Minarchy in Europe: The Non-Politics of the European Convention on Human Rights and the Council of Europe

The European Court of Human Rights, which enforces the European Convention on Human Rights, as part of the Council of Europe is periodically in the news in Britain for mostly negative reasons.  Most recently this has been about a Court judgement which demands that the United Kingdom allow some prisoners to have voting rights in parliamentary, and other, elections.  I do not have any problem with the idea myself, but the possibility that Britain could be pressured to legislate on these lines, with no evidence of popular support for  such a measure has been a disaster for the credibility of the Court and the Convention in Britain.  The Council of Europe is not the same thing as the European Union, though membership of the Council is  a prerequisite for membership of the EU to be considered.  Nevertheless, there is clearly confusion in many people’s minds on this point, and sometimes among people who should known better, who use the prisoners’ voting rights decision to bash the European Union.

There is a very high degree of Euroscepticism in Britain, and at present most Conservative activists and politicians would probably welcome British withdrawal from the EU.  If the Conservatives stay in government, particularly if they don’t need to form a coalition again, there could be a referendum coming on membership and an attempt to persuade the EU to allow Britain to withdraw from large parts of EU treaty obligations.  The possibility of  a referendum on membership would be a threat to pressure the EU to negotiate on this issue, and if there was a vote there is at present little reason to assume that  Britain would stay in, though public opinion can change during a campaign on such an issue.  That is exactly what happened the last time there was  a vote on British membership in 1975, following on from unfulfilled claims by the Labour Prime Minister Harold Wilson that he would renegotiate membership.  Allowing member countries to withdraw from established agreements is very much not what the EU institutions like, and there are already indications of an EU core which would pursue integration without the participation of on-core members, particularly Britain.

As pointed out above membership of the Council of Europe is not the same as membership of the EU.  The Council includes all European democracies including at least three countries which may not qualify as genuine democracies, Azerbaijan, Russia and Ukraine, though there are certainly democratic forms and elements of democratic practice in those countries.  The only country excluded is Berlarus, though I can’t see it has much less of a case to be a member than the three countries just mentioned.  Some  states with contested legitimacy (e.g. Kosovo) are  not members.  The Council originally separated European democracies from dictatorships, particularly those of the Soviet bloc, though it has now stretched its definition of democracy to the limit in the hope of integrating some marginal countries into a cross European democratic culture.

Opposition to the Convention, lie opposition to the EU, largely comes from the right in Britain, though this has not always been the case.  One of the most notable events in the history of Britain in relation to the Conventi0n was a 1981 decision to ban strict enforcement of closed shops, that is agreements between employers and unions for all workers to belong to a designated union.  By then Margaret Thatcher was already Prime Minister, and the closed shop was on the way out, but that Court decision certainly aided the process.  Memories on the British right are short, and there is a clear drift to seeing the Human Rights Court, lie the EU, as an ‘undemocratic’ intrusion on British sovereignty, with the intention of imposing socialism and political correctness.  This concern with  supposed non-democracy was not evident when the EU/ECHR were seen as capitalist institutions maintaining defences against socialist inclined governments.

The European Convention on Human Rights has a democratic origin, in the Council’s Consultative Assembly in 1949 which was not directly elected, but did represent the European democracies of the time.  It has has a British origin, as the chair of the relevant committee was David Maxwell-Fyfe.  The highly Eurosceptic conservative British journalist, Peter Oborne, has pointed all of this out, and is an advocate of the Convention, though not the EU.  However, that is not the majority  or trending view on the British right.  The arguments about democracy and European institutions have been highly opportunistic in Britain, as on the whole left or right complains about this issue depending on whether European institutions are seen as pulling Britain to the left or the right.

There are problems.  The EU has given more power to the European Parliament, but the relationship between Parliament and other institutions is very unclear to most people, and voting figures keep dropping.  The Council of Europe poses a different problem.  The Convention can be amended by its own parliamentary body, still not directly elected, and in practice a coalition of governments could force change.  However, sufficient agreement on change never exists and the existence of these procedures for  political led change is little understood, as is the very existence of the Council’s parliament.

What in practice we have with the Human Rights Court is a trans-European minarchist agency.  Minarchy means minimal state, and is taken to mean a state that only provides national defence, law courts, and police to bring people to courts of law.  The Human Rights Court fits with the second aspect.  It is not democratic, except in a very indirect and obscure way, and that fits well with minarchist thought which from Wilhelm von Humboldt’s Limits of State Action (1792) to Robert Nozick’s Anarchy, State and Utopia (1974) has looked at democracy with some scepticism, preferring an agency which is not appointed in a representative way to uphold and enforce laws, and keep the state within its narrow limits.  That minarchism is part of  free market libertarian approach which has had some influence on the British right, though not as much as on the American right.  Anyway, why the horror on the right (and from most American libertarians) with not very democratic minarchy in Europe then?  Part of the answer is that libertarianism is a much smaller influence on the right than rhetoric sometimes suggests.  Libertarianism is a source of convenient policies and language for when the right finds it convenient to reduce the role of the state in some way, which is never anything like that favoured by libertarians, and certainly falls a long way short of a minarchist project.  It also suits some on the left on believe that such a project is in progress.  The American libertarian reaction has a distinct undertone of sneering at Europe, and fear of a stronger Europe in the world system.  No one ever says this directly, but the need to look down on Europeans and treat a unified Europe as a threat is present as a constant undertone.

The British right does not favour democracy for the EU or the Council of Europe, it favours their weakening and abolition, with British withdrawal if major weakening is not possible.  Behind all the hypocrisies, frequently expressed in very obsessive ranting on the issue, for some reason Eurosceptism attracts aggressive obsessive ranting personality types in Britain, there is a genuine point which is that most Europeans are not much concerned with the affairs of other European countries, or what goes on in European institutions.  That deserves another post, for the moment I just want to sketch out some peculiarities.

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