Why the ECHR and its tone-deaf Strasbourg court need reining in

There is a delicious irony that one of the principal midwives of the European Convention of Human Rights (ECHR), Sir David Maxwell Fyfe, was profoundly conservative, and later one of the most reactionary post-war Home Secretaries, leading opposition to the Wolfenden Inquiry’s proposal to decriminalise gay sex between consenting adults. Yet he played a central role in the fledgling Council of Europe, serving as rapporteur of the committee that drafted what became the ECHR, which came into force in 1953.

The apparent contradiction in Fyfe’s positions is less striking than it seems. The Convention was designed as a restatement of core liberties the British believed they already enjoyed, albeit uncodified and inchoate. Few on the left or right would quarrel with the Convention’s actual text. For many continental states, emerging from tyranny and occupation, its articles became a template for modern statements of rights. But the UK resisted incorporation for decades on a bipartisan basis. The argument was simple: we already had these rights, incorporation would be an unnecessary, continental import.

In early 1987, a courageous Conservative MP, Sir Edward Gardner QC, who had been my head of chambers at the Bar, introduced a Private Member’s Bill to incorporate the Convention into domestic law. It died immediately, opposed by both front benches.

It took the late John Smith and then Tony Blair to commit Labour to incorporation, and it fell to me, as Home Secretary, to work out how to do it. The result was the Human Rights Act 1998 (HRA). Fortunately, it passed with cross-party consensus. Although the Conservatives opposed it at Second Reading, amendments addressing concerns of the opposition, churches and media ensured it passed its Third Reading unopposed. As the Conservative spokesman Sir Nicholas Lyell told the Commons: “We now wish [the Bill] well.”

In the 25 years since, the British courts have used the HRA effectively and judiciously. The problem troubling politicians today does not arise from the HRA or the text of the Convention, but from the European Court of Human Rights in Strasbourg, tasked with applying the Convention across 46 member states.

From the late 1970s, the Strasbourg Court began asserting an expansive, activist interpretation of the Convention, advancing the idea – found nowhere in the Convention’s text – that it is a “living instrument” which “must be interpreted in the light of present-day conditions.” That is acceptable up to a point, but Strasbourg has gone far beyond the traditional principles of treaty interpretation in the 1969 Vienna Convention, which emphasises context, purpose and non-interference in states’ domestic affairs.

Supporters note that by ratifying the Convention, states accepted that the Court could interfere in domestic matters. The outgoing British judge, Tim Eicke KC, made a spirited case for the “living instrument” approach in a recent valedictory speech, claiming the Convention had stepped in repeatedly when domestic courts failed to provide protections now taken for granted. He cited the abolition of birching, the thalidomide scandal, lifting the ban on gay personnel in the armed forces, and reopening the Hillsborough inquiry.

But his list is overstated. Corporal punishment (including birching) was abolished in Great Britain in 1948 and in Northern Ireland in 1968; neither was triggered by Strasbourg. The judgment Eicke referred to concerned only the Isle of Man. The Court did prompt change regarding gay personnel in the forces. It did “help” thalidomide victims by lifting an injunction against the Sunday Times while litigation was pending, but few historians would credit Strasbourg as the main force behind the final settlement. As for Hillsborough, the reopening of the inquiry resulted from relentless campaigning on Merseyside and by MPs, including Andy Burnham. Wikipedia’s extensive pages on Hillsborough do not mention Strasbourg once.

Strong supporters of Strasbourg sometimes appear to inhabit an alternative historical universe, assuming only their court stands between liberty and tyranny. That conceit has allowed the Court to sideline democratic will, undermining consent for its authority. The better view was articulated in the 1940s by US judge Learned Hand: “Liberty lies in the hearts of men and women; when it dies there, no court, no law, no constitution can do much to help.”

The worst example of Strasbourg overreach was its 2005 decision in Hirst versus The United Kingdom, when prisoner John Hirst challenged the UK’s longstanding rule that all convicted prisoners are banned from voting while in prison. The Strasbourg court held that the UK’s ban on prisoners voting was unlawful. The judgment was factually inaccurate, its reasoning weak, and it ignored the fact that such issues lay far from those that inspired the Convention. Public and Parliament alike would never tolerate such gratuitous interference in domestic politics, and it took nine years of effort to persuade the judges to retreat.

But it is on immigration and asylum that the Court has been most tone-deaf. Modern unlawful migration is a huge challenge for democracies across Europe, including the UK, yet Strasbourg presses on regardless. Mr Eicke noted that of 29 recent UK cases concerning removal of foreign nationals, sixteen were found to involve “no breach of the law” and could proceed. But what of the remaining thirteen? Why, given the rigorous process within the UK judicial system, should Strasbourg intervene at all? Its willingness to entertain applications creates delays and disrupts the entire system.

In a normal domestic hierarchy, if a higher court makes a decision the public finds unacceptable, Parliament can amend the law. The objection to Strasbourg’s expansive “living instrument” approach is that no such timely override exists.

Where do we go from here?

It is possible to amend the Convention if enough member states agree. The recent initiative by Keir Starmer and Shabana Mahmood is welcomecoun. Last month, sixteen Council of Europe members – including France, Germany, Italy, Denmark and the UK – met to discuss reforms preventing asylum seekers, including those with criminal records, from using Strasbourg to delay deportation.

More states will need to join, and the process will take time. These changes are necessary. But for Strasbourg to regain consent, it must also change its mindset. Its justices do not seem fully aware of how fragile the Court’s legitimacy has become. They need to restrict their whole notion of the Convention being ‘living law’. That concept, as I mentioned above, was the Court’s own invention.

It’s good to see that the penny has dropped with the Secretary General of the Council of Europe, Alain Berset, who in a BBC interview [4 November] said that he was ready to see amendments to the Convention. But we now need to see those words translated into action.

However, I don’t propose that the UK should leave the Convention altogether.

I’d much rather see reform to the Convention and by the Court. Despite the excesses of the court in more recent times, the Convention itself has done much more good than harm, especially in the early decades after the war, when the articles had great moral force as continental countries sought to build their institutions with democratic norms.

There are also practical complications from leaving.

One is whether to do so would run foul of the UK’s obligations under the Good Friday agreements. Many distinguished jurists say it would not, but the argument about this would nonetheless be intense and diverting.

A second is that too much energy would be used up countering the (pretty thin) argument that the UK would be ‘left isolated’ and would be joining Russia and Belarus, as outlaws from the Court.

The survival of the Council of Europe and its court will depend primarily on the Court itself. If it continues to overreach, it will secure its own demise. Member states will ignore, or work round its decisions; fewer top-flight politicians will wish to be delegates to the Council of Europe, fewer top-flight jurists its judges. International institutions, and instruments are mortal. They have a life, then it’s over.

Meanwhile, the British government could act domestically. The purpose of the HRA was to “bring rights home” and empower British courts to adjudicate alleged violations. The Act has worked. It codifies cherished rights with the reassurance, especially to conservatives, that one of their own – Maxwell Fyfe – had approved the original Convention.

After 25 years’ experience, most of the Act has proved sound, particularly its balance between individual rights and parliamentary sovereignty. One area now needs amendment: section 2. Currently, it states that UK courts “must take into account” Strasbourg decisions. This meant exactly what it said. It did not require UK courts to “follow” Strasbourg; had Parliament intended that, it would have said so. Yet in the 2000s, the UK Supreme Court decided that “take account” effectively meant “mirror” Strasbourg.

That approach was dismantled by former Supreme Court President Baroness Hale, who noted that it contradicted the original White Paper and “does not make much sense.” She pointed out that ‘Strasbourg case law is not like [the English common law]’. Strasbourg, she said, has ‘no concepts of ratio decidendi [the legal reasoning behind a court’s decision], and stare decisis [the concept of binding precedent].

Although the Supreme Court has since retreated from strict mirroring, the position remains confused and continues to give excessive authority to Strasbourg. Section 2 should be amended to say that UK courts “may, or may not, take account of” Strasbourg. Other consequential changes would be needed to decouple British law from Strasbourg’s influence. Several European countries have long taken this approach.

The Convention which David Maxwell Fyfe and cautious legal experts drafted in the late 40s was never intended to become an exercise in supranational power. Those at Strasbourg who care about their future need to row back, and fast.