OPINION: Do islanders need protection from their own government?

Deputy Peter Roffey considers what impact withdrawing from the European Convention on Human Rights could have on Guernsey

FOR more than four decades I’ve struggled to convince some people that the European Convention on Human Rights has nothing whatsoever to do with the European Union. Zero, Zilch. No connection at all. Many of the signatories are not EU members, never have been, and in some cases have no desire to be.

Why then does it have the word ‘European’ in it, ask the sceptics? Well, because Europe is a continent. It is a geographical region, far bigger than just the EU, lying roughly west of Asia and north of Africa. Europe is not a political entity and it’s really time we stopped the lazy shorthand of using the word Europe when we mean the EU.

I blame our friends on the other side of the Atlantic for this pernicious trend. For ages they have simply called the United States of America ‘America’, as if that country was also a continent. It is not. Mexicans are Americans, as are Canadians. They just aren’t from the USA.

But enough of my pedantry. I accept that when it comes to the USA. I have lost the battle. Indeed I fess up to using the term America myself.

So back to the far more important issue of the European Convention on Human Rights. If it is not a creature of the EU (and, believe me, it really isn’t!), then how did it come about?

It is the brainchild of a completely different organisation called the Council of Europe. In the late 40s the idea of setting out a basic charter of individual rights, largely to protect citizens from their own governments, gained rapid currency.

The project was obviously a reaction both to the events which had led up to the Second World War and to what had happened during it.

It was driven by several political titans of the day, with Winston Churchill taking a leading role. Britain’s involvement went well beyond that. While the drafting was a collaborative effort it was coordinated by the British MP and lawyer, Sir David Maxwell-Fyfe.

These days all Council of Europe members have to be signatories to the convention. So, presumably, if the UK does decide to withdraw from the ECHR, it will have to leave the Council too. That prospect is the reason for this column.

What would withdrawing from the convention mean – both for the UK and for Guernsey?

I still can’t quite believe it will happen but, given this week’s rather muddled announcement from the UK government, the prospect has to be taken seriously. After all, the suggestion of staying within the convention, but removing the force of any rulings from the court in Strasburg, seems contradictory.

So what’s driving all this and what would the consequences be?

The central argument for the proposed changes seems to go something like this: ‘We are a democratically elected government and therefore no non-elected, foreign court should be able to thwart our policies’.

I completely disagree. That’s just what should happen.

Rules always require independent, disinterested umpires because active participants are too prone to bend them to suit their own interests. That’s true in all areas of life and government is no different.

Often that bending of the rules is being done for the best of reasons. Governments have sets of policies which they clearly believe will benefit their communities. They want to implement them and have been given a democratic mandate to do so. But the ends – no matter how legitimate – don’t always justify the means. Individual human rights must never be ignored just to bring about a generally desirable outcome.

Of course, if the UK disagrees with that and now believes the needs of the many completely trump individual rights then they probably should withdraw from the ECHR – but it would be a chilling thought.

Likewise, they should withdraw if they no longer believe the rights enshrined in that convention, which Britain took such a leading role in establishing, are the correct ones. In which case, I wish they would specify which of those rights they now disagree with.

But if it’s just that they don’t like having an independent umpire, and prefer instead to mark their own human rights homework, that is deeply misguided and worrisome.

No government, driven to implement its policy agenda, is best placed to judge whether the means they use to do so fully protect the rights of its individual citizens. Human nature means they will be less than objective. No matter that the UK is a democracy. So are the vast majority of ECHR members but they are grown up enough to accept the need for an independent set of eyes.

Can that be provided by British courts? Maybe, but then why stay in an international convention? Presumably because to leave would cause reputational damage to the UK, so Mr Raab and his colleagues prefer to simply dilute the jurisdiction of the court which enforces it. Pretty shabby thinking.

Whether other signatories will accept it or invite the UK to leave the convention I don’t know.

If they did ever end up leaving, how would this affect Guernsey?

Quite a lot. I am 99% certain we could not remain signatories if the UK withdrew. We simply don’t have the international persona to sign up in our own right. So I am presuming that if the UK comes out of the convention, so will we.

‘So what?’, I hear you ask. How often does the court in Strasbourg rule on matters related to Guernsey?

Not often, but sometimes.

I was a member of the Housing Authority under the presidency of Deputy Binnie Lincoln when a case was taken there challenging both the existence of Guernsey’s Housing Law and the way it was being applied. The court ruled in favour of the law but not aspects of its application – and these had to change. Good. We were too close to the issue to see the wood for the trees.

Likewise, it was the narrative in a ruling from the court in Strasbourg which led to Guernsey’s crown appointments taking a far less overtly political role in the affairs of the States. In retrospect, this too was a very wise direction.

But it is not just the very occasional involvement of the justices in Strasbourg which allows the convention to protect Guernsey citizens from the actions of their own government. It has that influence day in and day out. Often, as States committees discuss possible policy developments, they are warned, ‘I don’t think you can do that as it might infringe our convention obligations’. But of course the public never see that process.

So would Guernsey people be better off without the protection of the ECHR? In my view, definitely not.

If the UK replaced it with a homespun charter of rights, enforced by British courts, should we even consider joining it? Definitely not. What would membership of such a domestic arrangement say about Guernsey’s constitutional autonomy?

What about the States being completely unshackled by the need to comply with any human rights document involving external remedies? After all, do Guernsey people really need protection from their own government?

Believe me – they do.

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