Can there be a Christian ‘position’ on this vexed question? Peter Sammons considers.
The Case for leaving the ECHR (1)
This is a multi-faceted question, normally resolved in people’s minds by their personal political persuasion (and little else!). The ECHR is an international convention*, purportedly to protect ‘human rights’ and ‘political freedoms’ in Europe. Drafted in 1950 by the then newly formed Council of Europe, it was created in the aftermath or WW2 in the face of strong and recent memories of Nazism, plus the ever present realities of Stalinist Russia (which trampled normative human rights). All Council of Europe member states are party to the convention. New members are expected to ratify the convention at the earliest opportunity.
[[ * As a convention, it is not a part of any State. Accordingly its right to operate is solely on the basis that States sign-up to ‘membership’, and this becomes a treaty obligation. In principle States can leave the convention, by secession on 6 months notice ]].
The convention established the European Court of Human Rights (generally referred to as the ECHR). Theoretically, any person who feels their rights have been violated under the convention by a State party can take a case to the court. Judgments finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payments awarded by the court are paid to applicants.
The ECHR gives some reality to the concept of international law, at least in a European context. Whether there is such a thing as international law again boils down to a person’s personal political preferences. Left wing generally approves the vacuous concept. Right wing is generally less enamoured of the concept.
In recent years courts in the Western World have increasingly reflected (and in turn, promoted) a broadly ‘progressive’ social agenda. Human ‘rights’ are maximised in the West, but are nowhere balanced by human responsibilities. Lawyers have created a veritable blizzard of legislation and test cases, that prove to be lucrative for lawyers, and sometimes vexatious to the operation of government.
Nothing to do with legal or illegal migrants
Any case for leaving the ECHR cannot be predicated on a single social issue, no matter how pressing. The question for British citizens (or should that be British subjects?) is, what does sovereignty mean in reality, and is the ECHR in some esoteric sense, or some moral sense, a ‘better’ court than the UK High Court (and if so, why?). To some the ECHR is perceived as delivering more ‘progressive’ laws than national courts and is, in that sense, morally ‘superior’ as it reflects their own world view and social ambitions. Yet many people will posit, in reply, that no one elects a lawyer or a judge! Are ‘judges’ morphing into political actors? Are judges becoming back-door politicians? Are judges somehow morally superior to others? This is a subject that truly matters.
If the UK leaves the ECHR what will replace it? In reality Britain will likely revert broadly to the position prior to accession to the ECHR, specifically the High Court will lead in the interpretation of British law, and on a common law** basis. In addition, and a much more recent development, Britain now has a Supreme Court (created by the highly ‘progressive’ Tony Blair administration) which replaced the old Law Lords. The Supreme Court is now the final court of appeal for all British civil cases, and criminal cases from England, Wales and Northern Ireland. It hears appeals on arguable points of law and concentrates on cases of the greatest public and constitutional importance. Arguably it might in future become Britain’s own ‘ECHR’!
[[ ** It is sometimes forgotten that Britain, and approximately 1/3 of the world’s population , live in a common law jurisdiction. European Union members, plus most other non EU European countries, exist under civil law systems (alternately known as Roman law systems). These Roman systems tend to invest more power (and enable more capriciousness?) in their senior judiciary. It is arguable that Britain has sleep-walked into the progressive amendment of its common law system in favour of a Roman law system, largely as a result of its memberships of the EEC>EC>EU. This progressive development was a subject never discussed openly. ]]
Since inception Britain’s Supreme Court has acted along the lines of the ECHR and generally opposes UK Governments. In this sense it has sought to overturn what might be considered popular causes, such as the Brexit referendum result, and more recently the Rwanda processing of economic migrants. Arguably, the very term ‘supreme’ is a huge temptation to senior judges to perceive themselves as supreme over the legislature. We repeat, this matters, hugely. Arguably it is bringing the judiciary into disrepute and reducing public trust in the judicial process. In regards to the Rwanda processing question one wit recently quipped “for the UK Supreme Court, unsafe countries start at France!”
The Case for leaving the ECHR (2)
This is a useful general discussion on the technicalities, as well as the broader political arguments: https://unherd.com/2023/08/the-case-for-leaving-the-echr/
Israel. Recent experience
In Israel during the summer of 2023, Israel’s Supreme Court resisted overhaul of its powers. This led to street demonstrations, and in turn there was serious concern as to whether Israel was on the brink of civil war. This arguably encouraged the ambition for Hamas to attack a weakened Israel, where certain key IDF commanders were stating openly they would not serve to defend the Israel Government. During 2023 Israel Government attention was solely focused on this governance and judicial question, arguably to the detriment of security questions and intelligence. What happened in Israel was arguably a microcosm of what is presently happening across the Western work where activist judiciaries are increasingly impinging on the work of elected governments and opposing those same elected governments. When did you last elect a judge?!
A discussion on Israel’s recent problems: https://www.vox.com/world-politics/23864407/israel-judicial-overhaul-supreme-court-hearing-netanyahu
If the actions by the activist judiciary in Israel genuinely encouraged [to any extent ] the October 07 Hamas attack, and all that flows from it, might we be facing World War Three (potentially) on the back of an activist progressive judiciary, and its attempts to undermine an elected government? This is a truly high price to pay for a non-elected judiciary constantly opposing an elected government , throwing up daily and profound legal challenges to the ordinary business of government. We repeat, this matters! And it matters hugely ……….
Arguably proportional representation electoral systems tend to create fractured political consensus (everyone has their proverbial finger in the governance pie), leading to situations where judiciary feel emboldened to seize the balance of power and to ‘adjudicate’ (!) between conflicting claims. In theory, first past the post electoral systems are more likely to avoid this perpetual systemic problem of governance.
A Christian position on leaving the ECHR
It is a fact that there is no agreed Christian ‘position’ on the ECHR, as there is indeed no agreed position on so many other issues. Much of the UK’s institutional ‘church’ today perceives itself not as being Christ’s representative on Earth but, in practical terms, to be a religious extension to the Welfare State. This is the so-called social gospel approach to Christian witness. That’s a huge subject so we shall make no further comment here.
Biblically, we can observe that God is invested in Nation-states, but that does not mean that He always approves of them or what they do. God is especially invested in His Chosen People Israel. Nations come and nations go; God ultimately is behind the so-called ‘march of history’. Lines may be drawn on maps by politicians, but may not necessarily equate to ‘nations’ in the commonest understanding of that word. Yet we are right to assume that even so, God still ‘recognizes’ them at some level. Thus the ‘nations’ that emerged from the fist world war (e.g. Czechoslovakia) have God’s protection and will find His blessing insofar as they seek Him.
Hosea 8:5 arguably tells us that not all Nation-states are set up by God’s will and purpose, albeit a thorough insight into Hosea’s purpose in this prophecy is absolutely necessary to understand it fully. Ultimately, God is not interested in (nor fixated upon, as are we) nations and national designs: Isaiah 40:17 and 23-24 make for sober reading. Psalm 33: 10-12 reminds us of much the same: “The Lord foils the plans of the nations; he thwarts the purposes of the peoples. But the plans of the Lord stand firm forever, the purposes of his heart through all generations. Blessed is the nation whose God is the Lord, the people he chose for his inheritance”. Surely this is still true today. There is only one nation in which God has shown a permanent interest …………….. Israel!
Despite these caveats, it is clear that God does indeed use Nations to advance His purposes. In that sense Nations have an obligation to perceive themselves as part of God’s over-arching design for the present era of Mankind. Given that Britain is a Nation, to what extent may we ‘outsource’ our governance to foreign jurisdictions? That is a huge question that defies simple, or simplistic, answers. For any who want to investigate this more deeply, this short-ish essay may be helpful: https://providencemag.com/2019/05/does-god-want-nations-exist/ .
No biblical case for membership
What we can say without fear of serious contradiction is that there is no biblical ‘case’ for membership of the ECHR. Intra-national governance does not appear to be a part of God’s ongoing plans, rather the reverse! The ECHR is not a ‘Christian’ organization, nor does it seek God’s face in its deliberations. Potentially the opposite! Whilst The Kingdom (God’s Kingdom) is not a democracy, nevertheless most Christians would agree that democracy represents – probably – the optimum expression of government short of Christ’s millennial rule, which many of us believe represents God’s penultimate plan for this World. The ECHR, like the European Union, suffers a democratic deficit at its core. No one has the opportunity to elect a judge! And the EU Council of Ministers is unelected. Unelected, and arguably unaccountable.
Whilst there are dangers in hyper-democracy [ rule through a Christ-rejecting electorate, must ultimately deliver bad government, just as rule through a Christ-rejecting autocracy must also be a bad form of government (arguably worse!)].
From a Christian perspective, then, the case for leaving the ECHR is that it undermines national Sovereignty granted by God, seeks to oppose elected governments beyond the ECHR’s legitimate role (ultra vires), and profoundly undermines democracy, leaving the electorate under represented, and even unrepresented, as judges increasingly promote so-called ‘progressive’ causes. Civil disturbance in Israel may eventually be matched by equivalent disturbances in other Western countries, and even usher-in reactionary governments. There needs to be a major adjustment between legislature and judiciary. The ‘balance of power’ is now well out of kilter. Our judiciary risks undermining the democratic process. Leaving the ECHR may now be the lesser of two evils for Britain.
For kingship belongs to the Lord. He rules over the nations.
Biblical teaching to contemplate:
Jesus said, “give to Caesar what belongs to Caesar. And give to God what belongs to God.” His reply completely amazed them. (NLT).
Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad.
Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. Therefore one must be in subjection, not only to avoid God’s wrath but also for the sake of conscience. …
Be subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to governors as sent by him to punish those who do evil and to praise those who do good. For this is the will of God, that by doing good you should put to silence the ignorance of foolish people. Live as people who are free, not using your freedom as a cover-up for evil, but living as servants of God. Honour everyone. Love the brotherhood. Fear God. Honour the emperor.
Remind them to be submissive to rulers and authorities, to be obedient, to be ready for every good work,