Judges usually choose their words with care. So it came as all the more surprise to find the president of the European court of human rightsspeaking with real passion about the prospect that the UK might pull out of the human rights convention, which his court enforces.
That would plainly be “a political disaster … a total disaster,” Judge Dean Spielmann told me in an interview for the BBC’s Law in Action programme to be broadcast on Tuesday.
As he explained, renouncing the European convention would mean that the UK would have to leave the Council of Europe, the 47-member body that administers it. Acceptance of the convention was a pre-condition to membership.
It was also well understood that no country could join the European Union without first joining the Council of Europe. So “leaving the Council of Europe would probably also mean leaving the European Union”.
Some people in Britain might say that would be quite a good idea, I suggested to him.
He wondered whether they were aware of the implications of leaving the Council of Europe. Any state that did so would lose its credibility when promoting human rights around the world.
Spielmann, 50, comes from Luxembourg, a tiny monarchy at the heart of Europe which has long been a prominent supporter of political and economic integration.
But he is also Cambridge-educated and a strong admirer of the United Kingdom’s commitment to human rights. After his country was invaded by Nazi Germany in 1940, Luxembourg set up a government-in-exile in London.
It clearly pains Spielmann to think that a country he so admires could follow the lead set by Theresa May.
Speaking in March at a conference organised by ConservativeHome, the home secretary, Theresa May, said that by the next general election her party would need a plan for dealing with the European court of human rights.
She was clear that “all options – including leaving the convention altogether – should be on the table”.
May asked: “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves to what end are we signatories to the convention?”
But the English courts had also accepted that Abu Qatada could not be tried on evidence obtained through torturing his co-defendants, Spielmann said.
“I must say that I have a problem with such criticism because it goes to the heart of the rule of law. Courts are there to decide and to control action taken by the executive. This is the basic principle of any democracy.”
Spielmann could not understand why some parts of the media complained that the Strasbourg court was full of unelected judges.
“When I hear in the British press that unelected judges are deciding cases I must say this is plain nonsense.” Unlike many of their domestic counterparts, he explained, Strasbourg judges are elected by the parliamentary assembly of the Council of Europe.
As I reported here last year, one major European country had its entire slate of three candidates rejected during the assembly’s sifting process.
And there were more strong words for those who claimed that Strasbourg was always ruling against Britain. “It is totally unfair to say that we constantly overrule UK courts. The contrary is true.”
Four years ago, the court came under attack from one of those senior British judges whom Spielmann must have admired. The impeccably liberal Lord Hoffmann complained that Strasbourg had been “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states. It considers itself the equivalent of the supreme court of the United States, laying down a federal law of Europe.”
Spielmann disagreed. The court was prudent on controversial issues. Some said it had not gone far enough.
Did that mean the court was acting politically? It seemed to me that the judges had gone out of their way to avoid provoking a confrontation with the United Kingdom over votes for prisoners, putting compensation claims on hold while the government tried to sort itself out.
Enforcement was a matter for the member states, Spielmann pointed out, not the courts. But he couldn’t resist reminding the United Kingdom of the damage it was doing by failing to implement the court’s decisions.
There was a risk that such an attitude would give a very bad example to other member states, he explained. “They might say, well if the United Kingdom doesn’t comply with our judgments, why should we comply?”
In his view, “such an attitude causes real damage to the UK international reputation, because it undermines the whole system and it causes great damage to the credibility of the United Kingdom when it comes to promoting human rights in other parts of the world.”