On Saturday the Telegraph front page ran a story about the Tory commitment to reclaim rights from Europe. The new battle lines are drawn over issues of 'social policy', over which the Court is alleged to be trespassing upon the proper domain of Parliament and Ken Clarke is committed to reclaiming sole jurisdiction over immigration cases.
This fresh bout of Euro-rights-scepticism has its roots in the fallout over prisoner's voting rights. David Cameron said he felt nauseous at the prospect of prisoners exercising their right to vote. And according to Cameron, the issue of prisoners voting is but one aspect of the 'corrosive influence' of the Court's decisions on 'British life'.
Ken Clarke said that "human rights are misused." What he should have said is that human rights are misrepresented. David Cameron is wrong to chose to fuel contempt for the European Court because by doing so he misrepresents the Court's role and neglects the contribution made to rights protection in the UK.
Philip Johnston argues that it's time to 'clip' the Court's 'wings'. Putting to one side the many minor flaws in his piece, the false accusation over 'social policy' needs to be addressed. The government's complaint is that the Court is deciding matters of British social policy. Let's see about that, shall we?
Firstly, in the case of Marckx v Belgium, the Court declared it's decisions 'cannot annul or repeal' national judgments or laws. The decisions of the European Court are merely declaratory. Parliament, at all times, retains its discretion in how to respond to decisions handed down by the European Court. Indeed the Court regularly invokes the 'margin of appreciation', an adjudicative device that allows states discretion in the administrative, legislative or judicial action required to address rights violations.
If anything, the advisory nature of the Court's judgments and the deference shown to member states' decision making are evidence of the Court's political awareness. It acknowledges the greater proximity of member states to individual cases, the greater capability of national courts to adjudicate on the facts and the unique competence of governments to develop policy. The law reports are full of judgments in which the Court accepts that its panoramic view of rights violations deprives it of the necessary focus required to determine individual rights violations.
Even so, the argument that the Court intervenes in matters of social policy is without foundation. The European Court accepts that States are solely responsible for deciding contentious issues. In the seminal case of Vo v France, the Court took account of differences at national level to decide that it is for member states to determine when the right to life begins, in cases of abortion. Equally, in the Pretty litigation, the Court ruled consistently with the (then) House of Lords, that the DPP should provide guidelines on prosecution in cases of assisted suicide.
When it comes to social policy, the European Court is not the quasi-political institution the Conservatives would have us believe. On the issue of prisoner's voting rights, the case has been shamefully mischaracterised. Article 3 of Protocol 1 guarantees the right to hold free elections that ensure 'the free expression of the opinion of the people in the choice of the legislature'. Whether prisoners have the right to vote is not a matter of social policy but of law.
The decision handed down by the court is, in principle, unobjectionable. The Court ruled that a blanket ban on voting for prisoners with custodial sentences was an infringement of their rights. But this was qualified by an acceptance that member states enjoy a 'margin of appreciation' and that action can take whatever form 'the government considers appropriate' provided that action is proportionate. What the judgment contemplates is that decisions, to deny prisoners the right to vote, be made on case-by-case basis. Not as nauseating as Cameron would make it sound.
In the process of misrepresenting the prisoner's voting rights debate those on the political right have started making dangerous noises. Philip Johnston suggests that the 'responsibility [of] compliance' be handed back to 'member states'. The suggestion is at first laughable. But if the argument is taken seriously, it opens the way for all out non-compliance. States regularly violate human rights and the Court plays a fundamental role in holding States to account. The embarrassment of failing to comply must itself keep governments in check. Indeed the view of academics is that the Convention, and the Court as its enforcer, radiates constant pressure for the maintenance of rights standards. Removing the watchdog removes the compulsion to comply.
Britain's record on immigration before the European Court is poor. Any planned reform would certainly prevent future embarrassment for the government before the Court. But the risk of severing ties is the violation of fundamental rights, by the State, with impunity.
The cabinet and the country need to be reminded of the valuable role played by the Court in establishing a European human rights consensus. In establishing consistency across Europe, the Court has substantiated the fundamental rights listed in the Convention that everyone deserves but that were otherwise too vague to be enforced. Far from having a corrosive effect, the European Court has enhanced the rights enjoyed by the British people.