A legal assault on the power of the demos
The problem with the European Court of Human Rights is that it restricts our ability to hold the state to account.
For opponents of the Strasbourg-based European Court of Human Rights (ECHR), it seems that each month offers a welter of evidence for its abolition. The typical scenario involves someone bad – a killer or a terrorist perhaps – being exonerated either on the basis of the UK’s commitment to the European Convention on Human Rights or at the behest of its enforcer, the ECHR. And with each of these seeming injustices, the chorus seems to grow: stop meddling in our affairs.
This is a chorus that has been growing in high places. So in Britain in 2008 we had then justice secretary Jack Straw responding to the much-publicised cases of criminals avoiding deportation or punishment by calling the 1998 UK Human Rights Act – the act responsible for subordinating the British legal system to the convention on human rights – a ‘villain’s charter’. And just this week, Conservative MP Dominic Raab responded critically to the recent decisions not to deport an Iraqi hit-and-run killer and an Indian murderer on the basis that it violated Article 8 of the convention, their right to respect for family life. ‘We need to restore democratic control over our borders and our laws’, Raab urged: ‘That can be done without wholesale repeal or replacement of the Human Rights Act, which our [Lib-Dem] Coalition partners would not accept.’
Straw’s and Raab’s criticisms, though focused on the UK Human Rights Act, express what often seems to infuse criticism of the ECHR: the sense that an external authority inhibits the legislative and executive power of the nation state. Challenging state legislation and changing state policies, not to mention often letting dodgy foreign types literally get away with murder, the ECHR humiliates and emasculates the British state and, as with Straw and Raab, all who sail within her.
This at least is the liberal caricature of the ECHR’s opponents. But despite what many of those blindly besotted with transnational institutions believe, the argument against the ECHR does not automatically imply an unqualified, flag-waving love of the nation state. In other words, you don’t have to be a cheerleader for unfettered state power to object to the aloof operation of international law, not only applied but now often created by an unelected, unaccountable, often unknown coterie of judges over in Strasbourg. In fact, all you need to oppose the ECHR is a bit of democratic spirit. And that’s because the fundamental problem with the ECHR is that it not only erodes national sovereignty – it diminishes and redirects the ground of that sovereignty, that is, the democratic, self-governing impulse of the people. So while the ECHR might well override or overturn state policies we individually object to, by doing so from upon high it effectively inhibits the political ability to challenge – and change – the state from below.
And this is the problem. Effectively, the ECHR limits the political ability to hold the state to account. This is because it is not a coming together of members of civil society on the basis of a shared grievance or idea, to oppose the actions of the state. Rather, the opposition to state power now arrives in the technocratic form of a set of unelected, unaccountable lawyers. State power is fought with supra-state power. A democratic struggle with the state, shifted from the terrain of the civil society, has been transformed into a legalistic struggle with the state. Collective struggle is replaced by individual legal appeal. And because what ought to be a political struggle is transformed into a legal machination, democracy is stymied.
Take for example the 2001 decision of the ECHR to award £10,000 to the families of 10 IRA men shot dead in 1987 on the basis that their ‘right to life’ had been violated (a ruling which certainly reveals the proximity of legalese to callous euphemism). For supporters of the British state this clearly came as a blow. Ulster Unionist David Trimble, then Northern Ireland’s first minister, was predictably incredulous given that, as he saw it, the RUC had killed people intent on killing them: ‘There would be people who would call into question the competence and the judgment of the European court, but it is not the first time that this has happened.’
But, what is important to grasp, is that the ruling was no great blow for Irish republicanism either. It didn’t call into question the British state’s presence in Ireland and it didn’t inspire a popular enthusiasm for Irish freedom. Both of those things are political phenomena. They depend upon struggles within society, on people arguing and fighting within society, trying to convince other people of the rightness of a cause. In short, it depends upon forging collective solidarity, not pursuing individual legal appeals.
And this is precisely what the ECHR denies. This was probably not the intention behind its establishment, but it is the result. Increasingly people seek not to oppose the state politically by winning others over to an idea, whether that’s Irish freedom or open borders or freedom of expression. Instead, the political realm is bypassed, as individuals take their case to the higher authority of the ECHR. It is surely no coincidence that as the traditional forms of political opposition to the state have declined, along with the informal social unions upon which were based, the caseload for the ECHR has massively expanded. So while in 1999 it stood at 8,400 cases a year, 10 years later this had risen to 57,000. Such has been the influx of plaintiffs that a backlog of 120,000 cases had accrued by 2009.
So as we witness the ECHR’s repeated intervention in matters of the state it is not the frustration of state power we should be concerned about. Rather, what should worry us is the inhibition of our own political and democratic capacity to hold the state to account.
Tim Black is senior writer at spiked.