Are Britons more sensible than Europeans on human rights?

by Zoë Jay

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The European Court of Human Rights, Strasbourg. Photo: Simon via Flickr

The United Kingdom is a nation of common sense and reason, or so the stereotype goes. Seemingly surrounded by the dreamers and idealists on the continent who push forward with European integration at any cost, Britain alone is sensible and practical enough to see Europe’s flaws and propose reforms. So in 2014, when the Conservatives pledged that they would ‘restore common sense’ to human rights in the UK by curbing the influence of the European Court of Human Rights (ECtHR), they were drawing on a familiar and, for many, comforting idea.

But what exactly does it mean to claim something is common sense, and how does it affect the troubled relationship between the UK and ECtHR? Calls for common sense have become a prominent element of debates in the UK about the ECtHR, as well as about Europe in general, but are often forgotten when it comes to thinking about the broader narratives and references to national identity that underpin these debates. A closer look at what politicians mean when they use arguments about common sense can shed light on some of the more specific tensions that characterise the UK’s relationship with the ECtHR.

Ever since Thomas Paine argued that it was common sense for the American colonies to declare independence from Great Britain in 1776, claims that something is ‘common sense’ have been a popular shorthand for politicians trying to convince the public that an idea or policy is ‘good’ or ‘sensible’. It implies that the idea is obvious and cannot possibly be doubted by a reasonable person. Thus, when critics of the ECtHR and the domestic Human Rights Act (HRA) talk about the need to ‘restore common sense’ to human rights in the UK, they are suggesting that the way rights were protected in the UK before the ECtHR – through gradual development in the British Parliament and common law, rather than through an overbearing international court – was ‘right’ or ‘sensible’, while casting the European alternative as nonsense.

Common sense also has a deeper meaning in Britain, as a conservative, anti-intellectual tradition dating back to the Victorian and Enlightenment eras that is wary of the abstract theories and ideologies advocated by European intellectuals. Advocates of common-sense thinking such as Edmund Burke shunned the broad, generalised theories and obscure language of European intellectuals. The Europeans’ philosophising was seen as too far removed from the real, observable world. Instead, common-sense thinkers prefer the gradual development of ideas and institutions through trial and error, as well as plain language and pragmatic, applied reasoning

This notion of common sense as practical and grounded in real experience mirrors the nature of British institutions like Parliament and the common law, which have evolved through convention and experience over centuries. It also implies the pragmatic application of ‘plain facts’ and reason to produce ‘standard’ or literal interpretations of the law – a practice that is evident in British judges’ letter-of-the-law approach to interpreting parliamentary legislation, and their preference for considering the unique circumstances of individual cases over applying broad legal principles. In contrast, the ECtHR interprets the European Convention on Human Rights (ECHR) as a ‘living instrument’, emphasising the ‘spirit’ or general purpose of the text. This entails a slightly more abstract, generalised way of thinking that more closely reflects the continental traditions common-sense advocates seek to avoid.

These differences between the British common-sense tradition and the European approach have clearly influenced the UK’s relationship with the ECtHR. For instance, in the 2014 policy document announcing their plan to curb the influence of the ECtHR in British law, Protecting Human Rights in the UK, the Conservative Party asserted that ‘the UK’s protection of human rights has always been grounded in real circumstance, rather than simply being a matter of abstract principle’. This claim suggests that while European judges fret over vague principles and doctrines, the UK has a long, clear history of protecting rights in a pragmatic, sensible way that suits the real needs and circumstances of Britons.

Similarly, Theresa May’s claim when she was Home Secretary that the ECtHR’s ‘crazy interpretation of our human rights laws’ prevented the UK from deporting a terror suspect to Jordan is a key example of the belief that the ECtHR goes beyond what is reasonable when it comes to hearing human rights cases. In this view, the ECtHR’s broad interpretations of the ‘spirit’ of the Convention are seen as too generalised and abstract to be practical, entitling it to engage in judicial activism that unduly protects criminals and tramples on the UK’s independence and sovereignty.

The common-sense tradition also draws attention to the fact that the (perceived) problem lies specifically with the ECtHR, rather than with the Convention or with human rights in general. As Protecting Human Rights in the UK suggests, ‘the Convention is an entirely sensible statement of the principles which should underpin any modern democratic nation’. British lawyers played a crucial role in creating the ECHR, so the original text closely reflects Tory ideas about human rights.

But claims that the ECtHR is engaging in ‘mission creep’ suggest that many Britons feel the Court has lost sight of what is sensible when it comes to deciding how to protect Convention rights, and what is reasonable when it comes to the authority of an international court relative to national authority and sovereignty. In this sense, calls to restore common sense are not just political rhetoric, but also represent concerns about losing national power and authority to increasingly influential international bodies.

Whether the plan to curb the influence of the ECtHR in British law would really ‘restore common sense’ to human rights in the UK remains to be seen, and in any case is off the table while Brexit negotiations continue. But the ideas and values that make up the British common-sense tradition – pragmatism, plain language, and progress through trial and error – clearly contribute to a belief in political discourse that the UK legal system and approach to human rights is different from, and more sensible than, the European system.

To this end, political references to common sense provide insight into what British politicians are critical or wary of when it comes to the European human rights system: high-minded idealism and generalised principles that (seemingly) clash with more pragmatic British ways of thinking and threaten national authority. As the UK continues its battles with the ECtHR and other European institutions, having a firm grasp on the ideas that inform politicians’ claims about what is sensible or not is, well, just common sense.

About the author

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Zoë Jay is a PhD Candidate in International Relations at the University of Tasmania. Her research interests include European politics, human rights, and international law.
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