How to Comply with Strasbourg
Stephen Sedley on attempts to settle the competing claims of European and national courts
The states composing the Council of Europe, now 47 of them, have their own supreme court, the European Court of Human Rights, which – not unlike its US counterpart – has come under increasing fire for interfering unduly in member states’ affairs and trying to make one size of human rights compliance fit all. At a theoretical level there seems something wrong with this critique: one size should fit all, for the meaning and effect of fundamental rights cannot logically vary from one country to another. But at a practical level it addresses a real problem: decisions about legal processes framed at a level of generality large enough to embrace all member states may well be unworkable in some of them.
Vol. 35 No. 3 · 7 February 2013
Helena Kennedy and Philippe Sands (LRB, 3 January) and Stephen Sedley (LRB, 24 January) defend the role and relevance, subject to possible specific reforms, of the European Convention on Human Rights (ECHR), and deprecate the need for a UK Bill of Rights, in the one case expressly and in the other by implication. Far be it from me to devalue the pan-European function of the Convention and its court in defining and protecting our rights, still less do I wish to associate myself with the growing chorus of those, including our Eurosceptic politicians, who advocate the ‘repatriation’ of rights as a stepping-stone to their curtailment or, worse, abrogation.
At the same time, I believe it would be wrong to overlook the significance of the pioneering work done by our own human rights activists on a piecemeal basis, sometimes building on the more enlightened strains of English common law or on statute, to advance rights in Britain ahead of European initiatives. Take the right to life protected by Article 2 of the ECHR. The ECHR is hedged round with qualifications; the original 1950 Article 2 contained an exception for ‘lawful executions’. It was this which gave David Maxwell Fyfe (a prime mover of the original ECHR), as home secretary in 1953, licence to refuse a reprieve of the death sentence on Derek Bentley for the murder of PC Miles, against the advice of his two senior civil servants and the jury’s recommendation of mercy, and in the face of a public outcry. So much for the ‘minimum standard of democratic conduct’ which he had claimed for the ECHR. (Bentley’s conviction was ultimately quashed by the Court of Appeal in 1998.) It was not until 1983 that Protocol 6 abolished the death penalty in peacetime without qualification and until 2002 when Protocol 13 abolished it in all circumstances, thus for the first time in history giving capital punishment its quietus throughout Europe.
But before this had happened, not least because of revulsion over the state killings of Bentley and Ruth Ellis, Sydney Silverman’s private member’s bill in 1965 had abolished the death penalty in Britain. So it was an indigenous bill of rights, a parliamentary statute rather than the ECHR, that blazed the trail when it came to the unqualified right to life in the UK. And why not indeed, as Chris Purnell suggests (Letters, 24 January), a bill to reinforce the ECHR by, for example, promoting the right to work?
Vol. 35 No. 4 · 21 February 2013
Benedict Birnberg is right to emphasise what English law has achieved to enhance protection of human rights under the European Convention on Human Rights (Letters, 7 February). But he is wrong to claim that a parliamentary statute is equivalent to ‘an indigenous bill of rights’. Parliament’s whim offers slender protection against the erosion of fundamental rights. Although an Act of Parliament abolished capital punishment in the UK before the ECHR achieved the same, its reintroduction has been debated in the Commons since then and the e-petition system may force further reconsideration of it. After 9/11 it was domestic legislation that introduced indefinite detention without trial and it was only the ECHR which forced the government to reverse that assault on the right to liberty. While Westminster can certainly supplement ECHR rights, I would not trust it always to deliver the same without the ECHR.
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