Claire Harris, Senior Director of FTI Consulting Brussels, writes about the future Tory government and if we will see the UK exit the Council of Europe.
For a number of years, several voices in the UK’s Conservative party (Tories) have been raised against the judicial supremacy of the European Court of Human Rights (ECHR), and David Cameron’s reshuffle earlier in July which removed two of the most liberal members of the cabinet – Europhile Ken Clarke, Minister without portfolio, and Dominic Grieve QC, the attorney general – shows that eurosceptics are winning, at least on human rights policy.
The European Convention on Human Rights was adopted in 1950 by the newly-established Council of Europe. It’s a statement of basic human rights, born out of a desire to ensure that the atrocities of the Holocaust and the second world warwould be a thing of the past. Fundamental rights, such as the right to life and the prohibition of torture are included in the convention.
The Council of Europe’s judicial arm, the European Court of Human Rights (ECHR), rules on complaints of abuse of the Convention. It is currently dealing with just under 100,000 cases, more than half of which concern abuses in four countries: Russia, Ukraine, Turkey and Italy. Critics of the Court say that in developing legally-binding precedents it has moved away from its founding principles, and has become over-intrusive in areas that should be the preserve of domestic courts or parliaments. A recent example of this is the Court’s insistence that UK prisoners have the right to vote.
Some critics of the EU (including some Eurosceptics in the UK) mistakenly think that the Council, Convention and ECHR are bodies of the EU. You don’t have to be a Eurosceptic to confuse the Council of Europe and the European Council – actually, it’s probably only policy wonks who can instantly distinguish them. It doesn’t help that the Council of Europe and the EU share the same flag and anthem. And to confuse matters further, while they are separate, the EU requires all acceding members also to be signatories of the European Convention.
So if the United Kingdom were to withdraw from the Council of Europe, as the UK’s Home Secretary Theresa May has been advocating, it would pose some serious questions about the country’s relationship within the EU. Maybe some of the more ardent Eurosceptics are advocating leaving the Council of Europe exactly for that reason. Britain could withdraw unilaterally from the Council of Europe whereas, in contrast, it would have to negotiate a tortuous exit from the EU, and doing the former could begin to lay the foundations for an eventual Brexit.
In the run up to the UK 2015 general elections, attacking the ECHR could reap political dividends on the right for the Tories. Ironic, given that one of the first to call for the Council was Sir Winston Churchill, and the Council was established by the Treaty of London. Leaving the Council of Europe would cast a shadow over the UK’s international credentials and upset the international legal order. One of the few European states that is not a member of the Council of Europe, Belarus, has been described as “Europe’s last dictatorship”. Does the UK really want to be counted with Belarus? Perhaps better to be in the club rather than out, on that basis.