In defence of the European Court of Human Rights

Whilst it may seem a little ridiculous to be discussing the Council of Europe and its European Court of Human Rights at this important moment in political history, after tomorrow’s referendum on Britain’s EU membership, regardless of the result, it is likely that attention will turn to what to do about the ‘other’ Europe. The Rt Hon Theresa May MP, the Home Secretary, and Boris Johnson MP have already, as part of their referendum campaigns, taken a position on each, highlighting the disagreement which currently reigns.

In late April 2016, Theresa May advocated remaining within the European Union (EU) whilst leaving the European Convention on Human Rights (ECHR). A month later, Boris Johnson urged voters to leave the EU but remain within the ECHR system telling his audience that “we wrote it” and that he was a “supporter of it”. Whilst Secretary of State for Justice, The Rt Hon Michael Gove MP, has promised that there are actually no immediate plans to leave the ECHR, it would seem that the issue is still very much on the agenda. The purpose of this blog post is to explain the importance of the European Court of Human Rights (ECtHR), a key part of the ECHR system of protection, to the United Kingdom (UK).

What are we trying to achieve?

Preparing her case against the ECHR, in her speech Theresa May set out her “clear principles” for Britain’s membership of international institutions:

“Does it make us more influential beyond our own shores? Does it make us more secure? Does it make us more prosperous? Can we control or influence the direction of the organisation in question? To what extent does membership bind the hands of Parliament?”

Missing from this list is anything to do with justice, the rule of law, morality or protecting individuals from the power of the State. It might not have a monetary value, but the oversight of an international human rights court can do much to make us a more compassionate and moral nation, setting the standard for many other countries around the world. Most importantly, the ECtHR can also help us to achieve an objective our sovereign Parliament has already agreed – the protection of human rights through law, an objective supported by the Conservative Party.

In the October 2014 proposals, Protecting Human Rights in the UK, it is stated that protecting fundamental human rights through law is a “hallmark of democratic society” and “central to the values of the Conservative Party”. The ECtHR has now been helping the UK to protect human rights through law for more than 50 years. Broadly, its contribution protects individuals, makes us a part of the global conversation on human rights and ensures our society develops in a way respectful of human rights. These different types of value are examined in more detail below.

Importance for individuals

The ECtHR employs an individual justice model and this means exactly what it says on the tin. Once remedies at the national level are exhausted, individuals can complain directly to the ECtHR that the State has breached their human rights. Although this prospect may be very far from the minds of most of the people of the UK, it is an option which is available and is something you can determine for yourself without relying on government or other public bodies to do it on your behalf. In 2015, the ECtHR allocated 575 applications against the UK to its judges to consider. In that same year, the ECtHR delivered 13 judgments concerning the UK and in four judgments found at least one violation of the ECHR. Whilst these figures are miniscule in comparison to those for countries like Russia, Turkey or Ukraine, it is not correct to say that individuals from the UK are not interested in complaining or no longer have valid complaints.

Whilst it is often thought that the Human Rights Act 1998 (HRA) now affords remedies for breaches of human rights for everyone, this is not actually the case. For example, the numerous complaints brought by families concerned to find out what really happened to their loved ones during The Troubles in Northern Ireland are not actually possible to bring under the HRA as the events occurred before the HRA came into force in 2000. Furthermore, an application to the ECtHR allows those marginalised, and possibly even excluded from the mainstream, an opportunity to have their human rights claim considered by a specialist court, independent of national political pressures and at minimal cost. Feelings of justice and acceptance of the decision are enhanced, regardless of the outcome. This opportunity provided by our membership is something to be proud of, and not dismissed as an inconvenient, and sometimes embarrassing exposé on the world stage.

Importance at the global level

Researchers routinely report that the work of the ECtHR has a global reach and a positive impact on the practice of all nations, not just those of the 47 Contracting States. The work of the ECtHR can help to highlight problems which have arisen in a country which could escalate into conflict which may have widespread repercussions. The ECtHR helps to set minimum standards across Europe meaning that the UK has a much better chance of dealing with like-minded states with the ECtHR providing an external and neutral reference point, rather than the alternative of national guarantees or national perspectives which may be influenced by bias.

Critics have observed that the ECtHR’s global influence can carry on without the UK, but this is not entirely true. There is a danger that were the UK to leave the system, it would be considerably weakened as a result. It has been reported that Azerbaijan’s President Ilham Aliyev is awaiting the details of the British Bill of Rights with interest, as no doubt is Russia’s President Vladimir Putin. The UK would also find it difficult to persuade other States to abide by international human rights norms were it not willing to do so itself.

But the greatest sacrifice for the UK would be losing its ability to shape the global human rights standards formulated by the ECtHR. Over the past ten years there have been numerous examples of UK courts, and UK lawyers arguing before the ECtHR, shaping the Court’s jurisprudence. For example, under the HRA the House of Lords decided in 2005 that it was compatible with Article 3 of the ECHR to return the claimant, who was HIV positive with an AIDS defining illness, to Uganda. It held that the question which must be asked in such claims is whether the present state of the claimant’s health is such that, on humanitarian grounds, he or she ought not to be expelled. In its judgment in N v UK (2008) the ECtHR adopted the same test, utilising almost the same wording, and has continued to apply this test in a number of subsequent judgments. Further examples of the influence of UK courts include: Austin v UK (2012); McDonald v UK (2014); and Jones v UK (2014).

National importance

By far the most important role of the ECtHR in the UK is its impact at the national level. Here it operates in two distinct ways: first, in a static way as a safety net, protecting people against State acts incompatible with the ECHR; and second, in a dynamic way where a judgment of the Court might prompt improvements to comply with the ECHR or entirely new laws, policies or practices in a particular area.

No government, or legislature, is above the temptation to violate ECHR rights, but the mere existence of the ECtHR can provide a strong disincentive. A recent example is the Investigatory Powers Bill, currently before Parliament. Unusually, the draft Bill was accompanied by a “European Convention on Human Rights Memorandum” prepared by the Home Office which made specific reference to relevant judgments of the ECtHR and a statement that the Bill was in compliance with the minimum safeguards “that the ECtHR has held must exist within the legal framework governing the interception of communications.” If the disincentive doesn’t work, and a breach of the ECHR does occur, the ECtHR can hold the UK accountable, independent from national authorities, and free from the pressures faced by national judges. Again, the numerous successful applications brought by families seeking further information about the deaths of loved ones during The Troubles have forced accountability although not yet led to a more widespread change in law, policy or practice.

A judgment from the ECtHR can also help a Government maintain the status quo in the face of pressure for change. In recent years, many judgments concerning the UK have fallen into this category. One of the most well-known is Animal Defenders International v UK (2013) where the ECtHR concluded that the UK’s current ban on political advertising imposed by section 321(2) of the Communications Act 2003 was compatible with the right to freedom of expression as protected by Article 10 of the ECHR, a significant setback for those who have been campaigning for change for many years.

More dynamically, a judgment from the ECtHR can facilitate a process of change and progress and achieve outcomes that the national political and judicial process has simply been unable to deliver. There are many examples including S and Marper v UK (2008) (DNA database) and Smith and Grady v UK (1999) (ban on homosexuals in the armed forces). Even in the HRA era this type of judgment occurs. In Eweida v UK (2013) the ECtHR found that where someone’s freedom of religion is restricted in the workplace, the possibility of changing job doesn’t mean that there has been no interference with their rights. David Cameron welcomed the ruling, tweeting that he was “delighted that the principle of wearing religious symbols at work has been upheld.” And in its judgment in McDonald v UK (2014) the ECtHR established that a local authority’s decision to reduce a care package for an elderly woman was capable of impacting upon her dignity and therefore was an interference with her private life, as protected by Article 8 of the ECHR.

Conclusion

Whilst the national objective remains to continue to protect human rights through law, whether through the HRA or a British Bill of Rights, the ECtHR remains crucial to realising this objective. Each one of its judgments concerning the UK is reflective of at least one of the values outlined above. If the UK were to leave the ECHR system of protection, and thereby the oversight of the Court a number of very negative consequences will result: those unable to pursue remedies at the national level will have no alternative; UK courts will lose their remarkable and growing influence on the jurisprudence of the Court; our independent safety net and the regular confirmations that government and Parliament are doing a good job with human rights will be squandered; and the Court’s potential as a catalyst for dynamic change lost forever.

Merris Amos is a Reader in Human Rights Law at the Department of Law, Queen Mary University of London