TArchie Battersbee’s courtroom drama is over. Whatever you think of the end result, no decent reader can feel anything other than enormous sympathy for his parents, or blame them for leaving no stone unturned to prolong their son’s life. That said, however, the case retains a very troubling feature: the intrusion of big and good organizations from outside the UK, seemingly as a matter of course, into the legal resolution of what should be a fully national.
Until last Friday, everyone assumed that once the English courts had had their say, that was it. But that night, everything changed. The media reportedsensationally, that everything was back to square one because of an “injunction” from a United Nations body, the Committee on the Rights of Persons with Disabilities (CRPD), to whom the parents had “called” to keep the boy alive. The matter returned to the courts, which in due course ruled that the injunction did not have the force of law here.
Once again everything stopped
Was this the end? Actually no. The parents soon filed another petition, this time to the European Court of Human Rights in Strasbourg, asking it to order ‘provisional measures’ to keep the boy alive pending a full hearing on the issues. to human rights. Again, everything stopped; lawyers argued the draw. It took until Wednesday night for things to pick up again after Strasbourg refused to get involved.
In a way, the end result is encouraging. Our courts saw the intervention of the UN, and the keystone of Strasbourg never materialized. Nonetheless, we should still be worried.
On the one hand, these events needlessly prolonged an already agonizing pleading for another five long days, to the benefit of no one and to the continued distress of everyone involved. In sensitive and traumatic proceedings such as these, which must be handled with sensitivity and a minimum of protracted arguments, this cannot be fair.
On the other hand, complaints to international bodies or to the European Court of Human Rights, although they are not technically remedies (as you have probably guessed, our law does not allow any our highest courts to other bodies elsewhere), are used by litigants as if they were. They are increasingly being weaponized as a useful tactic to challenge our courts and invoke the shibboleths of international law and human rights to compel public bodies to act on orders our judges have refused to give. . This is neither healthy with regard to respect for our own legal order, nor comfortable for authorities which find themselves subject to contradictory injunctions. Nor, for that matter, are the legal credentials of the bodies involved themselves entirely flawless. The CRPD is not a judicial body at all, being composed (in fact) of UN apparatchiks professing varying degrees of activism. Even with the European Court of Human Rights, there is no formal requirement for judges to be lawyers and a de facto practice of appointing those who are willing to expand, rather than restrict, the role of human rights standards.
Thirdly, events like this upset the delicate balance between democracy and human rights. Controls such as those exercised by Strasbourg or the CRPD are tolerated by governments precisely because they are limited. Governments tolerate them because they remain free to act at home subject only to their own law. Day-to-day judicial orders, interim or otherwise, are the exclusive domain of domestic courts: international intervention comes only after the fact, in the form of a later decision on whether the government has overstepped. When supranational bodies such as the CRPD or the Strasbourg court start issuing orders about what will happen in the future, they usurp the function of national courts, tipping the scales and risking losing any acceptance they have already.
If you want confirmation, look no further than the events of seven weeks ago, when the Strasbourg Court peremptoryIt was ordered in the UK not to return an asylum seeker to Rwanda, contradicting the refusal to intervene by our own courts. All hell broke loose, and there was serious suggestions that this could lead to the UK leaving the ECHR entirely. This is a lesson that needs careful consideration.
What should we do with this mess?
With Strasbourg, there is indeed a debate on legality. The Human Rights Convention explicitly requires the UK to obey final Strasbourg judgments, but says nothing about interim orders. It was the Strasbourg court which unilaterally insisted on somewhat specious grounds that the letter should be treated in the same way; the British government for its part does not agree. In practice, however, this problem may very well disappear quietly. Following the Rwanda debacle, Dominic Raab’s Bill of Rights now contains a provision allowing UK public bodies and forcing his courts to simply ignore them. It seems like a sensible solution. We do not know how the Council of Europe, which administers the Convention, will react. But this body may well see discretion as the best part of bravery if it wants to keep the UK on its side.
And the UN? The CRPD “injunction” stems from an allegation that a slightly obscure UN convention that we ratified in 2009, the Convention on the Rights of Persons with Disabilities, required it as an aspect of Archie’s right in as a person with a disability to life and equality. Here, moreover, we were explicitly required to take seriously any UN “request” for interim measures: hence the referral of the case to the courts.
This, in the long term, is more worrying
This, in the long term, is more worrying. Although our courts have fortunately found the orders of the CRPD to be unenforceable at the national level, they remain valid under international law. And they could be annoying. Not only will the government face new guerrilla warfare in the future from the UN over decisions concerning the best interests of those unable to fend for themselves; more seriously, other conventions also have similar provisions, with and therefore present similar prospects of harm. Take, for example, another convention ratified by the UK, the Convention on the Elimination of Discrimination against Women (CEDAW). This says a lot about issues such as abortion and the duties of governments to intervene in education in the name of equality: one might well find clumsy pressure exerted here too through interim orders from the committees of ONU.
Having signed covenants like these with the misplaced feeling that they were for a good cause and did no harm, we may now need to reconsider our position. We should be prepared to consider either withdrawing entirely, or at least withdrawing from these protocols allowing us to be commanded by international civil servants. Such a process may well be politically uncomfortable. But if the choice is between retaining a vague international welfare factor and preventing international organizations from interfering in internal affairs that should not be their business, then the radical option.