Foreign courts

Sir Nicolas Bratza QC (picture Council of Europe)

Amid all the fuss about the constitutional and legal implications of David Cameron’s call for a new Bill of Rights, the most interesting point is his description of the European Convention and Court as “foreign”. That’s a statement worth looking at more closely.

The Convention first. It was conceived in the aftermath of the Second World War as a statement of civilised values and how they should be applied in practice. The revelations of the Holocaust and the Nuremberg trials made this visibly necessary. So is the notion of civilisation foreign?

The principal authors of the Convention were themselves British, and the principles it embodies are entirely familiar to the British. I am pushed to think that the right to life should apply abroad but not in Britain.

And what of the Court? It meets in Strasbourg, which is undeniably a foreign city. But who are its members? Judges from the different European countries that are signatories to the Convention, including our own. Some of them will be foreign, but not all. For example, president of Section IV of the Court is Sir Nicolas Bratza QC, a Bencher of Lincoln’s Inn and a graduate of Brasenose College, Oxford. That’s as British an education as one can get, as I am sure David Cameron will be the first to agree.

“Foreign” implies “not British”, that is having a different nationality. But the Court has no nationality at all: it is European, not foreign. It may not be a British court but it is not a French or a German court either.

Any intelligent approach to the notion of “European” understands that it is different to “British” but not an alternative to it. In fact, it includes all the different nationalities that make up Europe. One might even go further and say that to be British is necessarily to be European, making the dismissal of the European Court of Human Rights as foreign even less appropriate than before. To evoke “foreign” as a description of the Court is factually wrong; to use it as a criticism is politically scandalous.

Returning to the Convention, to declare that the British deserve different rights to the rest of the world sets a dangerous precedent. I can hear now Robert Mugabe or the rulers of Sudan or Burma dismissing objections to their human rights violations on the same grounds. Does David Cameron really mean to give such dictators a free hand?

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