Human rights, British wrongs

We could be spared our blushes by incorporating the European convention , argues Patricia Wynn Davies
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The Independent Online
If there is a sane lesson to be learned from the Lord Chancellor's unusual visit to the European Court of Human Rights on Monday, it is the one HM Government is least willing to learn.

The ruling by the Strasbourg court the same day, upholding the archaic English law of blasphemy in the dispute over the little-known video Visions of Ecstasy, was exactly the sort of case that should never have reached it, one official remarked, correctly. The Government should have done the sensible thing years ago and made the European Convention on Human Rights part of British law. Then cases such as this - involving the "margin of appreciation" principle that individual countries have wider latitude in defining human rights in the moral and social field - would reach the court less often, as British judges would be applying the convention themselves.

This would have been one way of ensuring that more notice was taken of British laws and traditions, and that less dirty washing was laundered on the international stage. But successive Conservative administrations have chosen instead to make human rights claims as difficult to pursue as possible - forcing individuals to embark on the tortuous business of complaining to Strasbourg, and then engaging in outraged spin-doctoring when a decision - years later - goes against the Government.

Monday's visit can be traced directly back to last year's ruling, by a narrow majority of the Strasbourg court, that the killing of three unarmed IRA terrorists in the Gibraltar "death on the rock" incident involved unnecessary force. Michael Heseltine, the Deputy Prime Minister, led the wave of protests; none the less, the individual right of individual petition was still quietly and permanently renewed. "Influence", advised Whitehall and the Foreign Office, was the practical and politically acceptable way forward. Hence Malcolm Rifkind's position statement last year, declaring the Government "concerned about some recent judgments of the court" and this week's lobbying exercise, however subtle, by the Lord Chancellor, Lord Mackay.

It is the most recent manifestation of the Government trying to have it both ways over Strasbourg. Britain has won more cases than is commonly believed, and there is annoyance in Government circles whenever its Strasbourg record is paraded in the media - 42 violations of the convention, 25 wins and 10 pending cases out of a total of 81 complaints over the past 36 years. Italy has suffered 91 violations over 23 years and France 38 over 15 years, it was pointed out this week. But if the UK's record is not so bad after all, why does it choose to dispatch the head of its judiciary, who also happens to sit in the Cabinet, on a mission to persuade a set of independent judges to take more account of British ways?

Officials have spotlighted five past and two pending cases where the Government claims the "margin of appreciation" should have been, or should be, applied in Britain's favour. Significantly, Lord Mackay's visit has come just a few weeks before a ruling in one of them, in which the former Guinness chief executive Ernest Saunders has complained under article six of the convention that he was deprived of a fair trial when statements made under compulsion to Department of Trade and Industry inspectors were used in evidence against him. The Government insists that the Bill Goodwin case safeguarding the confidentiality of journalists' sources was wrongly decided, and that the court was wrong to interfere with the Home Secretary's discretion to release young murderers held at Her Majesty's Pleasure. The list goes on, underpinned by the belief that "human rights" is somehow a subject that should only trouble less developed democracies than ours.

Making the convention part of UK law would give those cases that did go all the way to Strasbourg the benefit of UK judges' views on whether a person's human rights had been breached. But the Government believes it is better to carp from the sidelines, seek to exert "influence" - with possibly the opposite effect in many cases - favour government service lawyers for judicial appointment, and issue vague threats. "For the support of the citizens of the Council of Europe countries for the convention and its mechanisms to be full-hearted," Mr Rifkind loftily declared in his statement, "it is important that the Strasbourg institutions ... respect the decisions of local democratic institutions and tribunals."

The strategy could have been specifically designed to make Britain's position worse, not better - and could have other unforeseen ramifications.

Current reforms of the Strasbourg machinery will create a full-time rather than part-time court, requiring a full-time British judge, appointed well before the age of 70. The more prestigious Britain's judge is, the more impact he or she will have in shaping the way the new structure operates.

But what kind of independent-minded, high-ranking British legal figure - even assuming he or she were put forward by the Government as a candidate - would go? Gordon Slynn, Britain's former judge on the EU Court of Justice at Luxembourg, became a law lord on his return to the UK. But the Government has ensured the Strasbourg court is so undervalued that the idea of someone in that league considering appointment is dismissed as "fanciful" in Strasbourg circles.

It is time for a change of direction beginning, as Labour has pledged to do, with incorporating the convention. Lord Mackay has suggested that this would draw the British judiciary into the "political" arena, and some judges seem uneasy. But they would all simply get on with the job, however tricky, of reaching decisions based on legal principle. The sooner they are asked to get on with doing it the better.

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