the individual that had been so severely violated by the Nazis throughout Europe, as they compelled every conquered nation to collaborate with them. To this day these are still the essential rights that are protected by the Convention.

The main procedure conceived by the original treaty for applying to the court was for a member state to initiate proceedings: one member state could challenge the respect of human rights and fundamental freedoms by another member state. However, it soon transpired that states were reluctant to take each other to court. They were more inclined to turn a blind eye to suspected human rights abuses for the sake of preserving diplomatic relations with partner states. As a result the alternative procedure, which relied upon the individual initiating proceeding against a state, became the one that has been most relied upon.

Due to the fact that Britain had nothing to be ashamed of concerning the protection of human rights and fundamental freedoms to the benefit of its citizens and all those who found refuge on its territory, during the Second World War, there was no imperative for the United Kingdom to join the European Convention on Human Rights. On the contrary, it was compelling necessity for Germany and many other countries which compromised with the Nazis, such as France, to adhere to the Convention. Surprisingly enough, the United Kingdom joined the Convention as early as 1951 and in 1966 recognised the individual right of petition to challenge any decision made in its courts before the European Convention on Human Rights. Paradoxically, the individual right to petition against court judgements was only granted by France in 1981, thirty-one years after the Convention was signed in Rome.

In the aftermath of the trauma caused by the Second World War when the Convention was written, there was a general agreement on what the fundamental rights should be and their interpretation, but over the past sixty years the Court has developed a new approach to human rights. The convention has been described as a living instrument that may be fashioned to suit the evolution of society. As a result, in a number of cases the decisions made by British courts have been found in violation of the Convention. It may be said that to decriminalise homosexuality is an improvement. But this is without considering the adverse consequences homosexuality has on society and especially on young people. In the same way it could be said that the flogging by police officers of a 15-year old boy is “inhumane and degrading treatment”, but the impact of a lack of discipline on children and young people has not been remedied and has had a detrimental effect on society as a whole.

What appears to be the problem is that the European Court of Human Rights does not have a jurisprudence that is based on a sound ethical foundation. This leaves the door open to an interpretation of fundamental human rights that is driven by the evolution of society rather than by principles. The real danger for the United Kingdom therefore comes from an approach to human rights that is often in contradiction with the biblical principles on which most of UK Common Law has been based and developed over the centuries. The defence of human rights is a noble cause, but this can only be satisfactorily achieved if the European Court gives an interpretation to human rights that is compliant with the Judeo-Christian heritage that European countries have in common.