When Britain stands accused in the dock

After the ruling against the UK by the Court of Human Rights in the Gibraltar case, Stephen Ward explains why such embarrassments are likely to continue

Rows involving the Court of Human Rights in Strasbourg are never about human rights; they are about who defines them and who enforces them.

Thus the Government's reaction to yesterday's ruling on the Gibraltar case was to say that European judges had misunderstood the British way of life, and that their judgment would be incomprehensible to British people.

The court is often confused in the public - and probably political - mind with the anti-European xenophobia linked to the European Union, but it is much wider, including three times as many countries as the 12. The court has one judge from each member country.

The more paranoid members of the Conservative Party suspect that new judges joining from former Communist countries are likely to be anti- establishment because of their experiences under Communist governments. In yesterday's judgment the judges from Estonia, Lithuania, Slovakia and Poland voted against Britain. Slovenia and Hungary voted the other way.

Britain has probably antagonised some other countries by nominating as its representative Sir John Freeland QC, who had previously appeared regularly at the court to defend the Government.

Why should the court be so hard on the UK in particular? The British government has been found guilty of more than 35 human rights violations out of 76 cases heard, and more are pending. Only Italy has lost more judgments. The figures are open to several interpretations, however. Taking population into account, and the fact that Britain has been taking complaints for longer than others, it is only the 15th most criticised nation, better than Italy, Switzerland and France.

No country can expect to win all the time, simply because at this level of complexity of judgment there will always be good arguments on both sides. Hence there is almost always a split among judges - in the House of Lords, in the US Supreme Court, and in Strasbourg. Judgments get reversed all the time at various stages up the British legal process, and the cases that get to Strasbourg are only those which have already exhausted domestic remedies. Even among those referred to Strasbourg, only a small proportion receive a hearing. So you would always expect a certain number to go against House of Lords' rulings.

But Britain is still losing an embarrassing amount. Why? It is suffering because it is in an inconsistent position - it ratified the human rights treaty in 1950, and in 1966 (when no one thought it was a very important step) gave citizens the right to take their cases directly to Strasbourg.

Yet the treaty has never been incorporated into British law. Only Ireland is in a similar position among all the other signatories. This means that the British courts cannot take the treaty into account when they give rulings, so even the House of Lords cannot head off cases at a level where they avoid international embarrassment to the British government.

The embarrassment will continue: the next cause celebre will be the ban on gays in the British armed forces. The judges believe it is a human rights abuse, and Lord Justice Simon Brown said so in court, but it is not a breach of British law. So, in another two years' time, Strasbourg will rule against the UK. As Lord Lester, the leading advocate of incorporation, puts it: "Britain's dirty linen has been washed slowly, expensively and inefficiently in Strasbourg. Meanwhile, British judges are unable to help at home because they have no parliamentary mandate to do so."

The trouble with pulling out of the court, however attractive to a Conservative conference, is that however it is explained, in effect it makes an international statement that Britain does not respect human rights. The Home Office would like to pull out, the Foreign Office insists it is impossible. But there are strong arguments against incorporating the treaty into British law, too, not only from politicians wary of the courts, but from at least one senior judge.

According to Lord Donaldson, a former Master of the Rolls, it is "constitutionally totally unacceptable" that the convention should restrict Parliament's right to govern. He sometimes feels Parliament has taken leave of its senses, but that is its prerogative. "If someone else thinks they breach human rights, again that is the right of Parliament. It is not said the courts should have the opportunity to override Parliament, operating on ordinary domestic jurisdiction. I would think that, too, was unacceptable."

In short, the argument of the British government is that if it incorporated the treaty, not only the European judges would be interfering, but the British ones would be joining in, too, and constitutionally they should not. It is trying to have it every way - it supports human rights and the treaty.

This is inconsistent. If it believes the British parliament, supported by the courts in a subservient way, are an adequate guarantee of human rights, it should say so and take its signature off the treaty. If it is afraid to do this because of the effect on world opinion, it has a choice of continuing to be humiliated in Strasbourg, or of incorporating the treaty in domestic law and leaving it to the Law Lords to interpret.

The Law Lords are sufficiently liberal and independent these days that the embarrassments in Europe would probably dry up to a trickle.