Photo credit: the Guardian
Numerous members of the new Government have stated that they want a greater role in the world for a post-Brexit UK, rather than a diminished one. If the Government is to be diplomatically resurgent, what sort of challenges might it wish to confront?
It could do far worse than face up to the creeping, unspoken, but calamitous refusal of governments all across Europe to implement judgments of the European Court of Human Rights (ECtHR). This problem is not only hugely important, but is also notable because the UK should take a large amount of responsibility for it happening in the first place.
The problem started around the turn of the century. Previously, between the Court’s creation in the 1950s and the mid-1990s, judgments were implemented by governments quickly and consistently. However, in the late 1990s, this began to change. By 1996, there were over 700 outstanding judgments against governments. By the end of the millennium, there were over 2,200, and by 2004, there were almost 4,000. Today, the total number is well over 10,000 outstanding judgments of the ECtHR, which national governments are simply ignoring (see here, page 56). That is a colossal figure, and amounts to nothing less than the breaking down of the rule of law.
It is not simply 10,000 cases of individual injustice. Those cases are crucial for identifying widespread problems in countries where the basic human rights of citizens are being violated time and time again. For example, this year I attended an International Day Against Homophobia (IDAHO) protest in Tbilisi, Georgia. Across the globe, individual IDAHO protests attract tens of thousands of activists in a single city, and are crucial for promoting LGBTI rights. In Georgia, there were only 8 brave activists in attendance. They were furtive and alone, because LGBTI activists in Georgia have feared for their physical safety ever since the IDAHO annual march was first attacked by hundreds of homophobes in 2012. The activists won an ECtHR case that highlighted the lack of state protection for their march, and the total absence of punishment for their vicious attackers. But by the time of this year’s protest, that judgment had still not been implemented. This meant that whilst 40,000 homophobic demonstrators assembled in the centre of the city, the unprotected LGBTI activists stayed at home, or met in tiny, unnoticed, ad-hoc groups in the suburbs. They were left fearful for their lives, and unable work to bring the change in society that they deserve.
A vast number of ECtHR judgments like this – the ones that are difficult, the ones that really matter – are being ignored in countries all across Europe. The machine for spreading human rights across Europe is breaking.
What is the cause of this? Observers point to a number of things: an increase in procedural rights violations being complained of; an increase in positive obligations established by the case law of the Court; and the admittance of numerous Eastern European states to the Court’s jurisdiction, with significant human rights challenges (e.g. see this report, pages 37-38).
Yet there is another important cause of this non-implementation. A number of established democracies have slowed down implementation of judgments, or refused to implement certain cases altogether. Among these bad apples, the UK has the most noticeably rotten core. In particular, the refusal to implement the Hirst judgment on prisoner voting has had a significant effect on the actions of other countries in the Court’s jurisdiction. The UK’s global reputation for human rights makes its refusal to implement ECtHR judgments the best excuse imaginable for other countries to do the same.
Time and time again, it has been observed that the UK’s attitude towards the ECtHR is undermining the implementation system, and/or the UK’s ability to improve human rights around the world. Among those who have stated that this is the case, are the Secretary General of the body that oversees the ECtHR (see the fourth paragraph of this speech by Thorbjørn Jagland); parliamentary members of the international body that helps oversee the implementation of ECtHR judgments (e.g. see speeches by Mr Biedron and Lord Anderson); the Council of Europe’s Commissioner for Human Rights; a UK cross-party Parliamentary committee assembled to address prisoner voting (see paras 4 to 6 of this report); another UK select committee, the Joint Committee on Human Rights (see para 3.23 of this report); an international think tank dedicated to spreading human rights (see para 1.1 of this); a UK NGO that works to spread human rights in Eastern Europe; leading practicing lawyers; leading legal academics; and experts from Chatham House.
Another useful way to look at the impact of the UK’s policy, is through statistics:
‘Leading’ judgments of the ECtHR are those which identify a structural problem – a general issue in a country’s human rights protections, which leads to repeated violations. In order to be implemented, leading judgments require government action beyond the individual case. The graph shows that the number of leading judgments that went unimplemented was rising before Hirst. But it skyrocketed after the UK refused to implement that judgment within a reasonable time (which may be regarded as 2 years, looking at reports by the Council of Europe – e.g. as indicated on pages 74 and 75 of the most recent implementation report).
The numbers show correlation, without necessarily proving causation. It would probably be misleading to claim that the UK’s non-implementation of Hirst was the sole cause of the spike in the graph. Nevertheless, combined with the large amount of expert evidence that the UK’s position is causing huge damage, the graph is very worrying. It is very hard to deny the link between the UK’s non-implementation of Hirst, and a growing refusal by governments across the continent to address hundreds of crucial, systematic human rights abuses. It is certainly not the only cause of these refusals. But it is nevertheless a very real one – and a very powerful one. This is something that has received almost no comment in the UK press, but about which we should be profoundly ashamed.
The sad thing is, it need not have been this way. Prior to Hirst, the UK’s record on human rights and implementation of ECtHR judgments was almost unparalleled in other large European democracies. Researchers have also suggested that other countries should be copying the structure of the UK’s implementation system (see pages 221 and 222 of this study). This is because the mechanisms in place for overseeing the implementation of judgments, by specialist Parliamentary committee, give the UK an exemplary record on speedy, effective implementation (with the notable exceptions of Hirst and some others).
In summary: there is a huge problem with the otherwise admirable convention system; the UK has done a great deal to exacerbate that problem; and the UK is in an excellent position to take a lead on addressing it.
Implementing Hirst would of course be an ideal first step. However, given that the new Prime Minister declared a few months ago that she would like to leave the ECtHR’s jurisdiction, it does not seem likely that she is in the mood to implement its most unpopular judgment.
Nevertheless, the UK could and should make every effort possible to improve the implementation system, even if it does not implement Hirst. It could do this through diplomatic efforts, but also through additional funding for the institutions and NGOs that are crucial for Europe-wide implementation.
Boris Johnson has declared himself to be a great supporter of the Convention system. As the UK’s new Foreign Secretary, he could do a great deal to make that vocal support a pragmatic reality. There has been a lot of talk recently about certain individuals starting a Brexit fire, and then deciding not to be involved in putting it out. Whether or not Brexit is a Johnson-caused fire, we can be confident that the non-implementation of ECtHR judgments is a raging inferno – and that the UK has been stoking that fire for many, many years. Rather than looking the other way, we should be the first to try to douse the flames.
George Stafford is a lawyer currently working with the Georgian Young Lawyers’ Association in Tbilisi (george.philip.stafford@gmail.com; @georgePstafford)
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