Despite having been a pioneering signatory to the European Convention on Human Rights in 1950, the UK is considering withdrawing and damaging the entire basis of the Rule of Law on the European continent.
Waiting for a lawyer to arrive before starting an interview with a suspect is something I did many times when policing in the UK. Given the consequences of admitting to a crime, the presence of a lawyer representing the interests of the suspect during a police interview is an obvious safeguard against miscarriages of justice. The right to legal advice during an interview is well known in Britain, as it often features in British TV crime dramas. In some parts of Europe, this right has not always been practised. But thanks in part to the European Court of Human Rights (ECtHR), things have been moving in a positive direction.
The right to legal advice was first established after police in Switzerland interrogated a man who had repeatedly requested a lawyer but was denied one. He subsequently took the Swiss government to the European Court of Human Rights. The ECtHR ruled that his right to a fair trial (one of the 13 rights in the European Convention on Human Rights) had been infringed. His success was due in part to case law from the UK. Following the case of Imbrioscia v. Switzerland in 1993, the ECtHR has ruled for justice for citizens who were denied access to a lawyer in countries as far apart as Belgium, Romania, and Azerbaijan. ECtHR judgements have caused laws and investigative practice to change in many more countries.
But this story of British standards and experience promoting positive change in other parts of Europe is not the narrative UK citizens hear about the European Court of Human Rights. A British newspaper last week described the ECtHR as making ‘a mockery of British justice’. The newspaper criticised ECtHR rulings that prevented people from being deported to countries where they were likely to face torture.
The European Court of Human Rights is not popular amongst British Conservatives. David Cameron’s party are expected to include a promise of leaving the Court in their manifesto for the UK General Election in May 2015. The Conservatives’ concern is that the Europe-wide court is limiting the power of politicians through a very small number of rulings that have found an aspect of British law to be incompatible with the human rights that Britain agreed to uphold by signing the European Convention on Human Rights. These rulings have ensured the protection of anonymity for journalists’ sources and challenged Britain’s absolute ban on prisoners voting in elections.
Consequences beyond the rhetoric
It is often forgotten that the ECtHR has helped protect the rights of UK citizens. Another memory from my time with the police is of a conversation with a mother who was in tears at the prospect of her son’s DNA being stored indefinitely after he was suspected of a minor offence. Following a judgement by the ECtHR in 2008, the UK changed its law on DNA retention – and, as a result, her son’s DNA record will have now been deleted.
In addition to furthering positive action in the UK, the ECtHR has protected rights elsewhere. Judgements have required Moldova to end censorship of TV news (2009); Russia to improve prison conditions (2002); and France, Cyprus and Turkey to take more effective action against forced labour, sex trafficking and domestic abuse respectively. Britain leaving the ECtHR will damage human rights progress in other parts of Europe. What message does it send new and emerging democracies, if a founding member of the Convention is considering leaving? Britain will be providing an excuse for inaction by other governments who find the Court’s human rights judgements inconvenient. What might Britain’s decision mean for human rights in Russia, for example?
Dis-investing in peace
When British politicians, such as Home Secretary* Theresa May, talk about scrapping the Human Rights Act, they are referring to the law passed in the Westminster Parliament that makes ECtHR judgements enforceable in the UK. The British press talk about a ‘foreign court’, but this is a European court in which Britain has invested. It is an investment made so that countries across Europe are encouraged to respect basic human rights. An investment that underpins a more peaceful Europe.
The ECtHR is not an institution of the European Union, but of the entirely separate Council of Europe. Which in fact, has almost twice as many member countries stretching from Iceland to Serbia and Turkey. The only European country not to be a member is Belarus. The UK would not be the first county to leave the Council of Europe. Greece left between 1967-74 whilst governed by military dictatorship. However, this further underscores the symbolic significance of leaving, which is poorly understood in the UK.
The Court allows any one of 800 million people to bring a case, but only when a person has both a case based on the European Convention on Human Rights and has exhausted all opportunities for legal redress in their own country. These rights include the right to life, prohibition of torture and the right to a private and family life.
British citizens should not be excluded from the protection of the European Court of Human Rights. But perhaps more concerning is how Britain’s departure from the ECHR would be interpreted in countries where the protection of human rights have a shorter history.
Leaving the ECtHR would ultimately be a decision for the British Parliament. Next year’s UK General Election will be important, but in the meantime, UK residents may wish to write to their MP if they share our concern.