Making a case for Human Rights Law: a response to Conor Casey’s “Disagreeing over Human Rights Law”

Conor Casey’s article makes an important point that supporters of the ECHR need to bear in mind when trying to persuade others that the UK should remain party to it.

Conor Casey is a well-known critic of the European Court of Human Rights (the Strasbourg court) and, it is probably fair to say, has a sceptical position towards the UK’s continuing membership of the European Convention of Human Rights (ECHR)[1]. He comes from a legal perspective – common good constitutionalism – with which I have serious differences, and adopts a “natural law” framing that I would not share[2]. Those facts may make many immediately dismiss his recent article on the debate about UK membership of the ECHR. But, despite that contestable perspective, he makes a serious point that should be taken seriously by those of us who want to persuade our fellow citizens that we should remain in the Council of Europe, and in the ECHR.

His essential point, putting it my way, is that anyone who believes in human rights, or even in the basic principle of there being a charter of human rights with legal force, may nonetheless not wish to be subject to a particular charter, or to a particular court‘s interpretation of that charter: and the fact that they take that view does not at all mean that they are hostile to the idea of a human rights charter with legal force, let alone to the idea of human rights as a core element of any legal or moral system.

That point must be right in principle. For example, many, if not most, supporters of the ECHR would not want to be subject to the US Bill of Rights (think about the Second Amendment) and would certainly not want to be subject to the US Supreme Court’s idiosyncratic and politicised interpretation of those rights (think of the catastrophically bad decision in Citizens United, that has effectively precluded any serious attempt in the US to restrain the power of the mega-rich to buy their way to political dominance by spending unlimited amounts on their favourite campaigns and candidates). Not wanting to have anything to do with that particular charter of rights or that particular court does not make anybody an opponent of human rights.

It is therefore no good to dismiss anybody who objects to the ECHR, or (more likely given that the rights set out in the text of the ECHR are generally fairly uncontroversial, even minimalist) anyone who objects to the Strasbourg courts case-law interpreting the ECHR, as necessarily opposed to human rights. No doubt there are some on that side of the argument who are not committed to human rights at all. There are certainly some who object to any kind of human rights charter with legal force. But there are others who would want a domestic bill of rights to replace the ECHR if we were to leave, or are in any event committed to human rights ideals as part of the framework of our legal system[3].

One very good reason for being careful to note those differences on the “leave” side is that it will be part of the task of any “remain” campaign to hammer away at them, and not to allow the leave campaign to repeat its trick in the Brexit referendum of carefully avoiding any discussion of what the alternative being put forward actually is[4]. But – more relevant to my point – the other very good reason for noting those differences is that as a matter of fact it is just not true that those who want the UK to leave the ECHR are necessarily opposed to human rights – and our fellow citizens are bright enough to notice that, and to be unpersuaded by the claim that to be against the ECHR or the case-law of the Strasbourg Court’s case-law is to be against human rights.

Rather, any persuasive argument for remaining in the ECHR has to do one of two things – and probably a mixture of both.

One is to positively defend the Strasbourg court’s case law as being a broadly acceptable framework of human rights adjudication (“broadly acceptable” being fine, as no court could ever be expected to be right from everyone’s perspective all the time[5]). That means squarely tackling hot topics like the court’s case law on the application of Article 3 (torture) and Article 8 (family life) to immigration cases: a task that involves, in my view, a combination of knocking down the persistent gross exaggeration of the extent to which that case-law actually prevents deportation of foreign criminals or those with no right to be here[6], taking political steps to address such concerns to the extent that they have force through the Council of Europe’s mechanisms, and defending the general principles that even bad people should not be sent off to be tortured or killed and that gross interference with the lives of other family members, particularly children, is a factor that should be taken into account in deportation cases, even if in many of those cases the public interest is going to be in favour of deportation.

The other is to point out that even if you think that the Strasbourg’s case-law is unsatisfactory, that consideration has to be balanced against the enormous disruption that leaving the ECHR would cause to the UK’s crucial security and economic relationships with our neighbours, both across the Channel and across the Irish Sea (a point that Casey hints at when he accepts that leaving would be “much costlier and more controversial than the UK’s entry into the ECHR in 1950”). That task is probably assisted by the fact those who will be loud in claiming that such arguments are nothing more than “Project Fear” are precisely the same voices who claimed that leaving the EU would be easy, cause no disruption to our economic and security relationships, and entail no issues for Northern Ireland: a claim that almost everyone now sees to have been wholly false.

Both of those approaches are, I think, both powerful and capable of being turned into persuasive argument that wins over a majority of our fellow-citizens. What is less powerful – save as an aspect of highlighting the cracks within the leave camp – is to accuse all leavers of being opposed to human rights. A good rule of advocacy is not to use a weak argument if your strong arguments are good enough. I suspect it is good politics, too.

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[1] I will ignore the formal position that it is membership of the Council of Europe (of which the ECHR forms part) that is actually in issue.

[2] One indicator of that – and an indicator of why I do not share that perspective – is the assumption Casey makes around half-way through the article that any human rights law, or interpretation of human rights law, that created rights to abortion, surrogacy, or assisted dying would be contrary to natural law and the common good: an assumption that reflects the mysterious – one is tempted to say miraculous – way in which, in this school of constitutional thought, “justice” and “the common good” always seem to mirror Roman Catholic teaching, even on highly contestable matters on which many others, including many other Christians, profoundly disagree.

[3] In a very good article, Roland Smith notes and discusses those differences. He – I think rightly – says that if leave won, the (real) opponents of human rights would be more likely to get their way than the “liberal leave” camp (in the same way as “liberal leavers” were either overwhelmed or self-radicalised after the Brexit referendum): but that does not affect the fact that it does not work politically to paint supporters of leave as being by definition opponents of human rights.

[4]A trick that may well be harder for leave to repeat if, as would be the likely background to any referendum on the ECHR, leave was being advocated by a Reform or Conservative government, which could not get away with a “that’s something for the government to sort out later” response to such difficult questions.

[5] For example, I share the view of the dissenting judge in the Strasbourg court’s judgment in Klimaseniorinnen that the court has overreached in extending ECHR rights into the arena of the adequacy of measures to tackle global heating: but I suspect that that judgment will in the end not bear much fruit in terms of actual constraint on states’ decisions in the area.

[6] See, for an excellent example of how to carry out that demolition job, this UK in a Changing Europe explainer.