The ECtHR (the Court) began operation in 1959 and since that time has delivered many thousands of judgments regarding alleged violations of the European Convention on Human Rights. The UK was the first country to ratify it and it helped in its legal design. It is not, and never has been, part of the EU. It sits under the auspices of the Council of Europe where the European Convention on Human Rights is one its treaties or conventions. Neither is it a ‘foreign court’. The UK shares directly in the administration of the Court where the responsibility rests between 46 member countries. In short: the UK is a member of the Council of Europe; the UK is a signatory to the European Convention on Human Rights; the UK is a participating member of the Court; the UK has a full-time judge at the Court. All of these elements are linked and unscrambling one would be a major exercise which would isolate us from an organisation which operates in a more consensual way. Judges to the Court are elected by the Parliamentary Assembly of the Council of Europe for a period of nine years.
The way in which the Court works and how it relates to individual domestic jurisdictions is both changing and the subject of reform. The UK Delegation to the Parliamentary Assembly of the Council of Europe takes an active role in these reforms. It is, for example, (Hansard: 19 January 2022), trying to reform the Court in relation to those who are elected judges. In addition, the Court itself is developing its methods of working with country jurisdictions. We should not forget that the UK Supreme Court is unlike many others in Europe in terms of its professionalism and expertise. We should be working with the Court and our judge on it to ensure that we can help drive the Court in the way we want and in recognition of the excellence of the Supreme Court.
Leaving the Court is unlikely to be seen as a positive move in the eyes of European and other world states. It would for example ensure that in the eyes of wider Europe, the UK would be seen in the same bracket as Russia and Greece under the Colonels. It goes without saying that even if we felt comfortable with this, now is not the time to be placed in this category given the attitude of countries to Russia’s hostile aggression against Ukraine. Similarly, the idea that we can with impunity simply decide not to be part of the Court would badly affect our ability to hold other countries to account for human rights abuses. The Convention on which the Court makes judgments has influenced common law jurisdictions around the world. Even in Australia it has been said that the Convention (and the Court) “is one far greater than anything we have achieved on our continent, difficult and even miraculous, as our achievement is sometimes described” (Conference on Re-Appraising the Judicial Role – European and Australian Comparative Perspectives 14 February 2011).
We also have to ask whether leaving the Court would actually do any good. It is doubtful that it would, as the Court deals with so few UK cases anyway. According to the Country Profile of the UK published by the Court, in 2021 the Court dealt with 215 applications relating to the UK of which 205 (just over 95%) were dismissed as inadmissible. In the case of Rwanda, the Court did not comment on the policy of sending illegal immigrants to Rwanda and it has made no comment on the policy itself. The Court issued an interim measure that an individual cannot be deported to Rwanda until three weeks after the delivery of the final UK decision in the ongoing judicial review proceedings. In the case of two others their deportation was delayed until 20 June (6 days). Two other applicants had their applications for interim measures before the Court rejected. In other words, the Court decided nothing – the judgment was interim. It did not prevent anyone’s deportation; it delayed it. The Court did not rule that the policy was unlawful.
This case is often compared with the case of prisoners’ voting rights. In 2005 the Court ruled that the UK was in breach of Article 3 of Protocol No 1 of the Convention in relation to prisoner voting rights. The issue remained unresolved, but not ignored, for over a decade. In December 2017 the UK Government came up with proposals that the Council of Europe said were sufficient to signify compliance with the 2005 ruling and the Court finally closed the case in September 2018. There is no need for the UK to ignore the Court over immigration policy. What is required is a patient working through of the issues to achieve a solution that is in everyone’s interests. The UK Delegation to the Council of Europe can also play its part in this and note should be taken of how countries such as Ireland are taking a more sophisticated approach, for example over abortion.
We also need to look at the UK’s continued membership of the Council of Europe in this light. No one believes that we can continue to be members of the Council and not of the Convention and Court. The Council of Europe provides the final opportunity for the UK to engage with countries in wider Europe after we have left the EU. Amongst its 46 member countries many are not part of the EU and there is a long running dispute with the EU about whether it should become a member of the Court. The Council of Europe provides a valuable adjunct to UK foreign policy. It has for example helped galvanise attitudes against Russia in the aftermath of its war of aggression against Ukraine and has contributed to Russia’s isolation. It has also worked with the Turkish delegation to help overcome Turkish objections to Finland and Sweden becoming members of NATO. It is working with the Turkish political prisoner, Osman Kavala, to help settle a dispute between the Court and the Turkish government. All of these achievements are down to the UK Delegation, but it would leave an enormous gap in our foreign policy objectives if they were not available to the UK as an adjunct to our foreign policy.
Finally, we must also look at how the issue of the Court will affect the Conservative Party. The recent attempt by Jonathan Gullis to introduce a Private Members Bill to deal with our future relationship with the Court was defeated by 69 votes to 188. That it was brought illustrates how disruptive and divisive the issue has become and how we should steer clear of taking precipitative action.
Comments in the press and media have got the information about the Court wrong. There is a legitimate debate to be had about the role of the Court and whether it has become effectively the ‘supreme court’ of the wider Europe. But that debate is separate from the current decision and is one in which the UK should be playing a major role. The UK simply cannot tell other countries what to do with their human rights and not accept that it too is part of a greater network of human rights decisions. It cannot criticise the human rights records of Türkiye or Russia and not accept that just occasionally – and it is very occasionally – we too will be criticised. Simply because a judgment appears to have gone against us, we cannot just storm off.
