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How far, if at all, should we take into account the effects of our internal constitutional debates on those outside the boundaries of the state? I’ve been thinking about this after taking part in two particularly interesting conferences in the last couple of weeks (it is the conference season after all).
In the first, sponsored by Queen’s, Belfast and Oxford at Balliol College, I helped bring together British legal academics, members of the recently established Commission on Human Rights, and representatives of the Council of Europe and the European Court of Human Rights to consider issues raised by recent British debates on the Human Rights Act and the UK’s relationship with the Court.
The second, on ‘Sovereignty, Global Justice and the Ethics of War’ at the Institute for Advanced Studies in Jerusalem, seemed at first sight likely to focus on issues far removed from the issues we debated in Oxford. Intriguingly, however, they proved to have much in common.
In the Oxford conference, we were reminded that the debate over how the UK should react to the Court’s decisions on prisoner voting has potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states. It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records. It’s another thing entirely where the British debate is transmitted to barely democratic European states with a debateable human rights record, and a weak commitment to constitutionalism.
In the latter states, it was suggested, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimating their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody. Aren’t we, it was argued, under an obligation to take into account the adverse effects that the British debate may have elsewhere in Europe?
There is, of course, both an empirical as well as a normative issue in play here. For the purposes of this blog, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, we ought to take these into account.
It’s at this point that the discussions in Jerusalem are powerfully relevant, since they addressed directly the morality of ignoring what economists call ‘externalities’ in domestic constitutional decision-making. On what might we base an obligation to ‘internalise’ these externalities?
An obvious starting point is enlightened self-interest. Ensuring that Europe has stable constitutional democracies committed to the Rule of Law is clearly to the UK’s benefit. Authoritarian, human rights-violating states generate violence and instability beyond their borders, and are therefore a drain on our diplomatic and defence resources, quite apart from disrupting the opportunities for trade and investment.
The Council of Europe and the European Court of Human Rights have undoubtedly played a significant role in helping to ensure that fragile European states become more or less reliable members of the European public space. That is why the United States’ State Department has warned recently against undermining them, in its own foreign policy interests.
Is there an obligation irrespective of self-interest? Again, a source of such an obligation can be identified which is both obvious and powerful, but often overlooked: the United Kingdom is under (at least) a moral obligation to implement judgments of the Court of Human Rights because we have (at least) implicitly promised to do so when we joined the Convention system, and violating that promise is, at least prima facie, wrong. (It also threatens to undermine our expectation that others will consider themselves bound by their promises to us, of course.)
Apart from an obligation derived from self-interest and promising, where else might we locate a duty to others outside our borders? Perhaps the most useful insight from Jerusalem was that ‘membership’ may provide an important point of departure: two people belonging to the same ‘community’ have some duties to each other simply by virtue of that common membership. If they do, does that mean that we have an obligation to have regard to the effect of our actions on those other members of our community? Probably so.
Turning back to the British debate, what is the relevant community? Some might want to argue that the relevant community is the human community at the global level, but a less ambitious claim would be that, at the very least, we are all members of a European community (small ‘c’) and this generates mutual obligations to each other.
And therein lies the problem: do we in the United Kingdom consider we are members of a European community. I think we are, and that that we have an obligation, therefore, to take external effects on other Europeans into account. Unfortunately, some of those currently opposing the Court act as if they think that the relevant community stops at the Channel; taking the interests of others into account does not even appear to occur to them. Indeed, it seems clear that the motivation of some is partly driven by the desire to oppose the Court in order to demonstrate that they are not Europeans.
But not all. A significant proportion of current critics of the Convention and the Court will argue that they do indeed consider themselves Europeans, that they do take into account the external effects on other Europeans, but that their conception of the European community is significantly narrower than the membership of the Council of Europe. We may have obligations to France or Ireland, they may say, but not to Russia or the Ukraine. For them, accommodating the interests of the latter is part of the problem, and I am picking up a growing scepticism as to whether they should have been admitted in the first place.
So, an argument based on the perception of common membership would, for these critics, not extend to an obligation to take into account the effects on those outside their conception of the ‘real’ Europe. In that case, such an obligation will only be based on self-interest and promising, unless we can convince them of an obligations based simply on our common humanity.
I’ve been deliberately vague, so far, on precisely what a duty to pay due regard to externalities might actually involve. I’m not suggesting that the current British debate shouldn’t occur at all; this debate is legitimate and even desirable. Nor am I saying that our duties to (external) others are other than one consideration among others. But, at a minimum, it seems to me that those participating in that debate have a duty to appreciate who their potential external audience is, together with a duty to at least try to gauge the effect of their actions on that external audience. I’d even be prepared to argue, I think, that we are under an obligation to adopt constitutional policies which may be marginally sub-optimal domestically, if they will significantly enhance the well-being of others who are members of our (European) political community.
I’m less certain who, precisely, bears an obligation to internalise externalities. My starting point is politicians in Parliament, but what about authors of think-tank reports and former Supreme Court judges? Are they under such an obligation? More intriguing still, how far is there an obligation on current members the superior courts (particularly the Supreme Court) to be aware of external audiences, and adjust their judgments to take external adverse consequences into account? Does the era of transnational judicial dialogue bring with it judicial responsibilities as well as judicial opportunities?
So, in conclusion, I’m suggesting that the current UK debate is an important constitutional moment, involving critical issues of the extent of the obligations of various public actors to those outside the state, and our conception of what ‘Europe’ involves. What is somewhat depressing about the current ‘constitutional’ debate over human rights is not that it is taking place. No, the depressing aspect of the debates is how narrowly focussed they are, not least in appearing to ignore the effects of that debate on others outside the UK.
© Christopher McCrudden. Professor (elect) of Human Rights and Equality Law, Queen’s University, Belfast, and William W. Cook Global Professor of Law, University of Michigan Law School. With grateful thanks to Adam Tomkins and Nick Barber.