Robert Buckland: Russia, Britain and human rights. Putin has contempt for international law. And we should not be careless with it.

13 May

Robert Buckland is MP for South Swindon, and is a former Secretary of State for Justice and Lord Chancellor.

There can be no doubt that Vladimir Putin’s invasion of Ukraine is a naked act of aggression. The people of Ukraine, over 12 million of whom have been forced to leave their homes, have endured nearly three months of shelling, bombing, separation from loved ones, loss of homes, loss of livelihoods and most tragically, loss of lives.

Heartbreakingly, they are set to endure more still, with no peace agreement in sight, and no apparent sign of Putin making any concessions, despite his increasingly isolated position on the world stage.

The International Court of Justice has ordered Russia to “immediately suspend” its military operations in Ukraine. The International Criminal Court Prosecutor, Karim Khan, has opened an investigation into the conflict, saying that he has reasonable grounds to believe Russia has committed war crimes.

And the Council of Europe – the continent’s leading human rights organisation and home to the European Convention on Human Rights – has expelled Russia, after 26 years of membership.

During recent months, Putin has shown a blatant disregard for international law and disdain for the rights of his citizens at home. The West and its rules-based order has been branded an illegitimate “empire of lies”, with domestic dissenters cast as “traitors” who need to be purged through a “self-cleansing of society”. Chilling, to say the least.

None of his actions or rhetoric have occurred in a vacuum, however. The suppression of independent media, already muzzled in the early years of his regime, became all-consuming after his illegal annexation of Crimea in 2014.

At the same time, Putin consciously began decoupling the Russian legal system from the laws and principles set out by the European Council. This first manifested in occasional high-profile cases, in which Russian Courts would ignore precedents outlined by the Council of Europe and the European Court of Human Rights in Strasbourg.

By 2015, a new law gave Russia’s Criminal Court the ability to ignore Strasbourg judgments on human rights if they conflicted with Russia’s Constitution, and by 2020 Putin had signed a decree into law that declared Russian law to be supreme over international norms.

The decoupling from western institutions and rejection of international law strengthens the Kremlin’s power and authority, but it is an authority that is increasingly having to be manufactured, rather than genuinely earned. Even nominally democratic events such as the referendum validating Putin’s 2020 constitutional amendments were littered with corrupt practices, with Russians enticed to vote by the offer of free smartphones or apartment blocks, and given the choice of only yes or no in ratifying 206 separate proposals.

Whilst Russia’s expulsion from the Council of Europe sent a clear message to the Kremlin that their illegal invasion was not going to be accepted by the international community, it has left the Russian people even more exposed to the whims of a despotic and increasingly paranoid regime.

As a result of the Russian expulsion, they are no longer protected by the European Court of Human Rights, and the many thousands of Russians who have lodged appeals to the European Court (just under one in four of all cases) are left in legal purgatory. On top of this, there is also now a very real chance Russia could reinstate capital punishment – recently described by Dmitry Medvedev, the country’s former president, as “a good opportunity.”

The European Court of Human Rights has often been the subject of criticism here at home, but it is a force for good in the world and I strongly believe that the UK should remain a party to the Convention that it oversees.

It is always worth remembering that British lawyers drafted the Convention before its adoption in 1950. Britain has led the way on the protection of fundamental rights and freedoms. The unprovoked and unjustified attack by Russia on Ukraine underlines more than ever how important it is to safeguard fundamental human rights and freedoms, across Europe and the world.

I was pleased therefore to see the Government confirm their intention to update the Human Rights Act and to reaffirm that remaining in the Convention remains Government policy. It is vital that, in the current context of war in Europe and a direct threat to our values, Britain retains its leading role in the defence of fundamental rights and freedoms. I welcome Britain’s firm and continuing support of the work of the International Criminal Court in its investigation of Russia’s military actions in Ukraine.

The work of the Independent Review of the Human Rights Act, set up by me as Lord Chancellor to consider the case for reform and chaired ably by Sir Peter Gross, provided a thoughtful, comprehensive and stable platform for change.

I am not convinced, however, by calls for a “Bill of Rights” to entirely replace the 1998 Act. I am concerned that, in trying to make a political point about the primacy of our own laws, which I entirely agree with, the Government risks creating more uncertainty but giving rise to a new set of rights, with their meaning being determined by domestic courts in a way that will only increase the tension with Parliament, rather than reduce it.

Many of the problems that the Government has identified as a reason to reform the Human Rights Act cannot be solved purely domestically anyway, and some of the solutions proposed could actually make things worse, by increasing the number of people in the UK who feel the need to go to the European Court.

More importantly, proposals that would enable the UK Parliament to disregard European Court rulings and define Convention rights as something other than the Court, as ultimate arbiter, itself determines, sends entirely the wrong message about the UK’s support for and commitment to international law.

The Government would be better advised to implement the Gross recommendations and codify the recent approach being taken by the Supreme Court, which has made it clear that the rights contained within the Convention do not have an autonomous meaning in our domestic law and that it is not for the Courts to, in effect, “gold plate” these fundamental rights.

Lee Rotherham: Europe’s new radical alliance is brittle, but offers the EU an important warning

15 Jul

Dr Lee Rotherham is a member of the advisory board of Kids Count.

In a recent piece on this site, Garvan Walshe pondered the development of a new continental Eurosceptic coalition. This “rassemblement des patriotes” brings together the parties of Marine Le Pen, Viktor Orban, and Jaroslaw Kaczynski among others. The phenomenon serves as a marker not only of the EU’s past mistakes, but also its future ones.

As the piece noted, it is not a simple alliance nor a very deep one. It excludes a number of Eurosceptic players, most notably the Czech ODS and some key Scandinavians. The definition of “Euroscepticism” among signatories is elastic: in addition to the Italian contingent navigating a coalition government, Le Pen’s own Rassemblement National accepts the Euro and rejects Frexit. The fact that Orban, having been forced out of the EPP, is now jumping into a new grouping he originally turned down in 2019 certainly demonstrates an element of instability.

Yet the simple fact of this arrangement is a milestone. It reminds one of the quote attributed to a continental diplomat at the time of Maastricht that, “If the British did not exist, we would have to invent them.” After Brexit, that is precisely what is happening.

To explain why, we need to first understand where the impetus to generate a group comes from. It is an institutional response to an institutional problem.

European bodies in recent years have increasingly formalised political alliances for administrative purposes. Even within the Council of Europe, you may recall several years back how United Russia formally sitting alongside the Conservatives suddenly became an issue.

Within the EU this has become very developed. Political groups have a composite budget and employ staff (on healthy wages) for policy drafting, committee work, negotiations with counterparts, and generating the whip.

Group size determines budget share, speaking time, share of posts and committee places, PR money for MEP freebies, and the very significant think tank money for the likes of the Wilfried Martens Centre. It also guarantees a seat at the Conference of Presidents running EP business. Being able to generate a group is therefore important, and the bigger the better, though the dynamic limits are evident if we remember Conservative membership of the EPP.

There is a threshold for setting up a group. Currently, 23 MEPs are needed, and at least one-quarter of the member states must be represented. Look back to my 1998 edition of the Vademecum though, and it’s 29 from one member state, 23 from two, 18 from three or 14 from four or more.

Why this jump to get members from at least seven countries? In large part, it was ruthless cynicism. It was assumed by the main groups that it would difficult for Eurosceptic groups to reach that threshold given both ideological differences and the lack of pan-Europeanism. They weren’t wrong.

The net result was four Eurosceptic blocs. There was a “soft Eurosceptic” element in the ED subsumed in the EPP, emerging again to become the ECR. There was the “hard Eurosceptic” group (variously EdN, EDD, Ind/Dem), dependent on small MEP delegations and ever hovering on dissolution.

Then there were the small group of Left/Green “Europe is a capitalist plot” Eurosceptics, counterpoised with their fellow Left/Greens who saw the EU as a mechanism to smash big industry. That left the “political untouchables” often sitting as the ragtag leftover Non-Inscrits (an attempt to formalise this as a group was defeated in the courts).

This then generated an EU political scene dominated by ideologically-overlapping Centre Left and Centre Right groups, largely operating in a state of formalised compromise; and on the edges a marginalised and divided Eurosceptic opposition, obliged to make its appeal directly to the electorate.

With Brexit though the group maths has changed, and I would suggest it is generating contradictory imperatives. Strategically, it encourages radical parties to soften in order to cooperate internationally; but there is also a competing domestic pull to harden their positions more, to secure support among increasingly alienated social conservatives at home. It is not yet clear which force will win out; following how Estonia’s new EKRE party plays out will perhaps be an early pointer.

Set in the context of group politics, the arrival of this new “rassemblement des patriotes” correspondingly suggests three significant conclusions.

First, it is significant that the named trigger was the Conference on the Future of Europe – basically a second Convention on the Future of Europe, which last time round offered up an EU Constitution. The EU is already repeating the same mistakes it made before, anticipating more integration rather than questioning assumptions and remembering lost referenda.

So far the ECR Eurosceptics around veteran MEP Jan Zahradil have been doing the running in the fightback. This new group though is now giving notice that it intends a massive organised pile-on as well. Expect the Conference to heat up and its findings to generate a political crisis next year, and quite possibly several.

Second, it’s clear there are enduring splits among Eurosceptics about who is and who isn’t an appropriate partner. Sharing a broad opposition to EU integration is still not enough. It is nevertheless a fact that parts of “New Europe” are very socially conservative and reject the EU’s direction both conceptually and emotionally.

This social conservatism also happens to be shared with large parts of Russian society. It is hardly surprising in that context if Putin’s domestic politics give him a certain specific appeal, not as a border revanchist but as someone who dares push back against a Western “policy consensus gone wrong”.

Third, we can predict that EU politicians will botch their response. Brussels players too lazily conflate extremism with populism, and populism with popularity. Experience suggests that this is often down to a combination of a lack of intellectual curiosity plus short-term political advantage.

But attempts to marginalise, delegitimise and humiliate only serve to polarise by disenfranchising. Even a more tempered approach that ignores the core grievances still produces asymmetric and anti-establishment figures in response, from Beppe Grillo to now Slavi Trifonov in Bulgaria.

This is certainly not an endorsement of any political party’s stance: it is simply a warning that serious EU policy failures especially over immigration and Eurozone management need to be fixed and not rendered taboo. Liberal campaigners also need to recognise that the European Courts are a counterproductive mechanism for pursuing major social change by lawfare.

This new radical alliance (for want of a better term) is indeed brittle. It is uncemented, frangible, and perhaps ephemeral. But if Brussels commuters physically need to see an early warning sign that any move to grab more EU powers next year is going to end badly, then this is it, plastered all over a billboard.

John Howell: It is time for Britain to take the Council of Europe more seriously

9 Oct

John Howell is the Member of Parliament for Henley, and a Member of the Parliamentary Assembly of the Council of Europe.

“Why are we still in the Council of Europe when we have left the EU?” was a question put to me by a colleague in the Conservative Parliamentary Party.

I tried to explain that the Council of Europe was not and had never been part of the EU. That it did things in a very different way to the EU and was almost twice the size of the EU, with some 47 members. That it had made a long and valuable contribution to peace and security across Europe.  I also tried to point out that no country had become a member of the EU without first being part of the Council of Europe.

In the end, I fell back on our old mantra that was simple and yet to the point. We were in the Council of Europe because while we had left the EU we had not left Europe, and this was now one of the most important ways of keeping contact across the continent and playing our part in seeing what positions needed a common view on European issues.

I could have also pointed our that the Council looks after the European Court of Human Rights (which is not and has never been part of the EU) and to which, as a member of the UK’s parliamentary delegation to the Council, I help elect the judges.

The conversation went on. “So, what has the Council of Europe ever done for us?” asked my colleague. The Council was set up to ensure that human rights prevail across Europe. It is the leading human rights organisation in Europe and most of what it does, it does through the prism of human rights. But it also stands up for democracy and for the rule of law.

On a statutory basis the Council does not legislate itself. There is no equivalent of the EU Commission giving instruction. What the Council does is set the standards that member states can apply through individual conventions or treaties that come through in member states’ domestic legislation.

It was, for example, the Council which started the debate about human trafficking which has come forward into UK domestic legislation and is at the centre of our foreign policy. It was also the Council which tackled the problem of protections for children and to ensure that they are kept safe from violence and exploitation. The Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse came into force on 1 July 2010 and aims to prevent the sexual abuse of children, including at home or in the family.

Another area with which I am very involved is in monitoring human rights in Turkey. Keeping Turkey on course is crucial to a Europe that is pacific and calm. Unfortunately, at the moment we have a situation where lawyers in Turkey are being attacked by the Government and given heavy prison sentences for defending what are seen as “terrorism-related” individuals. Lawyers should not be criminalised for exercising their profession or convicted on dubious charge,s and we are putting pressure on Turkey to review these convictions.

In addition, the Council of Europe played a pioneering role in the struggle for the abolition of capital punishment. I have long opposed the death penalty and regard it as having no place in democratic society. The abolition of the death penalty is a precondition for accession to the Council. No executions have been carried out in any of the member states since 1997. I know that there are some in this country who take a different view, but I am not going to go into that here.

Some of the other ways in which the Council of Europe operates include scrutiny through a system of specific committees. It can also question Ministers, Prime Ministers and Presidents of member states. The Prime Minister of the United Kingdom has in the past been questioned in this capacity.

On the question of upholding democracy, the Council conducts monitoring of elections around Europe to ensure that they are fair and free. This is a crucial element of the Council’s work to make sure that all countries conform with proper election practice. My suggestion, though, that the Council should monitor the last set of EU elections did not go down terribly well!

It also looks to take a common view on certain key issues such as the recent elections in Belarus and the role of Russia in a modern Europe. Belarus is not a member of the Council; it has not given up the death penalty. But the current post-election situation needs to be exposed, which the Council is doing.

Similarly, with the rule of law it has a body of legal experts known as the Venice Commission to which laws, such as the new laws in Russia, can be put for opinion as to whether they meet modern standards in human rights, the rule of law and democracy.

In addition, the Council of Europe has as associate members two groups which may cause surprise – Israel and the Palestinians. Sadly, Israel is often treated with nothing short of anti-Semitism by certain sections of the parliamentary assembly of the Council. Both groups tend to give predictable speeches about issues that affect them. But just imagine what could be achieved if we could organise meetings where the Council tried to bring them together to talk about peace in the region and how to deal with settlements.

Finally, I want to touch on the European Court of Human Rights. As one former Lord Chancellor made clear in answer to a question I had put, this is a court where we have well over a 90 per cent success rate. That is, many cases are simply not brought for hearing but are dismissed before they are even heard. This is no wonder when we have a judicial system that is so advanced and developed and a model of judicial approach.

States also have the power to derogate from individual elements of the European Convention on Human Rights provided they meet a number of conditions. The first of these is that there is a war or other public emergency threatening the life of the nation. The situation with regard to Covid-19 has raised issues in this respect, but illustrates that the Convention is meant to be practical.

The Council of Europe was formed in 1949. The United Kingdom was foremost amongst its ten founding members and, under the leadership of Winston Churchill, the inspiration for its creation. It is part of the rules-based order in which we invest so much time and energy. It is often accused of being just a talking shop. But there is real value in having a place where major issues that face our continent can be talked through to see whether a common line is required and what that line should be.

And yet, whilst it is almost revered across much of Europe, this country rarely sends even a journalist to cover its proceedings. It is necessary not only to take this organisation seriously but also to continue to show the real leadership it needs