Damned lies and bogus statistics

It’s all getting silly. If you only listened to our Lord Chancellor and Home Secretary, you might think that there are few judgments of British courts which aren’t subject to the unwelcome attention of “meddling”, “arrogant” and “unelected Euro judges” in Strasbourg, Luxembourg or Brussels – delete degree of ignorance. In 2012, a cadre of Eurosceptic backbench Tory MPs commissioned a report which purported to show that the UK loses three in four of its Strasbourg cases, an outcome dubbed “Europe’s war on British justice” in the Daily Mail’s subsequent, utterly uncritical reporting.

Their fellow travellers in the eurosceptic media soon warmed to the theme, the Telegraph dutifully churning out an inflammatory, equally uncritical article, echoing the claims. At the tail end of August this year, it was the Sun’s turn, running with the headline: “Euro judges go against the UK in 3 in 5 cases”. More recently, the Express got in on the game, caught out by barrister Adam Wagner overstating the level of compensation paid to successful UK human rights litigants by a factor of two-and-a-half. Half-hearted apologies and corrections follow, but invariably, the damage is already done. The European Convention is written off as a get rich quick scheme for the villainous, the European Court an open house for chancers.

While the precise detail of the statistical falsehoods differs, the underlying message is unrelenting: interfering human rights judges are poking their noses in where they aren’t wanted and aren’t needed. The United Kingdom’s democratic and justice systems are being systematically undermined by the European human rights system.

Persecution complex

The goal of this denigration isn’t exactly subtle. The senior membership of the current Conservative administration in Westminster is dominated by victim-fantasists who harbour delusions of persecution by the European Court. They feel singled out, got at. They feel as if they lose the overwhelming majority of their human rights cases. Theresa May has made clear that “if leaving the European Convention is what it takes to fix our human rights laws, that is what we should do”.

There are legitimate political and philosophical questions about the desirability of adjudicating human rights norms at an international level. Some of the court’s judgments are rightly controversial. On prisoner votes, for example, I am sympathetic to extending the franchise to all of those in custody, but am not convinced that Strasbourg should have interpreted A3P1 to protect them in Hirst. Any court, any institution, is liable sometimes to produce judgments with which reasonable people might reasonably disagree. We should not be troubled by that. Current critiques of the European Court, however, far exceed these bounds. Reviewed in the cold light of day, the distortions of the media and the anxieties of the Home Secretary prove almost entirely unfounded. The Sun, Mail and Telegraph would have you believe that Britain loses the overwhelming majority of its Strasbourg cases. This is a lie, plain and simple. And not even a particularly modest or subtle one.

As any practitioner who has tried to seize Strasbourg of a case knows well, most petitions despatched to the European Court of Human Rights are rejected as inadmissible at a preliminary stage of proceedings. From the applicant’s point of view, that’s an end of the matter: there is no further possibility of appeal, no opportunity for adversarial proceedings, no judgment and no just satisfaction. Short version: the applicant loses, and the respondent state wins. Admissibility decision-making isn’t just an administrative formality: it often goes to the heart of an application and the legal and factual claims it makes.

Belief in fairy tales

We can’t factor these cases out of our understanding of how European human rights adjudication works, yet this is precisely the sleight of hand which the Europhobic victim-fantasists in Whitehall and in Fleet Street make. When you factor admissibility decisions back into your image of Strasbourg, the spectre of “Europe’s war on British justice” vanishes entirely. The United Kingdom lost just eight of the 1,652 applications brought against it and decided in 2013. That isn’t the 75% rate of defeat promoted by the Mail, Tory MPs and Telegraph, or the Sun’s 60%, but only 0.48% of the total number of cases taken against the United Kingdom. If you see this tiny handful of decisions as “illegitimate meddling” in our internal affairs, you’ve got to wonder what rate of defeat the UK justice ministers would regard as a justifiable and proportionate level of European human rights litigation.

You’d never know it from any of the reporting or commentary, but the United Kingdom actually has one of the lowest rates of defeat before the Strasbourg court of any Council of Europe member state, since the tribunal started its work in 1959. Yet the political critique of Strasbourg seems impervious to these experiences and these realities. The gut is to trump the data. We’re actually contemplating pulling out of the Convention system, on the basis of a fairy tale. It beggars belief.

The prevailing critique of the European Court is a political position dressed up as a response to an overweening judiciary. It is on this fantastical, but deeply felt, prospectus that more and more voices are being raised to pull the UK out of the European Convention, to denounce the court’s jurisdiction, and roll up the Human Rights Act 1998. For those of us who believe that the European Convention system has done the country some modest good, this drift in UK political discourse is dismaying, dismal and indefensible – and all too often, totally fact-free.