The European Court is powerless to stop Russia

5 July 2022

3:47 PM

5 July 2022

3:47 PM

Last Thursday saw a wry twist to the Ukraine war. The European Court of Human Rights solemnly intoned that Russia should stop the execution of two Englishmen condemned to death in the Donetsk People’s Republic for fighting for Ukraine. It knew perfectly well it was screaming into the void. Russia, though technically in the ECHR till September, had said it would ignore any of the court’s orders; and there is no doubt whatsoever that the People’s Republic will do exactly the same.

This is not the first time the court has raised eyebrows by issuing peremptory declarations of this kind. Just under three weeks ago, a plane was about to take off carrying asylum seekers to Rwanda. The English courts had refused to grant any injunction. The Strasbourg court – or rather a single unnamed duty judge attached to it – thought differently. At the last minute the court said it would be wrong for the government to halt the removal of one of the men, until the human rights or wrongs of the case were sorted out. As a result the flight was scrapped.

If you find something disconcerting in the European Court’s practice of ordering governments about at short notice, you are right. There are several reasons why it should worry us.

For one thing, it hardly enhances the Court’s reputation. Issuing idle commands everyone knows will be summarily binned by the recipients, as with the brutum fulmen addressed to Russia, is hardly the way to gain either gravitas or respect. So too with the Rwanda debacle: whatever the theoretical legal position, many will be understandably annoyed at what was in essence the use of the Human Rights Court to overrule national judges and domestic litigation.

Secondly, all this seriously upsets a once carefully moderated balance between national judges and lawmakers on one side, ultimately responsible to the people on whose behalf they act, and on the other human rights judges admitting allegiance only to abstract principles contained in what is in effect a canonical document.

States put up with human rights limitations on elected governments essentially because the powers of a court like that in Strasbourg should be limited to a power to decide, ex post facto and following a full argument, that a state has acted in a way that no civilised state should. But interim measures of the kind involved here go way further. Strasbourg issues them under a special procedural rule of the court, Rule 39, without a full hearing. Now, it may on occasion be acceptable for national courts to issue orders before the full facts are known, in order to hold the ring between parties until matters are sorted out. But it is not the job of transnational or human rights courts to do any such thing: and if they do they will rightly be seen as muscling in on the functions of national judges.

Strasbourg’s right to give interim orders and say that states obey them appears nowhere in the ECHR, and was hardly envisaged when we signed it in 1950. Rule 39 merely allows Strasbourg to recommend measures, which is very different. But that did not stop the court in 2003 and 2005 taking the radical step of saying that as far as it was concerned the Convention required states to jump to it and obey its recommendations as well as its judgments, on the remarkably specious ground that the former obligation was implied by the duty placed on states under the Convention not to impede the right of individuals to petition the Court.

This exercise was little more than a naked political power grab by the Court. But it says a good deal about how that organisation, and the human rights freemasonry that follows its every word, thinks. From the time the ECHR was signed in 1950, views about it were split. Officially it started as a backstop to prevent states in Europe falling back into fascism: something whose effect as a limitation on democratic decision-making was likely to be limited to fairly extreme cases. But some even then saw it differently. Sir Humphrey Waldock, for example, an English law professor involved in the project from the 1950s, saw in it a potential constitutional ‘European Bill of Rights.’

From the 1990s the latter view prevailed, in spades. An activist Strasbourg court, increasingly sceptical of elected politicians and democracy’s ability to come up with the right answers, consistently expanded the ECHR’s ambit, acting more and more as if it were a kind of surrogate constitutional tribunal armed with the overriding power to protect what it saw as European social values. It is in the light of this expansive view by the court of its own importance and position that we have to see its arrogation to itself of a power found in many national constitutional courts: namely, to micromanage human rights litigation and nip potential human rights violations in the bud.

This does not mean that this is a good thing, or that states should necessarily accept it. On the contrary: for the reasons already given, it is highly problematic. There is moreover a very respectable argument that in purportedly expanding its own jurisdiction to give binding judgments the Strasbourg court is guilty of logical boot-strapping as well as political mission creep.

It is very encouraging that the UK has now decided to call Strasbourg’s bluff. Clause 24 of Dominic Raab’s Bill of Rights introduced ten days ago requires our courts to disregard interim orders issued by Strasbourg, and licenses our government to ignore them. Despite the howls of the human rights establishment and inevitable attempts to wreck it in the House of Lords, this is a measure that deserves to succeed. Even if we do not get out of the ECHR entirely (which in my view we should), we still need to return human rights to their proper, subordinate, place in our constitutional arrangements. This is a welcome step in that direction.

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