The ECHR needs saving from itself

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Just before Easter, and with little fanfare, the judges on the European Court of Human Rights announced new guidelines on the contentious interim orders that have, among other things, frustrated the UK government’s Rwanda deportation scheme for clandestine migrants.

The move, which toughens the criteria for issuing these Rule 39 orders, was greeted in Downing Street as proof that the court recognises the toxicity of the migration issue. In the UK, rightwingers have used the orders to call for withdrawal from the European Convention on Human Rights. Even before Rwanda, the ECHR’s rulings on deportations were alienating governments and voters. Was this, perhaps, a sign that the court had woken up to the political challenge?

Two weeks later, however, came a separate ruling that seemed to show the court widening its remit to treat demands for climate action as part of the right to life. It may amount to less than it appears but environmental campaigners saw it as a major advance.

The two events highlight a central tension. The first showed judges seeing the need to protect the court from popular discontent; the second that it remains wedded to judicial activism. 

The ECHR and its parent body, the Council of Europe, were created in the aftermath of the second world war and in the shadow of Stalin’s Soviet bloc. The democratic nations of a brutalised continent agreed to international oversight to secure basic human rights — including freedom from torture and the right to a fair trial. It has been an undoubted force for good, driving the Europe-wide decriminalisation of homosexuality and abolition of the death penalty. It has bolstered press freedom, notably through its rulings on the Thalidomide scandal. 

But the court views the convention as a “living instrument” and rights are broadly interpreted. To nationalists, it is an unelected supranational body accumulating power and overriding “the will of the people”. They noted this line in the climate judgment: “democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”. Many will welcome the climate ruling but it does intrude further into national politics.  

The ECHR is fortified by two structural bulwarks. It is extremely hard to leave and very hard to reform. EU members and accession candidates have no real choice about membership while the UK would pay a heavy price for withdrawing. Convention membership is a condition of the Belfast Agreement and the security pillars of the post-Brexit EU trade deal. 

There are only two paths to reform; agreement of all 46 member states in the Council of Europe or judges agreeing new guidance. The former is complex and cumbersome. The judicial path is simpler but courts do not lightly narrow their scope. One political safeguard is that countries are left to find their own remedies to adverse rulings and offer them to a committee of ministers.

Yet frustration with the Strasbourg court is rising. Prime Minister Rishi Sunak has warned he will not allow “a foreign court” to stop the UK policing its borders. (In fact the Rwanda plan has so far largely been blocked by British courts, hence the ongoing legislative battle, though an ECHR challenge remains likely). In France, interior minister Gérald Darmanin defied an ECHR ruling and deported a man viewed as a radical Islamist. The recent alkali attack on a woman and children in London by an Afghan asylum seeker, a convicted criminal, highlighted the obstacles the convention places to removing dangerous individuals. 

The new guidelines are an encouraging start that shows judges are alive to the risks and political attacks on their legitimacy — which could easily grow if Europe turns to the hard right, not least towards Marine Le Pen in France.

A UK exit is unlikely in the short term. A Labour government would not leave but, in defeat, the Tories may well shift to campaigning for withdrawal from the convention and reversing its incorporation in the UK law. This would be a wretched step for a nation that played such a central role in its creation. But the argument is being made. 

The greater risk is that nations stop abiding by awkward rulings. Russia was expelled in 2022 but one former minister wonders: “Would Council members really throw out a founding democracy?” Or politicians might use the committee of ministers to neuter rulings by agreeing minimal remedies.

Both judges and the Council of Europe must wake up to the need to save the ECHR from itself. The world has changed since the 1950s and at times it looks out of step with current challenges. The public will always struggle with special protections for those who arrive illegally, commit crimes or threaten security. It would be tragic if a robust defender of human rights falters when it is most needed because it had failed to adapt.

Reform may mean narrowing its remit, addressing specific complaints or finding ways not to add to the pressures on mainstream governments. Judges could also make more use of the “margin of appreciation” which allows room for manoeuvre to national governments.

The temptation may be to try to ride out these challenges but multilateral bodies are under fire across the west. Far better for the court’s allies to blunt attacks with a few judicious reforms. In these febrile times, the ECHR is something worth fighting to preserve.

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