3 March 2013

Theresa May's human rights trolling...

As some of you may know, I'm completing my doctorate on the European Court of Human Rights. I'm particularly interested in its unsuccessful cases, how the Court's work has evolved in practice the last two decades, and the arguments used by the diplomats, politicians and NGOs who have contemplated institutional reform since the 1980s. 

It's undeniably a tribunal whose scope and character has dramatically altered since it sprung into being in 1959. In 1959, the Council of Europe had thirteen members. During the 1990s, the number of states ratifying the Convention increased exponentially, vaulting from 23 states in 1990 to 41 by the year 2000. Today, 47 states have bound themselves over to protect the fundamental rights set forth in the Convention, Montenegro the most recent, in 2006.  

The Convention's expansion across Europe has precipitated a startling increase in the number of decisions which the Court is called upon to make. Earlier last week, I pinned down this rather startling statistic. Of all of the decisions made by the Court since 1985, 95% were adopted between 1998 and 2012. 20% of all of the Court's judgments and decisions between 1985 and 2012 were adopted last year.  Almost all applications are unsuccessful, rejected in a terse, unreasoned decision-letter. Judicial involvement in this "sifting" process is minimised.

Examining the bureaucratic way in which the institution actually functions has been challenging experience, intellectually and politically. I've never been quite so committed to the concept of human rights as many of my legal compatriots. My skepticism breaks down along a few lines, philosophical, political, legal. Philosophically, I don't hold with natural rights. I don't think they're rationally-derivable through some Kantian moral alchemy. Attempts to prove that contemporary human rights claims have their intellectual history in antiquity or later are generally anachronistic, implausible and self-serving. I'm not at all convinced that morality and ethics are best framed in terms of universally-framed rights and duties at all.  To treat human rights claims as the Good, the Just and the Beautiful, and to gloss over the extent to which framing politics in terms of human rights, risks neglecting the extent to which human rights smuggle with them a good deal of potentially troubling intellectual freight. 

Politically, many folk take it as axiomatic that human rights inevitably and unerringly serve useful ends, and the beneficiaries of these political arguments are the poor, the marginalised, the oppressed and dispossessed. I'm not so sure. For one thing, I'm uncomfortable with the idea of monetising the suffering of the world to make plum, well-paid, often untaxed jobs in national and international bureaucracies for middle class employees. The evidence from Europe shows you that many of those whose cases are now prospering in Strasbourg have the benefit of legal advice, while those without tend to be unsuccessful. Like it or not, resort to forms of legality tend to be indirectly discriminatory against those without the resources to access professional legal knowledge. Looking back at past political struggles, it is not exactly obvious that we ought to expect lawyers and judges, intellectually comfortable to state power, to be supportive of the more left-inclined radical end of the political spectrum. To put it mildly.

In the Scottish context, we can see evidence that large corporate interests, such as insurers and tobacco-hawkers have been able to use the European Convention's protection of their property rights to waylay legislation in the courts.  Both litigious adventures were unsuccessful, but it must at least look a little troubling that the instrument of human rights not only empowers individual wealthy litigants, but empowers conglomerations to reargue their parliamentary defeats before judges, and to employ human rights law to seek to evade reasonable regulations.  In general, I'm more skeptical than many about the utility of law and litigation to drive meaningful social change.

I'm also uncomfortable with the idea of "human rights education", as if the political agenda of seeing contemporary social problems in terms of rights was self-evident. Not a particular philosophical frame, or a rebuttable normative proposition, contending in the ruck of ideas for purchase, but knowledge which a benevolent caste of lawyer-priests cascade down to the credulous, in lectures and jurisprudence. None of which is to say that human rights law and policy hasn't made substantial contributions in some areas of our public life and politics, but it combines to a more agnostic stance than many of my political fellow travellers about the self-evident value of framing problems in terms of human rights and the judicial and bureaucratic institutions these concepts support. 

Bearing all this in mind, this morning's Daily Mail front page makes for discombobulating reading. Our Home Secretary, Theresa May, has gone human rights trolling, arguing that the Tory manifesto going into the next general election should include an explicit commitment to pulling out of the European Court's jurisdiction.  As the saying classically has it, the enemy of my enemy is my friend, and I'm certainly no political chum to the Home Secretary. More left-leaning folk, hearing the Conservative Party's John Bullroarers will feel an instant protectiveness towards the institution which they denigrate. I share that feeling, and have launched my share of jeremiads against the Tory and tabloid outright lies, distortions and victim-fantasies about the European Court. 

In defending it against the predations of Grayling and May, however, I would invite folk on the political left to pause, and reflect a wee bit more about what sort of faith we should really invest in an institution which tells 97% of its applicants to buzz off, expressing as much feeling concern for their complaints as the most heartless Atos disability assessor.  An institution which is primarily accessible to rich applicants, and in dealing with its overtaxed docket, has increasingly resorted to reforms whose effective purpose is to make it harder for the poor and the legally unrepresented to have their cases taken up in Strasbourg. Back in January, I had a piece in the Scotsman on precisely this point, and the contemptible underside of Grayling and Cameron's recent rhetoric on Court reform.

The European Court has its undoubted achievements and contributions to British public life and law. We should not, however, allow the overheated rhetoric of our opponents to occlude the fact that for most applicants, Strasbourg is not a beacon of light for the suffering people of Europe, but is a guttering candle, overwhelmed by its case-load, buffeted by politics, which can do little to alleviate the plights of most folk which petition its attention. A frail little light always at risk of extinction. For all of my scepticism about human rights, my philosophical agnosticism, I can't see that May's Eurosceptic magic fantasy solution helps anyone.

The proverb has the right of it. It's better to light a candle, than curse the darkness.


  1. Theresa May seems to have been fully assimilated by the Ministry of Terror then.

  2. Now that has a nice ring to it, Richard Thomas. It is either that or a Comité du Salut Public...