Saturday, 7 November 2009

Italian Crucifix Case - Part 2 - Europes Dredd Scott ?

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to implement the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc.

Article 46 of the Convention says
Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

If the Judgment is not overturned on Appeal then Italy has to report to the Council of Ministers of the Council of Europe what it is doing to implement the judgment, it cannot simply ignore it unless it withdraws from the Council of Europe and the Convention itself, in addition since the Charter of Rights in the new EU Constitution/Lisbon Treaty in effect incorporates European Convention on Human Rights into EU Law, Italy would have to withdraw from the EU if it wanted to ignore the ruling and I cannot see it doing that. Therefore unless the Grand Chamber of the ECHR overrules this Judgment on appeal Italy, and indeed the rest of Europe, has a serious problem; for example in Greek and Cypriot Schools it is common to see Icons displayed, but under this judgment those Icons will have to be removed and, arguably so will displays of Christianity from all Public buildings throughout Europe.

In the UK because of s2 of the Human Rights Act the ruling has immediate effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling. Judgments such as this tend to have a large degree of "mission creep" as they are implemented by public authorities.

However I do wonder if perhaps this Judgment may, in time, come to be seen as European "Dredd Scott" case ie a moment when the implications of a Court ruling are so significant and so contrary to public opinion that they lead to a public backlash. Americans will, be familiar with the 1857 Dredd Scott case when the US Supreme Court defended slavery to such an extent that, in effect, it extended slavery to the free as well as the slave states and that ultimately strengthened the abolitionist movement and is often quoted as a leading cause of the American Civil War. I often refer to the Dredd Scott case when arguing with my more "liberal" legal colleagues who simplistically believe that Supreme Courts are always filled with nice liberal types who will uniformly do the right thing. They are not, Judges are as prone to personal prejudices as anyone else which is the danger of trying to use the Courts to force change in society rather than relying on the slower processes of democracy, voting and debate.

If I can misquote Abraham Lincoln
"We shall lie down pleasantly dreaming that the people of Europe are on the verge of becoming a multi-faith society, and we shall awake to the reality instead, that the European Court has made Europe a non-faith society"

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