The ECHR and the 'living instrument' doctrine

In Bright Blue’s new report ‘Fighting for freedom?’, former High Court Judge and QC Sir Michael Tugendhat assesses the historic and future relationship between conservatism and human rights. In opposition to previous Conservative Party commitments to repeal the Human Rights Act (HRA) and the Prime Minister's’ scepticism of the European Convention on Human Rights (ECHR), Sir Michael defends the UK’s current human rights framework, arguing that the Conservatives should not pursue either of these changes.

The report also addresses the seven main Conservative critiques of the UK’s current human rights framework that Sir Michael identifies. These include:

  • International courts instructing the UK

  • A higher body of law than UK law (the ECHR)

  • Mission creep and judicial activism of European judges

  • The undermining of UK courts

  • The undermining of the UK Parliament

  • Giving prisoners the right to vote

  • The undermining of British security

Sir Michael responds to each of these criticisms methodically, demonstrating the mistakes and bad faith that often motivate them, while also conceding the need for reform in various specific areas.

Perhaps the most contentious of these criticisms is the idea that the ECHR has been guilty of ‘mission creep’ over the past 70 years at the hands of activist European and British judges.

This claim was made most prominently in ‘Protecting human rights in the UK’, a report by the Conservative party proposing changes to Britain’s human rights laws. The report argues that the European Court of Human Rights (ECtHR) has developed ‘mission creep’ by adopting “a principle of interpretation that regards the Convention as a ‘living instrument’.” This principle allows the court “to expand Convention rights into new areas, and certainly beyond what the framers of the Convention had in mind when they signed up to it.”

This criticism of the ECHR as a ‘living instrument’ is misplaced and shows little understanding of how laws are made and interpreted. Treating the ECHR as a ‘living instrument’ means conferring to the words of the convention the meaning they bear at the time the ECtHR is making a decision, rather than the meaning the words might have borne at the time the ECHR was entered into by the framers in the early 1950s, or the original intent of the framers (where that is discoverable).

The judicial activism that the ‘living instrument’ doctrine requires should not be regarded a fault, as it is essential if laws are to remain relevant. UK common law is itself a body of law that has developed through judicial activism, and necessarily so. First, because there is no foundational document setting out the common law which was framed at a particular date. Second, because much of common law was formed during the middle ages, when standards were very different from today. If judges had not been as activist as they were in the sixteenth to eighteenth centuries, we would not have the common law protection of human rights which was the source for the ECHR.

Bearing the above in mind, the criticism that the ECHR has expanded “beyond what the framers of the Convention had in mind when they signed up to it” starts to look distinctly unconvincing. The framers of the ECHR would have understood that it would need to be applied in circumstances that were unforeseeable at the time, and that it would therefore have to be treated as a ‘living instrument’. Since the UK signed the ECHR in 1950 there have been significant changes in attitude to matters such as capital punishment and discrimination on grounds of gender or sexual orientation. The ECHR must also now be applied in relation to things which did not exist in 1950, such as CCTV, IVF, the internet, various medical advances, and much more besides. Treating the ECHR as a ‘living instrument’ is essential if the law is to adapt to these changes.

It is difficult to find fault with the ‘living instrument’ doctrine in principle, and upon closer examination, most of the objections towards the ECHR by Conservatives involves criticism of individual cases, rather than the ‘living instrument’ doctrine itself. Conservatives seem to object not so much to judicial activism, but to instances of judicial activism on issues where they disagree with the judgement of the ECtHR. For instance, the ECtHR has been activist in its interpretation of article 10 with little objection by Conservatives, as it has resulted in increased press freedom in relation to matters of public interest.

However, there has been widespread criticism of the ECtHR’s decision that the UK’s blanket ban on voting for prisoners is in violation of Protocol 1 of the ECHR. This decision has been used as an example of a case in which the ECHR has been interpreted too broadly, and resulted in undue judicial meddling in politics. In Hirst v UK (No 2), the ECtHR accepted that depriving prisoners of the right to vote can be justified in serious cases. But it held that the prohibition in the UK violated the rights of some prisoners because the disqualification was “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances”.

Whilst a reasonable person could object to this decision by the ECtHR, the principle that the ECHR should be regarded as a ‘living instrument’ is not the problem here, rather it is the application of this principle to a particular case. Therefore, the claim by the Conservative Party that the ‘living instrument’ doctrine is a powerful objection to the ECHR is unfounded. Furthermore, whilst the ECtHR may have applied the doctrine too liberally in some cases, in the vast majority of instances the ECtHR is simply updating the law to maintain its relevance in the face of changing attitudes and circumstances.

Freddie Lloyd is a research assistant at Bright Blue