Liberty and the Europe debate

Posted by Shami Chakrabarti on 25 October 2011

The House of Commons back-bench Europe debate demonstrates how divisive an issue our relationship with the European Union remains in British politics.

Europhiles point to 70 years of relative peace and prosperity on a continent previously responsible for two world wars, eurosceptics to the democratic deficit of a project once sold to ordinary people as a simple common market but now arguably closer to a political, social and economic federation. One group suspects raw xenophobia in its opponents; the other fears elitism and smug contempt.

It would be ridiculous English understatement to describe the crisis in the Eurozone as anything but gravely serious and its particular resolution will be significant for years to come, but the currency of humanity is also worth protecting and it is against this gold standard that those concerned with fundamental rights and freedoms must judge political institutions whether at local, national or international level.

The European Union has achieved many positives for the human rights of people in its territory. It is in large part responsible for our domestic equal treatment protections that outlaw discrimination on the grounds of race, gender, sexuality and other protected characteristics. More recently, it has embarked on a programme to strengthen the minimal procedural rights of suspected or accused individuals in member states. But like our own Government it has also on occasion fallen into the trap of pitting security against liberty and sacrificing the individual on the altar of administrative convenience.

The European Arrest Warrant is a case in point. Negotiated with the laudable ambition of speeding up extradition within a democratic family of nations, its architects are only now beginning to seek to harmonise some of the very disparate standards of police station and criminal fair trial protection that should have preceded any attempt to treat a continent as one legal jurisdiction for the purposes of transferring suspects from one place, system and language, without a case to answer being proved in a local court. So here legitimacy and fairness go hand in hand. Notionally at least we voted for, trust and believe in our own criminal law. Do we feel the same way about that of Greece or Poland? Would we really feel no greater anxiety about being sent for trial there than in another part of the UK? If the answer is "no" or "not sure", the warrant should be renegotiated in the medium term - as much by Lib Dems concerned with liberty as by Conservatives worried about sovereignty. In the short-term, the UK could look again at how we currently implement the warrant in this country to ensure that where alleged criminal activity has taken place in whole or in large part in the UK, a suspect is put on trial here instead of being shipped off abroad.

In short, our advice to those who favour close EU co-operation is to answer questions about who it is all for, not merely with economics, but with a human rights race to the top and not the bottom.

Which brings us to the European Convention on Human Rights – so often confused with the EU. Unlike the post-war economic co-operation project, this was much more led by Britain and about sharing and protecting fundamental non-negotiable civil and political rights with younger democracies. No torture, slavery or arbitrary detention, the protection of fair trials, personal privacy, freedom of speech, conscience and association and equal treatment under the law. These vital democratic ingredients were in large part drafted by British lawyers and are now found, not just in the ECHR, but in Constitutional Bills of Rights across the Commonwealth. It is heartening that, finally, negotiations to make the EU institutions themselves subject to the jurisdiction of the Court of Human Rights are under way.  

But despite Churchill's key political role in creating the Convention, Lord Kilmuir's in drafting it and Britain allowing its people to seek redress for violations in the Strasbourg court from 1966, there could be no adjudications on it in our own courts until 2000.

No doubt we were long-complacent about the need for human rights constraints on British governmental power (at least in our own back yard), and nervous about upsetting the principle of parliamentary sovereignty on which our unwritten constitution rests. However, the beauty of the Bill of Rights that is the Human Rights Act is threefold.

Firstly though judges may examine alleged breaches of our rights and freedoms more closely than ever before, where an Act of Parliament is engaged the final word on any proposed change in law remains with Parliament itself. Thus abuses of power by the executive (at local or national level) can be quashed by the courts but under the "declaration of incompatibility", Parliament is only ever politely asked to think again by the higher courts.

Secondly, the rights and freedoms in the Act attach to humanity not nationality. Like the best of our common law tradition, they protect everyone in the country and comprise values that are simultaneously British, European and universal in nature.

Finally and crucially in the current debate, the Human Rights Act repatriated judicial power to interpret human rights and apply them in British cases, from a court of international judges in Strasbourg to our own courts closer to home.     

Both the Lord Chief Justice and Attorney General are quite right to remind us that the Human Rights Act places a duty on British judges to "take account of" ECHR decisions, and not to be bound by them. Scrapping the Human Rights Act would transfer power and influence away from Britain and make Strasbourg our first instance Court of Human Rights. Surely a rather Eurosceptic own goal?