After questioning why Britain does not allow prisoners to vote, the European Convention on Human Rights is, once again, being vilified as undemocratic. But, like the Constitution and the Bill of Rights in America, it isn’t supposed to be democratic. In fact, it would defeat the point if it was.
Howls of outrage against the ECHR are common. Usually they happen when someone the howler doesn’t much like or approve of gets granted the same human rights as everyone else. A case in point would be the unsuccessful asylum applicant who committed a hit-and-run offence and was not deported from the country. That is not special treatment for the criminal. That is punishing him for the crime he committed the same way as they would punish anyone else. But there is popular sentiment against the ECHR, because cases like these get a lot of press, and they can indeed seem like frustrating stories. The verdicts seem to overlook common sense.
Well, I have news for you. They do overlook common sense. The law is not the place for common sense. In fact, I don’t want common sense within fifty square feet of the courts. Why? Because, I hate to break it to you, but there is actually no such thing as common sense. There are only collectively held assumptions. Sometimes they are right – in fact, usually they are right, or they wouldn’t become collectively held – but not always. The law cannot afford that margin of error.
Common sense is a very subjective concept. Melanie Phillips’s common sense, for example, says that an awareness of homosexuality being introduced into the classroom is will undermine traditional values like marriage. To me, it is common sense to make sure gay kids feel safe in the place they have to spend a pretty large portion of their time. To some people, it’s common sense that married people raise healthier, happier children than non-married people. To me, it is common sense that love, and being a good parent, is more important than marriage. You get the idea. But no matter: people who want common sense in the legal system still imagine everyone else shares the same common sense as they do. ‘There’s no common sense!’ they shout, if the judge disagrees with their interpretation of the case. Impossible, of course, that the judge simply applied his own common sense, and came to a different conclusion. But somehow, the ECHR gets the blame, and soaks up all the popular resentment whenever there is a verdict which can appear to go against ‘common sense.’ In fact, there is perceived to be so much popular sentiment against the ECHR that the Conservatives are planning to scrap it, and replace it with a ‘British Bill of Rights.’
What I want to know is this: which rights are they going to remove? Which rights on the list do they think I don’t deserve? It’s a serious question. They are either going to waste a fair bit of money, time, ink and energy redrafting a serious legal document just to give it a different title, or they are going to deliberately remove some of my rights.
So don’t be shy, Cameron. Which rights will you remove? I want them to list the Articles they will scrap. I hear, instead, a lot of talk a lot about the ‘rights of crime victims’ being restored, instead of a focus on the ‘rights of criminals.’ This is a complete logical fallacy. Every Article applies to everyone. No-one is giving criminals, or people accused of being criminals, any rights whatsoever that you, I, and the postman don’t have ourselves, too.
And that’s the reason, of course, that they don’t want to specify which Articles they will scrap. They want you to see certain rights being for one group of people, and other rights being for other groups of people, so that we all believe it will be someone else’s rights being taken away, not ours. If we were to think to ourselves, ‘Do I no longer want the right to be free from torture and inhumane treatment?’ or ‘Am I really happy to give up the right to freedom of expression?’ we might be less quick to cheer over the sound of them all being shredded.
There is a lot of talk, too, about this new Bill of Rights being drafted here, at home, with Britain’s best interests at heart, by our own politicians, in the name of democracy. But when the ECHR was first drafted, it wasn’t supposed to be democratic. It isn’t melodramatic (although it would make Godwin proud) to remember that, in the aftermath of Europe’s very recent, very ugly history, the aim of the convention wasn’t to ensure democracy. It was to make sure that whoever people elect in future, there are certain lines those elected leaders cannot cross; certain basic rights that people cannot have removed by the state, no matter why the state thinks they have a right to remove them. It was to make sure that there is a higher legal authority safeguarding those basic rights, which transcends the whims, tantrums, and paranoias of democracy.
Complaining that we never voted for the ECHR is like complaining that we never voted for Magna Carta, or that Americans didn’t vote for the Constitution. Our governments are bound by it just as Obama is bound by the Constitution, and having a set of self-evident truths, to borrow a nifty phrase, is the only way to make sure that our leaders are held accountable to the same laws that we, as citizens, all are.
To want all our rights decided by the elected government of the day is to assume that our government (and more importantly, the one after that, and the one after that, and the one after that…) will never need to be held to account in the way that not-so-distant European governments so badly needed to be in the last century.
And incidentally, whether our Parliament decides we want to allow prisoners the vote or not; whether it’s even within the ECHR’s remit to demand that we give it to them, there’s a very good reason why a system of safeguards designed when the ECHR was designed would have wanted that right enshrined. It’s not just so that politicians have to care about everybody, even those whom nobody else cares about – which it is surely part of their job to do. It isn’t just because people who’ve been driven to break the law might also have a vested interest in changing the law, either. It’s so that the state can’t pass and enforce laws based on who they do and don’t want deciding election results.