An ever-expanding list of controversial rulings issued by the European Court of Human Rights (ECHR) are fueling accusations that unelected judges at the pan-European court are usurping the judicial sovereignty of individual European nation states.
The Strasbourg-based ECHR enforces the European Convention on Human Rights and its jurisdiction is compulsory and binding for all 47 member states of the Council of Europe.
 The European Court of Human Rights in Strasbourg, France. (Image source: CherryX/WikiMedia Commons) |
The latest imbroglio stems from the ECHR's concerted effort to prohibit British courts from sentencing violent criminals to life terms in prison without parole.
According to English law, all convicted murderers must be sentenced to life imprisonment (this requirement has been enshrined in English law ever since the death penalty was abolished in 1965). Nevertheless, in most cases, prisoners are eligible for parole after a fixed minimum period set by the judge.
However, in cases involving exceptionally violent criminals, judges may impose so-called whole-life sentences, meaning the prisoner will never be eligible for release. There are currently 49 criminals serving whole-life terms in the prison system of England and Wales.
But the ECHR—in a landmark case called Vinter vs. the United Kingdom—ruled in July 2013 that life sentences without any prospect of release or review amount to inhuman or degrading treatment or punishment, and thus are a violation of the European Convention on Human Rights.
The ECHR ordered the British government—which cannot appeal the decision—to inform the Council of Europe (the enforcer of ECHR judgments) within six months as to how it would apply the ruling to the whole-life sentences given to three convicted killers—Jeremy Bamber, Douglas Vinter and Peter Moore—whose human rights have allegedly been breached.
In a formal note sent to the Council of Europe on January 8, 2014, British Justice Minister Chris Grayling was defiant, stating that inmates sentenced to whole-life terms in Britain would not obtain the right to a review, according to The Guardian. Grayling said the British Supreme Court should be the final arbiter of British law, not the ECHR.
Only a few days earlier, British Prime Minister David Cameron had indicated he was considering changes to sentencing rules that would replace whole-life jail terms with U.S. styles of sentences, if necessary lasting hundreds of years for multiple counts of murder, for instance, in a bid both to satisfy, and at the same time to sidestep, the ECHR, according to The Telegraph. Long sentences are sometimes imposed in the United States as an alternative to the death penalty.
"What I believe is very clear," Cameron said. "There are some people who commit such dreadful crimes that they should be sentenced to prison and life should mean life, and whatever the European Court has said we must put in place arrangements to make sure that should continue."
But Cameron's legal advisors said that while lengthy sentences had the appearance of being tough, they would still have to be accompanied by an automatic review, potentially allowing murderers who would otherwise have stayed in jail to be released. Thus Britain would "surrender" to the ECHR because "life would no longer necessarily mean life," according to conservative politicians interviewed by The Daily Mail.
Curbing the influence of the ECHR and other pan-European institutions is sure to become a key element of the Conservative Party's electoral platform ahead of general elections set for May 2015. Many Britons are opposed to the continued erosion of British national sovereignty by non-elected bureaucrats in Brussels.
The dispute over "human rights" for violent criminals is part of a much larger EU effort to create what Grayling describes as a "European justice system," one that would subordinate the legal systems of European nation states to the whims of European bureaucrats.
For example, the new president of the ECHR, Judge Dean Spielmann, threatened in June 2013 that if Britain did not adhere to European human rights laws, it could face being ejected from the European Union altogether.
In an interview with BBC Radio 4's Today program on December 28 (listen to the five-minute interview here), Lord Judge—he was the Chief Justice of England and Wales from 2008 to 2013—warned that allowing the ECHR to set laws on social matters could pose a threat to parliamentary sovereignty.
Lord Judge told the BBC that Judge Spielmann was claiming too much power for a body of unelected judges whose rulings could not be challenged. "This is a court which is not answerable to anybody," he said.
Lord Judge said the ECHR was overstepping its authority in attempting to dictate rather than to influence the social legislation of EU member states. He urged the British government to rally support across Europe to rein in the court.
"His [Judge Spielmann's] view means that the court in Europe is entitled to tell every country in Europe how it should organize itself," he said. "He refers to it [the European Convention on Human Rights] as a living instrument. Of course the Convention isn't a dead instrument, but it means that legislation can be made by judges on all sorts of societal issues—binding legislation—and if that's the position there is a very serious problem with sovereignty."
"It's not a UK problem, the sovereignty issue affects every single country in Europe," Lord Judge added. "It is time for us to recognize that it is a very important time. My own view is: stop here."
"The issue that is in play here is not the Convention, it is sovereignty … The most fundamental principle of our unwritten constitution is parliamentary sovereignty. Our elected representatives have ultimate sovereignty not only over our own unelected judges but in my view over the unelected judges of any other jurisdiction, including Europe, unless we choose to give them sovereignty."
Lord Judge has previously suggested that the Human Rights Act of 1988—which codifies the protections in the European Convention on Human Rights into British law—should be amended to make clear that British courts are not inferior to European judges in Strasbourg.
In a wide-ranging speech to the Constitution Unit at University College London on December 4, Lord Judge said the ECHR "is not superior to our supreme court" in London, and that parliamentary sovereignty should not be exported to "a foreign court."
"My profound concern about the long-term impact of these issues on our constitutional affairs is the democratic deficit ... in our constitutional arrangements parliament is sovereign."
"It would make sense for the [Human Rights Act] to be amended, to express that the obligation to take account of the decisions of the Strasbourg court did not mean that our supreme court was required to follow or apply those decisions, and that in this jurisdiction the supreme court is, at the very least, a court of equal standing with the Strasbourg court."
"Are we … prepared to contemplate the gradual emergence of a court with the equivalent jurisdiction throughout Europe of that enjoyed by the Supreme Court in the United States of America?"
"My personal belief is that sovereignty on these issues should not be exported, and we should beware of the danger of even an indirect importation of the slightest obligation on parliament to comply with the orders and directions of any court, let alone a foreign court."
One week earlier, Lord Justice Laws—the longest-serving court of appeals judge in the UK— called on British courts to stop deferring to Strasbourg on every issue. In his Hamlyn Lecture at Inner Temple Hall in central London on November 27, Laws said: "I have, in common with others, come to think that this approach [of treating Strasbourg decisions as authoritative] represents an important wrong turning in our law."
Laws said the UK Supreme Court has accorded "overriding force to the notion that only Strasbourg's rulings on the convention are 'definitive' or 'authoritative.' Why should this be so?"
The week before that, Supreme Court Justice Lord Sumption criticized the ECHR for exceeding its legitimate powers and thereby undermining the democratic process. In a speech entitled "The Limits of Law," delivered at the 27th Sultan Azlan Shah Lecture in Kuala Lumpur, Malaysia, on November 20, Sumption said the Strasbourg court "has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the [European Convention on Human Rights] as what it calls a 'living instrument.'"
Sumption highlighted one example of the ECHR's "creative" role in reinterpreting the Convention "so as to reflect its own view of what rights are required in a modern democracy." This approach has "transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order." It has "involved the recognition of a large number of new rights which are not expressly to be found" in the language of the treaty.
"The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications."
Sumption added:
"The process by which democracies decline is ... subtle ... What happens is that they are slowly drained of what makes them democratic, by a gradual process of internal decay and mounting indifference, until one suddenly notices that they have become something different, like the republican constitutions of Athens or Rome or the Italian city-states of the Renaissance."
These concerns were echoed by the Deputy President of the Supreme Court of the United Kingdom, Lady Hale. In her Warwick Law Lecture delivered on November 28, she expressed concern that "the current problem facing both Strasbourg and the member states [of the EU] is whether there are any limits to how far the [European Convention on Human Rights] can be developed."
Meanwhile, the ECHR is pressing Britain to offer prisoners the right to vote. In a legal battle dating back to 2004 (Hirst vs. the United Kingdom and more recently Scoppola vs. Italy), the Strasbourg court has repeatedly ruled that a blanket ban on prisoner voting is incompatible with European law.
David Cameron said in November 2010 that the prospect of giving murderers the right to vote makes him feel "physically ill," but that he has no choice but to comply with the ECHR's ruling that the UK's 140-year-old blanket ban on letting sentenced prisoners vote is illegal.
Separately, the European Commission—the administrative arm of the European Union—published a series of five documents in October 2013 that seek to impose yet another set of human rights in Britain.
The move to enforce the EU Charter of Fundamental Rights—which brings together in a single document all of the 54 fundamental rights protected in the EU—comes despite the fact that the Labour Government opted out of the Charter when it signed the Lisbon Treaty (aka the European Constitution) in 2007.
EU officials have discussed "enhancing the scope" of the Charter, which includes a number of rights which are not listed in other declarations such as the "right to marry and found a family," as well as guarantees of "housing assistance," "fair working conditions," and the right to "collective bargaining."
In an interview with The Times, Justice Minister Grayling said: "This country never wanted a Charter of Fundamental Rights and the idea we would sign up to changes that meant it took over our domestic laws is absurd. The European Commission should stop trying to create a European justice system and should let member states get on with solving the real challenges we all face."
Adding to the confusion, a British high court judge recently said he believed that even though Britain had signed a special protocol as part of the Lisbon Treaty which was to ensure that the EU Charter of Rights would not be enforceable in Britain, the EU law had unintentionally been incorporated into British law anyway due to years of European interference in the lawmaking functions of the British Parliament.
"It would seem that the much wider charter of rights is now part of our domestic law," Justice Nicholas Mostyn ruled on November 7 in (AB vs. Home Secretary). "Moreover, that much wider charter of rights would remain part of our domestic law even if the Human Rights Act were repealed."
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute. He is also Senior Fellow for European Politics at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group. Follow him on Facebook and Twitter.
Bart Benschop