The now structural contrast between the global protection of individual rights and state interests highlights the crisis of the model based on the European Convention on Human Rights. The English choice could have consequences that go far beyond regaining control over sovereignty and security by Andrea Monti, professor of Digital law in the degree course in Digital marketing, former professor of law of order and public security at the University of Chieti-Pescara – Initially published in Italian by Formiche.net
On December 14, 2021, following up on press reports from a few months earlier, UK Justice Secretary Dominic Raab announced a draft reform of the Human Rights Act. The reform will remove any automaticity between the European Court of Human Rights decisions and their enforcement in the British Parliament and courts. Thus, although formally the UK will continue to respect the Strasbourg Convention, in fact, the new Human Rights Act will repudiate it.
The de facto repudiation of the European Convention on Human Rights
This conclusion is apparent by reading (not too much) between the lines of the reform project’s presentation:
The UK will remain party to the ECHR and continue to meet its obligations under the convention and all other international human rights treaties. However, Ministers will ensure the UK Supreme Court has the final say on UK rights by making clear that they should not blindly follow the Strasbourg Court. It will mean that rights are interpreted in a UK context, with respect for the Country’s case law, traditions, and the intention of its elected law makers.
The reasons for the UK choice
If completed, this reform will allow the British authorities to manage, in substantial autonomy, of public policy in matters of security, fight against criminality and terrorism, without suffering ‘interferences’ from an entity – the Court of Strasbourg, in fact – whose decisions are considered ‘alien’ for the British juridical tradition and unacceptably ‘interfering’ with number 10 Downing Street political choices.
Public Consultation’s Chapter 3 lists the reasons for the reform or —depending on the perspective— for the conflict with the European Court. As far as it is of interest here, the document highlights, on page 28, the negative impact caused by the unbalanced growth of the ‘culture of rights’ on individual responsibility, public interest and public security; moreover, on page 29, it criticises the living instrument doctrine developed by the European Court, ironically, in a case against the United Kingdom.
According to this principle, the Human Rights Convention is interpreted —and this is the UK criticism— by applying it even beyond the rights originally envisaged. One case in point cited by the document is Article 8 on the right to respect private and family life. However, beyond the examples mentioned in the official sources, it is reasonable to think that other decisions had contributed to this policy choice, such as the one of June 2021, in which the Court sanctioned the United Kingdom for the management of mass surveillance , or, before that, the one of 2008, in which it condemned the refusal of the judicial administration to delete fingerprints and DNA sequences from police databases after acquittals and convictions. In both cases, the Strasbourg Court stepped-in directly into areas that constitute the heart of any State’s policy, conditioning (at least in theory) its choices.
The political significance of the UK choice and the impact on international relations
It would be too easy to ‘dismiss’ the de facto repudiation of the European Convention on Human Rights by recalling traditional British ‘isolationism’ because, in reality, the UK choice is a political statement about the prevalence of national interests and jurisdiction over treaty law. Not unlike the ‘Polish constitutional rebellion‘ that exposed the (well-known) limitations of the EU’s founding treaties, the British decision vindicates the right of a State to have the last word on issues crucial to the survival of the State itself.
The point, therefore, is not the merit of the reform but its political significance: in matters of security (whether public, national or judicial), there can be no outside interference, and even less so by bodies (the international courts) composed of a limited number of individuals from different and alien cultures and experiences. In other words, the UK approach challenges the assumption that grounded the creation of international or ‘a-national’ judicial apparatuses in the field of human and other kinds of rights.
In a globalised economic-industrial model, the chain of command and control extends beyond state borders. It is ‘hooked up’ to private multinational structures . In this context, therefore, international courts (from the WTO to sports Courts) play an essential role in the creation of a global system of rules and soft law that are an indispensable prerequisite for the certainty of economic exchanges and the movement of people.
However, in recent times, the side effects of this approach have been an increase in the use of trans- or a-national law as a system of geopolitical pressure and the impatience of executives with rules that, issued in the name of the very rights to be protected, limit public policy based on a ‘whatever it takes’ approach.
Drawing the necessary consequences from the nonacceptance of the authority of sovereignty-lacking entities, one should conclude that the entire system of world governance should go back to the Westphalian World order, discharging the neo-medieval framework.
Regardless of its desirability, it is pretty clear that the process is underway; what is not at all clear is how and with what consequences two opposed geopolitical approaches can coexist.
Why Italy should reflect on the British choice
Unlike the United Kingdom, Italy does not have (or does not want to have) a clear perception of how politics and rights interact with regard to the management of national security and the protection of national interests.
While other Western Countries – but also the Middle and the Far East – understand neatly the role of their respective intelligence structures and security apparatuses, Italy is still in the middle of the road, bogged down in a regulation — Law 124/07 —which is much more anachronistic than its age suggests).
As if that were not enough, the picture is made even more confused by the legislation on the national cybersecurity perimeter, by the law establishing the Cybersecurity Agency and by the Electronic Communications Code that has just come into force. Everywhere there is talk of ‘national security’ but, to paraphrase Metastasio’s Araba Fenice, ‘what it is, no one knows’.
Therefore, to reform the Law 124/07 means to decide, first of all, what interests the security apparatuses of the State must operate in, how far they can go and what will be the limit beyond which ‘interference’ by extranational bodies and subjects cannot be tolerated.
The answers to these questions are not simple. They presuppose whether or not to define an impassable political boundary for anyone when the Country’s interests are at stake. They require, therefore, also to take note of the fact that the EU is exceeding the limits of competence in matters of national security set by Para II of Article 4 of the Treaty of Maastricht, which the EU is going beyond by using an approach analogous to the living instrument doctrine of the Strasbourg Court.
The situation’s delicacy and the seriousness of the consequences in case of errors or ambiguities in decision-making cannot be overlooked. Certainly, however, the only impracticable option is to postpone a choice whose effects can only be governed (if taken timely) or suffered (if postponed indefinitely).