As the armoured-plated cars crunched to a stop in the gravel, Keir Starmer, our newly elected Prime Minister, stepped into the July sunshine. One by one, he greeted the arriving leaders of 45 European nations, members of the European Political Community (EPC), who had come to the baroque splendour of Blenheim Palace to confer.
Before taking office, senior Labour people used to declare that “since Brexit”, Britain had become a “laughing stock” or “largely irrelevant” around the world. That was never so, but Britain’s continental neighbours were worried. Did leaving the European Union mean permanent political chaos? Did it mean isolation? Although intended to reassure, “Global Britain” was interpreted as grandiose imperialist nostalgia.
At the same time, Europe’s patchwork of institutions continues to be derided at Westminster. But with the UK outside the EU, in an unstable world, are some of these unappreciated bodies now vital to our – and Europe’s – survival?
Russia’s invasion of Ukraine in 2022 provided some answers. British support for Ukraine was quick and decisive. As Jason Cowley has put it in this magazine, “On Ukraine, Britain, outside the EU and, therefore, more nimble in its response to foreign policy, has not been an onlooker but a European leader.”
In response to Russian aggression, the French president, Emmanuel Macron, proposed the EPC, a gathering of European leaders beyond the EU’s 27 to discuss Ukraine and other issues of common concern. Britain, sensibly, embraced the idea and offered to host.
In July, the fourth EPC meeting was welcomed to Oxfordshire’s Blenheim Palace, where Winston Churchill was (unexpectedly) born, and loved to spend time. The symbolism was noted. In front of a throng of international broadcasters, the leaders paid tribute to Churchill. A month after commemorating the D-Day landings, it was easy to recall the man whose steadfast leadership helped to save Europe. Less well remembered is the role Churchill – and Britain – played in rebuilding Europe after the war.
Then, much of the continent lay in ruins. Britain was exhausted and near bankrupt. Churchill himself had lost office. Yet he outlined a vision for European unity that would rebuild the “European family”. His oratory and work helped create the Council of Europe, which was intended to banish tyranny and war. It was the first institution to welcome a vanquished, demoralised Germany. Countries behind the “Iron Curtain” were mourned, but not forgotten.
In May 1949, 75 years ago, the treaty establishing the Council of Europe was signed in London by ten European nations. To underline Britain’s pivotal role, the Treaty of London was brought to Blenheim from the National Archives and put on display for the leaders.
It is easy to overlook the Council of Europe – or mix it up with the European Union. Especially since the EU appropriated the Council of Europe’s flag – a circle of gold stars on a blue background – and its anthem, Beethoven’s “Ode to Joy”. (Officially, the Council of Europe takes this in its stride: “We work for the same goals,” I was told, “and share the same values.” But it’s hard to believe it doesn’t rankle.) The resulting confusion is unfortunate, though, because the difference between the institutions matters.
What is now the European Union – of 27 states – was established in the 1950s, without Britain, as a predominantly economic community with federal ambitions. Membership involves a significant transfer of national sovereignty to supranational institutions. Rulings of the EU’s court in Luxembourg automatically supersede national laws.
The older Council of Europe has a narrower focus: on human rights, democracy and the rule of law. After the invasion of Ukraine, Russia and Belarus were expelled, leaving 46 members. These sovereign states come together to agree minimum standards on issues such as violence against women and girls, trafficking and AI. The jewel in the crown of the Council of Europe is the European Convention on Human Rights (ECHR) and the court in Strasbourg is tasked to apply it.
One hundred European parliamentarians were involved in drafting the convention in the 1940s, led by the Conservative MP and lawyer David Maxwell-Fyfe. It’s a mechanism designed to protect individual social and political rights, and has been emulated worldwide.
Today, Britons mostly hear about the convention when a Conservative minister berates it. This is a reflex honed for more than a decade and generally deployed in the context of immigration. As home secretary, Theresa May told the Conservative Party conference in 2011 that convention folly allowed a man to avoid deportation because he had a pet cat: a wildly inaccurate summary of a judgement by the court. Now the convention is wrongly blamed for the demise of the previous government’s policy to relocate asylum seekers who arrived in the UK on small boats to Rwanda.
The Rwanda asylum policy was announced in April 2022 and by May a group of 47 individuals had been informed of their intended removal in June. They applied for judicial review and interim orders preventing removal until their claims had been heard. Interim orders were refused by the domestic courts in the UK but granted in three cases by the Court of Human Rights in Strasbourg.
In December 2022, the High Court in London ruled on the claims. The Rwanda policy was lawful but decisions made in individual cases were not. They were “procedurally flawed” – in other words, they were unfair and a shambles. In some cases, the Home Office had mixed up the files or plainly relevant information wasn’t considered. All the decisions were quashed.
The following year, the court of appeal went further and ruled the Rwanda policy unlawful. It considered evidence from the United Nations Refugee Agency about weaknesses in the Rwandan asylum system to be compelling. The UK had been privy to much of this evidence but chose not to ask questions. The result was a real risk that asylum seekers processed in Rwanda would be returned to the state from which they were fleeing, violating the non-refoulement principle of refugee law.
The UK’s Supreme Court agreed. It underlined in its judgement that this outcome was not dictated by the convention alone. Non-refoulement is an established principle of international law, present in numerous treaties ratified by the UK and in acts of parliament.
A government intent on pursuing the policy but respectful of the rule of law would have worked with the Rwandan authorities to embed their newly created asylum system and begun flights once the system’s shortcomings had been properly remedied. Blaming the convention and threatening to leave, as a number of Tories continue to do, feigns action while undermining the rule of law and leaving the immigration “problem” unaddressed.
Some critics objected to the Strasbourg court’s use of interim measures, despite how its assessment was vindicated by domestic courts’ later rulings. The same critics were notably silent about interim measures notified to Russia in June 2022 to save the lives of two UK nationals, sentenced to death by a court in the so-called People’s Republic of Donetsk. Shaun Pinner and Aiden Aslin lived with their Ukrainian partners and joined Ukraine’s armed forces in 2018. They were captured after the fall of Mariupol, paraded on Russian media and faced execution. Three months after the European court’s intervention, they were returned to the UK in a prisoner swap.
At Blenheim Palace, the former human rights lawyer Starmer spoke about his personal attachment to the convention and stressed, more than once, his government’s commitment to honour it.
Two months after Blenheim, I visited Strasbourg, where I met British lawyers and staff at the Council of Europe. It is clear the PM’s words came as a relief. The previous years, I was told, had been “frustrating”. Since 2000 when the Human Rights Act required public bodies to apply the convention, fewer and fewer human rights complaints have come to Strasbourg from the UK. Decisions of public bodies in the UK are closely scrutinised and judgements from its courts are detailed and reasoned. This means that, often, judges in Strasbourg don’t see the need to intervene.
In 2023, only three cases from the UK were considered admissible and a single violation found. France had 12 violations, Poland 31 and Italy 48. The number for Turkey was 72 and Russia 216. This makes Britain a top performer, it is said. Yet there is still talk in conservative circles of leaving. Robert Jenrick has recently taken May’s lead, misrepresenting the convention as something detrimental to our national interest.
Located in Alsace, just inside the French border with Germany, Strasbourg was for centuries the totemic object of Franco-German enmity. Now the border is settled and the city a symbol of reconciliation. With its gothic cathedral, canals and cobbled streets, it retains an imperial charm.
Despite the pelting rain, this plainly isn’t Britain, but there is such a pronounced British influence that I question why the Strasbourg court is derided for being “foreign”. Granted, the court building is metal and glass. No judges or lawyers wear wigs. But leaving aside these obvious differences, in many ways the court operates like a common law court. It interprets a relatively light body of written text through reasoned decisions. Unlike judgements from the EU’s court in Luxembourg, Strasbourg judgements often include dissenting opinions. Tim Eicke KC, the UK’s judge on the court, is effective and well respected. He is not a serial dissenter, so when he disagrees with the majority, as he did after a recent ruling against Switzerland for failing to protect its citizens from climate change, his views carry weight (in this case he argued that the court had “unnecessarily expanded the concept of ‘victim status’” in the ECHR).
Near the court, in the Council of Europe’s main building, a copy extract from the Magna Carta is on display. A bust of Winston Churchill is also placed here. On the Council of Europe’s 70th anniversary in 2019, posters celebrating “L’Europe en fête” featured a rainbow, gold stars, Strasbourg Cathedral and Churchill. In Strasbourg, they celebrate a role most in the UK no longer cherish.
On that day in July, after the leaders left Blenheim Palace and support staff relaxed, I was allowed a peek at the 1949 Treaty of London. Passing bins and barriers being loaded onto trucks, I enthused about the decision to showcase the treaty and the virtue of having a lawyer in charge. “These things take time to arrange,” I was told by my escort, “and they are rarely the work of one person.” In other words, it wasn’t all down to Starmer. Of course not. In reality, whichever party is in government, promoting democracy, human rights and the rule of law remains a core pillar of UK foreign policy.
As instability spreads across Europe, with unease about war, the rise of extremism, economic decline, migration and the unreliability of the US – experiencing what is potentially its most divisive election in decades – as an ally, this is not the time to water down our commitment to the Council of Europe or turn away from our continental partners.
Much is in flux. Whatever the outcome of the US presidential election, Europe will be expected to shoulder a greater burden for its own defence. US trade policy will continue – but may intensify – its protectionist lurch. Its unpredictable politics challenges Europe at a time when political leadership on the continent is weak. President Macron advocates European “strategic autonomy”, but his authority has ebbed away before the concept has taken shape. The EU intends to enlarge itself, but to do so will call for major institutional reform. Its diplomatic and foreign policy arm, the European External Action Service, struggles to contain the disparate interests of its member states. The UK remains a key player in Nato, but wider security and defence cooperation is plainly to the benefit of the UK, the EU and larger Europe.
The UK’s wider relationship with the EU will evolve. Labour has promised a “reset” but this will take time. Each side, armed with a set of policy objectives, will negotiate hard. On both sides of the Channel, politicians will posture, the press will report division and crisis, and ultimately a deal will emerge.
But something bolder is needed to take us beyond the disputes of the past. The UK is outside the EU, but we remain allies and friends. As part of larger Europe, there is a role for the UK in building coalitions, coordinating with allies, conducting diplomacy under the radar: independent, pragmatic and engaged.
Bilateral relationships matter and nurturing these means turning up. On 2 October, Starmer met the president of the European Commission, Ursula von der Leyen, in Brussels. The following day, David Lammy became the first foreign secretary to visit Dublin since 2017. But multilateral engagement also has an indispensable role, allowing the UK to work with and influence a wider group which welcomes its input. There are different ways to be a good European. Outside the EU, the EPC and the Council of Europe enable this, and deserve our support.
As Churchill declared, in French, to galvanise support for the Council of Europe before a crowd in Strasbourg: “Les dangers qui nous menacent sont grands, mais grande aussi est notre force.” (“The dangers threatening us are great but great too is our strength.”) This is a time for the United Kingdom to rebuild alliances and support institutions we helped to create.
[See also: The implosion of centrism has left Labour in unmapped territory]
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This article appears in the 30 Oct 2024 issue of the New Statesman, American Horror Story