PROPOSITIONS:Why we must bark back at this beast

Britain must assert itself against the European Court of Human Rights, argues Bruce Anderson

The moment has almost arrived when the British government will have to choose between continued membership of the European Convention on Human Rights (ECHR) and the integrity of our legal and political system. The community charge was enacted by P arliament, just like income tax. Liability to pay it was as absolute; the penalties for failure, ditto. But it now seems the European Court of Human Rights, which interprets the convention, may rule otherwise. The issue would then become not just the tax system, but national sovereignty.

In the immediate post-war years, Britain helped to establish the ECHR, and the decision to join was one of the first actions of Churchill's 1951 government. The advantages then seemed obvious. To rebuild the defences of civilisation against barbarism, Europe required a spiritual and intellectual renewal. Part of that process was a reassertion of the principles of law. At that time, it would have seemed absurd to suggest that Britain would ever find itself on the wrong end of the new court's rulings. We had virtually invented human rights and the rule of law, and - unlike most of the rest of Europe - had practised them for centuries. So we did not join to be instructed, but to instruct; to give foreigners, whose legal systems had been shattered and perverted, the guidance of our example.

The years passed and the court began to extend its powers. It also became politicised, gradually ceasing to be a high-minded body and becoming more of a high-falutin' pretext for political activism.

But its first major irruption into British life was welcomed by Conservatives. Some railwaymen had been sacked for defying a closed shop. They took their case to the court, won, and received compensation. Labour was embarrassed, while the Tories applauded. They were wrong to do so. A hard case had set a bad precedent.

One of the first actions of the 1979 Tory government made it impossible for workers to be treated as those railwaymen had. That was the right way to proceed. There was no need to call in an alien jurisdiction; we could rectify our own abuses by our own laws made in our own legislature.

The court then, in effect, banned the use of corporal punishment in state schools. The ECHR article under which it did so condemned inhuman and degrading treatment. Its framers would never have thought that a text drafted in the shadow of Belsen and Dachau could be so belittled as to be applied to the treatment of naughty schoolboys. That case alone was sufficient reason for Britain to repudiate the court. There is a superficially plausible counter-argument: the nations of Eastern Europe are emerging from darkness. In most cases, they have no tradition of the rule of law; in all cases, no recent experience. They ought to seek the help of the ECHR to validate their new legal codes. But if Britain withdrew, this might discourage them from joining. So even if our membership is at times irksome, it is a small price for us to pay for large benefits to Eastern Europe.

This assumes, however, that Eastern Europeans are insufficiently grown-up to understand the difference between their position and ours. That is nonsense. Most of them realise that, in terms of institutional development, they are still crippled. We do nothave to pretend to be lame in order to help them.

Fortunately, it is much easier to rebuff challenges to sovereignty from the ECHR than those from the EU (the two bodies are entirely distinct). In this case, there are no treaties to renegotiate. A simple assertion of national will would suffice.

Bruce Anderson is the political columnist of the `Sunday Express'.