ECHR to national governments: You can talk but we won’t listen

A “disquieting” and “troubling” letter is circulating in Europe.  It is “chilling” and aims to “scare and pressure”.  That at least is the language used by contributors to Verfassungsblog, an in-house discussion forum for Europe’s legal establishment, about last month’s Danish-Italian letter aimed at the European Court of Human Rights and calling for more national freedom in how “criminal foreign nationals” are treated.

One smiles at the likely shock and horror among Europe’s legal elite generated by such lèse-majesté from national governments.  As Alain Berset, Secretary General of the Council of Europe, responded: “Debate is healthy, but politicising the Court is not.”

It is, however, difficult to imagine what kind of debate would not politicise the court. Is not the essence of political debate that it envisages possible change and different outcomes?  Yet Berset adds that “Institutions that protect fundamental rights cannot bend to political cycles.”  In other words, best if you don’t talk; but if you must talk, we won’t listen.

His sharp reaction, and the wave of pearl-clutching from Europe’s legal establishment, betrays not confidence but the lack of it.  If he was confident that positions taken by the court stood up to scrutiny, he would surely welcome debate.  In fact, any minimally attentive observer can see that a dangerous gap is opening up between Europe’s human rights court on the one hand, and many of its politicians and voters on the other.  That is not limited to the countries of signatories of the letter: Hungary and Slovakia, non-signatories, would surely sympathise too.

The debate in the UK is if anything even sharper.  The removal of the Court of Justice of the European Union’s (CJEU) jurisdiction in the UK, for most purposes anyway, has brought the ECHR and its court into clearer focus.  Even Prime Minister Keir Starmer, an international lawyer par excellence, has indicated he is open to some sort of reform.  The currently leading opposition party, Reform UK, is committed to leaving the ECHR entirely, and the mainstream Conservative Party has just begun a policy review which many see as tilted in the same direction.

All these critiques of the European Convention on Human Rights ultimately stem from the “living instrument” doctrine, adopted by the court in the late 1970s.  Under this the court essentially gave itself the power to move away from the words of the convention and the intentions of its original drafters in favour of evolving its doctrines to respond to contemporary challenges.

This has allowed the court in effect to create its own powers.  For example, it allowed the abandonment of the territorial idea of jurisdiction in Article 1 and the consequent invention of an obligation under Article 2 (right to life) requiring states to investigate deaths in conflict theatres like Iraq or Afghanistan.  One can take different views of whether this is desirable or not, but it is surely a matter of political debate whether a country’s troops should be subject to the ECHR, not something that the court should simply make up.

Similarly, much domestic policy is now within the ambit of the court through the medium of the convention’s Article 8, the right to family life.  As Lord Sumption, a former UK Supreme Court judge has put it, “the [Court] has emancipated itself from the text and allowed itself to wander freely over the whole realm of social policy.”  The recent judgment in Verein Klimaseniorinnen Schweiz and others v. Switzerland says Article 8 even encompasses a ”right for individuals to effective protection by the State authorities from serious adverse effects of climate change.”

This is, of course, the way Europe does things nowadays, and the letter of the nine is careful not to challenge it.  They begin by underlining their “firm belief in our European values, the rule of law and human rights” and the “rule-based international order.”  They make clear they are questioning the interpretation of the convention, not the ECHR system as such.  They want to begin a “conversation”, nothing more, perhaps at this week’s Justice and Home Affairs Council where the ECHR is on the agenda.  But if so, it is difficult to believe it will lead anywhere, for two reasons.

The first is that there is no criticism of the Strasbourg court that cannot be made, just as accurately, of the EU’s own Court of Justice.  That is after all a supremely political court, one that has no hesitation in adapting its doctrines as necessary for the goal of ever closer union, a court that is so high and mighty that it won’t allow the EU itself to become a member of the ECHR in case it limits its own judicial powers. Once the CJEU is called into question, then the glue of European integration is, too, and few European politicians dare do that. That’s why Viktor Orbán’s refusal to pay fines imposed by the court is so hated by European elites and so important for the future.

The second, even deeper reason is the conviction of almost all European policy-makers about the superiority of international bodies.  The letter of the nine says it, in almost religious terms: “We believe deeply … in the role of multilateral institutions including the UN, the EU and NATO”.  If you believe this, then it is heresy, a sin against the Founding Fathers, to find yourself acknowledging that such institutions might be getting things wrong and that national decision-making might be superior.  To avoid this thoughtcrime the writers must necessarily engage in doublethink, as Orwell put it, “hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them.”  They won’t get coherent policy out of that.

This is why, for now at least, only Britain seems able to have an honest discussion about the ECHR. It’s perhaps also why ours is the most sceptical, the most realistic about the prospect of real reform, and the most willing to face the options.  It won’t happen under Keir Starmer, but it is entirely possible that Britain might leave the convention after the next election.  Will Britain, here too, be an outlier – or will it lead the way?

The Rt Hon Lord Frost of Allerton CMG was Britain’s chief negotiator for exiting the European Union.