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Why the European Convention on Human Rights Still Matters
Published online by Cambridge University Press: 16 April 2024
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of Centre for European Legal Studies, Faculty of Law, University of Cambridge
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*
This paper was delivered as The Centre for European Legal Studies’ Mackenzie Stuart Lecture on 30 November 2023 in the Faculty of Law at the University of Cambridge.
References
1 Mancini, Judge GF, Democracy & Constitutionalism in the European Union (Hart Publishing, 2000), p 181Google Scholar.
2 R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023.
3 See, for example, Lord Mance in ‘The Protection of Rights: This Way, That Way, Forwards, Backwards’ (2022 Thomas More lecture, Lincoln's Inn, in which he regarded the Human Rights Act as ‘a generally sound system’ and expressed concern that the proposed Bill of Rights would ‘change this country's relationship with the ECHR and with the ECtHR in particular’ and ‘risk undermining what used to be the accepted—and successful object of the HRA, to bring rights home’.
4 Lord Carnworth, ‘Human Rights Act Reform: Is It Time for a New British Bill of Rights?’ (Centre for Public Law, University of Cambridge, 9 February 2022) https://constitutionallawmatters.org/2022/02/lord-carnwath-lecture-on-human-rights-act-reform-is-it-time-for-a-new-british-bill-of-rights/.
5 Lord Dyson, ‘Human Rights Act Reform: A Dangerous or Welcome Change?’ (University of Leeds, 16 November 2022).
6 Lord Gross, ‘The Independent Human Right Act Review: Whether the HRA Is Working Effectively’ (October 2022, Public Law Project Annual Conference) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwi4vr6jgdT8AhXYh_0HHTaFBsAQFnoECBcQAQ&url=https%3A%2F%2Fpubliclawproject.org.uk%2Fcontent%2Fuploads%2F2022%2F10%2Fihrar-plp-speech-oct22.docx&usg=AOvVaw2XAPKgY4DU7OrJD1cjsonp.
7 The Independent Human Rights Act Review is available at https://www.gov.uk/guidance/independent-human-rights-act-review. The ECtHR also engaged with the JCHR at their request.
8 S, V and A v Denmark [GC], nos 35553/12 and 2 others, paras 46, 102, 122, 22 October 2018.
9 [2017] UKSC 9.
10 See Y v France, no 76888/17, 31 January 2023; R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56.
11 M N and Others v Belgium [GC], no 3599/18, paras 86–90, 5 March 2020.
12 Banković and Others v Belgium and Others (Dec) [GC], no 52207/99, para 3, ECHR 2001-XII.
13 Duarte Agostinho and Others v Portugal and 32 Others, no 39371/20.
14 For two recent examples, see the UKHC on whether disciplinary sanctions imposed on an NHS surgeon for comments made in relation to the COVID-19 pandemic breached Article 10 (Adil v GMC [2023] EWHC 797 (Admin)) and the UKSC in R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2023] UKSC 42).
15 See further C Briddick and C Costello, ‘Supreme Judgecraft’ (VerfBlog, 20 November 2023).
16 Ndidi v the United Kingdom, no 41215/14, para 76, 14 September 2017.
17 See Chief Justice D O'Donnell, ‘A Court and the World’ The Making (and Re-Making) of Public Law Conference, UCD, 6–8 July 2022.
18 Resolution CM/Res(2022)3 on legal and financial consequences of the cessation of membership of the Russian Federation in the Council of Europe (Adopted by the Committee of Ministers on 23 March 2022 at the 1429bis meeting of the Ministers’ Deputies). See also Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention (22 March 2022).
19 See, for examples of Grand Chamber and Chamber judgments, Fedotova and Others v Russia [GC], nos 40792/10 and 2 others, 17 January 2023; Navalnyy v Russia (no 3), no 36418/20, 6 June 2023; Glukhin v Russia, no 11519/20, 4 July 2023.
20 Ukraine and the Netherlands v Russia (Dec) [GC], nos 8019/16 and 2 others, 30 November 2022.
21 The International Court of Justice is examining two cases against Russia. Ukraine filed a first case in January 2017 concerning the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation). The public hearings on the merits of the case concluded on 14 June 2023. Following the Russian invasion of Ukraine, a second case was filed concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation: 32 States Intervening). The public hearings on the preliminary objections raised by the Russian Federation concluded on 27 September 2023. The International Criminal Court Prosecutor has opened an investigation into the situation in Ukraine on the basis of the referrals by a number of member States. In March 2023, the ICC established a country office in Ukraine and issued arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation. However, by virtue of Article 15bis(5) of the Rome Statute in respect of a State that is not a party to this Statute, such as Russia, the ICC cannot exercise its jurisdiction over the crime of aggression when committed by that State's nationals or on its territory. The UN Human Rights Council has established the Independent International Commission of Inquiry on Ukraine whose task is to ‘investigate all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of the aggression against Ukraine by the Russian Federation’. Following several visits to Ukraine, the Commission has found continued war crimes and human rights violations gravely impacting civilians.
22 Council of Europe, ‘Reykjavík Declaration Appendix I: Declaration in Support of the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine’, 17 May 2023.
23 Wildhaber, L, ‘Rethinking the European Court of Human Rights’ in J Christoffersen and M Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011)Google Scholar.
24 Golder v the United Kingdom, Series A, no 18, 21 February 1975.
25 Airey v Ireland, Series A, no 32, 9 October 1979.
26 See further O'Leary, S, ‘The Legacy of Airey v Ireland and the Potential of European Law in Relation to Legal Aid’ (2019) 42 DULJ 93Google Scholar.
27 No 6016/16, 11 December 2022.
28 [2017] UKSC 51.
29 See R (on the Application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, paras 66–69. The case concerned the payment of fees by claimants in employment tribunals or employment appeals tribunals. The aims of the Fees Order adopted in 2013 was to transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims, and to encourage earlier settlement.
30 Ibid, para 64.
31 Lord Reed, Postscript to response to a call for evidence produced by the IHRAR, pp 5–6.
32 See further, speech by L-A Sicilianos, ‘The European Convention on Human Rights at 70: The Dynamic of a Unique International Instrument’ (Kristiansand, 5 May 2020) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwijpdWb_9X8AhU6Q_EDHZCMBEgQFnoECBcQAQ&url=https%3A%2F%2Fwww.echr.coe.int%2FDocuments%2FSpeech_20200505_Sicilianos_70th_anniversary_Convention_ENG.pdf&usg=AOvVaw36TiHKL65PSiGIIgfpvoPa.
33 McCann and Others v the United Kingdom, Series A, no 324, 27 September 1995.
34 Ireland v the United Kingdom, Series A, no 25, 18 January 1978; Soering v the United Kingdom, Series A, no 161, 7 July 1989.
35 VCL and AN v the United Kingdom, nos 77587/12 and 74603/12, 16 February 2021.
36 Ilgar Mammadov v Azerbaijan (no 2), no 919/15, 16 November 2017.
37 Ibrahim and Others v the United Kingdom [GC], nos 50541/08 and 3 others, 13 September 2016.
38 Del Río Prada v Spain [GC], no 42750/09, ECHR 2013.
39 Christine Goodwin v the United Kingdom [GC], no 28957/95, ECHR 2002-VI.
40 Dudgeon v the United Kingdom, Series A, no 45, 22 October 1981.
41 Eweida and Others v the United Kingdom, nos 48420/10 and 3 others, ECHR 2013 (extracts).
42 Navalnyy v Russia [GC], nos 29580/12 and 4 others, 15 November 2018.
43 McFarlane v Ireland [GC], no 31333/06, 10 September 2010.
44 JD and A v the United Kingdom, nos 32949/17 and 34614/17, 24 October 2019.
45 European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist, CDL-AD(2016)007, 18 March 2016, pp 20–24.
46 See, variously, Engel and Others v the Netherlands, Series A, no 22, para 55, 8 June 1976, or Amuur v France, para 50, 25 June 1996, Reports of Judgments and Decisions 1996-III.
47 Winterwerp v the Netherlands, Series A, no 33, para 39, 24 October 1979.
48 Vereniging Weekblad Bluf! v the Netherlands, Series A, no 306-A, para 35, 9 February 1995.
49 Malone v the United Kingdom, Series A, no 82, para 79, 2 August 1984.
50 United Communist Party of Turkey and Others v Turkey, para 45, 30 January 1998, Reports of Judgments and Decisions 1998-I.
51 See Al-Dulimi and Montana Management Inc v Switzerland [GC], no 5809/08, para 145, 21 June 2016: ‘One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle’.
52 Del Río Prada v Spain [GC], no 42750/09, ECHR 2013.
53 Panorama Ltd and Miličić v Bosnia and Herzegovina, nos 69997/10 and 7493/11, para 63, 25 July 2017.
54 Roman Zakharov v Russia [GC], no 47143/06, para 230, 4 December 2015; Beghal v The United Kingdom, no 4755/16, para 88, 28 February 2019.
55 Reflected in the core of HF and Others v France [GC], nos 24384/19 and 44234/20, 14 September 2022.
56 De Souza Ribeiro v France [GC], no 22689/07, para 83, ECHR 2012.
57 Ibrahim and Others v The United Kingdom [GC], nos 50541/08 and 3 others, para 250, 13 September 2016.
58 See, for example, Grzęda v Poland [GC], no 43572/18, para 342, 15 March 2022: ‘the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention’.
59 See Tuleya v Poland, nos 21181/19 and 51751/20, para 264, 6 July 2023: ‘The Court cannot over-emphasise the fundamental role played by the national courts as guarantors of justice in upholding that principle through their decisions whereby they give direct effect to the Convention rights and freedoms or remedy Convention violations that have already occurred’, citing Grzęda v Poland (n 58) para 324.
60 Juričić v Croatia, no 58222/09, 26 July 2011.
61 Dzhidzheva-Trendafilova v Bulgaria (Dec), no 12628/09, 9 October 2012; Tsanova-Gecheva v Bulgaria, no 43800/12, paras 85–87, 15 September 2015.
62 Tosti v Italy (Dec), no 27791/06, 12 May 2009.
63 Paluda v Slovakia, no 33392/12, paras 33–34, 23 May 2017; Camelia Bogdan v Romania, no 36889/18, para 70, 20 October 2020.
64 Ramos Nunes de Carvalho e Sá v Portugal [GC], nos 55391/13 and 2 others, para 120, 6 November 2018; Di Giovanni v Italy, no 51160/06, paras 36–37, 9 July 2013; Eminağaoğlu v Turkey, no 76521/12, para 80, 9 March 2021. As regards dismissal, see Oleksandr Volkov v Ukraine, no 21722/11, paras 91, 96, ECHR 2013; Kulykov and Others v Ukraine, nos 5114/09 and 17 others, paras 118 and 132, 19 January 2017; Sturua v Georgia, no 45729/05, para 27, 28 March 2017; Kamenos v Cyprus, no 147/07, paras 82–88, 31 October 2017; Olujić v Croatia, no 22330/05, paras 31–43, 5 February 2009.
65 Baka v Hungary [GC], no 20261/12, paras 34, 107–11, 23 June 2016; Denisov v Ukraine [GC], no 76639/11, para 54, 25 September 2018; Broda and Bojara v Poland, nos 26691/18 and 27367/18, paras 121–23, 29 June 2021; Gumenyuk and Others v Ukraine, no 11423/19, paras 61, 65–67, 22 July 2021. See, for an overview, K Šimáčková, ‘Protection of the Rule of Law and Judicial Independence through the Protection of the Rights of Judges before the European Court of Human Rights’ (EUnited in Diversity, II, The Hague, August 2023, forthcoming CJEU).
66 See, variously, Reczkowicz v Poland, no 43447/19, paras 216–79, 22 July 2021; Besnik Cani v Albania, no 37474/20, paras 83–114, 4 October 2022; Gloveli v Georgia, no 18952/18, paras 49–51, 7 April 2022.
67 The applicant had expressed critical views on constitutional and legislative reforms affecting the judiciary, on issues related to the functioning and reform of the judicial system, the independence and irremovability of judges and the lowering of the retirement age for judges.
68 Baka v Hungary [GC], no 20261/12, para 168, 23 June 2016.
69 Ibid, para 165.
70 Żurek v Poland, no 39650/18, para 224, 16 June 2022; Miroslava Todorova v Bulgarie, no 40072/13, para 172, 19 October 2021; Brisc v Romania, no 26238/10, paras 106–07, 11 December 2018.
71 See further R Hogarth, ‘The Internal Market Bill Breaks International Law and Lays the Ground to Break More Law’ (Institute for Government, 9 September 2020).
72 For a more extensive explanation of the role played by the rule of law in Strasbourg case law, contrasting it with the recent case law of the CJEU, see S O'Leary, ‘Europe and the Rule of Law’ (ECB Legal Conference, 2018).
73 El-Masri v The Former Yugoslav Republic of Macedonia [GC], no 39630/09, ECHR 2012.
74 Ibid, para 236.
75 Al Nashiri v Romania, no 33234/12, 31 May 2018.
76 Abu Zubaydah v Lithuania, no 46454/11, 31 May 2018.
77 Nasr and Ghali v Italy, no 44883/09, 23 February 2016.
78 Lauterpacht, H et al, ‘The Proposed European Court of Human Rights’ (1949) 35 Transactions of the Grotius Society 25, p 34Google Scholar.
79 Lord Sumption, ‘Judgment Call: The Case for Leaving the ECHR’ (The Spectator, 30 September 2023) https://www.spectator.co.uk/article/judgment-day-the-case-for-leaving-the-echr/; J Simor, ‘Why Lord Sumption Is Dangerously Wrong About Our Human Rights Law’ (Prospect Magazine, 2 October 2023) https://www.prospectmagazine.co.uk/ideas/law/63339/lord-sumption-ehcr-human-rights-law; Lord Sumption, ‘Jessica Simor's Misguided Defence of the ECHR’ (Prospect Magazine, 5 October 2023) https://www.prospectmagazine.co.uk/ideas/law/63392/jonathan-sumption-response-to-jessica-simor-european-convention-human-rights.
80 See further S O'Leary, ‘Legal Tales of European Integration: the ECHR and Modern Ireland’ (Iveagh House EU 50 Lecture, 1 February 2023).
81 O'Leary, S. ‘Why the European Convention on Human Rights Still Matters’ (2023) 7(2) Irish Judicial Studies Journal 20Google Scholar; O'Cinneide, C, ‘“What Has the ECHR Ever Done for Us?” The Particular and Specific Importance of the Convention in Protecting Rights Across a Democratic Europe’ (2023) 7(2) Irish Judicial Studies Journal 32Google Scholar.
82 See DG v Ireland, no 39474/98, ECHR 2002-III.
83 O'Keeffe v Ireland [GC], no 35810/09, ECHR 2014 (extracts).
84 Smith and Grady v The United Kingdom, nos 33985/96 and 33986/96, ECHR 1999-VI.
85 Lustig-Prean and Beckett v the United Kingdom, nos 31417/96 and 32377/96, 27 September 1999.
86 See further Smith and Grady (n 84) paras 35–41; Simor (n 79).
87 Ibid, para 121.
88 See Smith and Grady (n 84) para 38, where Lord Bingham's judgment is partly summarised as follows: ‘He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference, and to interrogate him or her about private sexual behaviour, would not appear to show respect for that person's private and family life and that there might be room for argument as to whether the policy answered a ‘pressing social need’ and, in particular, was proportionate to the legitimate aim pursued. However, he held that these were not questions to which answers could be properly or usefully proffered by the Court of Appeal but rather were questions for the European Court of Human Rights, to which court the applicants might have to pursue their claim’.
89 Lord Etherton, ‘Independent Review into the Service and Experience of LGBT Veterans Who Served Prior to 2000’ (May 2023).
90 Ibid, pp 42, 163, 164, Annex 5. For just satisfaction judgments, see Smith and Grady v The United Kingdom (Just Satisfaction), nos 33985/96 and 33986/96, ECHR 2000-IX; Lustig-Prean and Beckett v The United Kingdom (Just Satisfaction), nos 31417/96 and 32377/96, 25 July 2000.
91 O'Cinneide (n 81).
92 Opuz v Turkey, no 33401/02, ECHR 2009.
93 Talpis v Italy, no 41237/14, 2 March 2017.
94 Tagayeva and Others v Russia, nos 26562/07 and 6 others, 13 April 2017.
95 JL v Italy, no 5671/16, 27 May 2021.
96 See Simor (n 79).
97 D Pavli and R Kondak, ‘Beyond the Age of Subsidiarity: Do Established Democracies Still Need the European Court of Human Rights?’ (2022) Liber Amicorum Robert Spano, p 563.
98 See Lord Sumption (n 79).
99 Animal Defenders International v The United Kingdom [GC], no 48876/08, para 108, ECHR 2013 (extracts).
100 Garib v the Netherlands [GC], no 43494/09, para 138, 6 November 2017; Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland [GC], no 931/13, para 192, 27 June 2017; LB v Hungary, no 36345/16, 12 January 2021.
101 Animal Defenders International (n 99) 111.
102 Ibrahim and Others v The United Kingdom [GC], nos 50541/08 and 3 others, 13 September 2016.
103 Pagerie v France, no 24203/16, 19 January 2023.
104 Vavřička and Others v the Czech Republic [GC], nos 47621/13 and 5 others, 8 April 2021.
105 See the partly dissenting opinion of Judges Hajiev, Yudkivska, Lemmens, Mahoney, Silvis, and O'Leary in Ibrahim and Others, para 2.
106 See further the defence by R Spano, ‘The Democratic Virtues of Human Rights Law: A Response to Lord Sumption's Reith Lectures’ (2020) EHRLR 132.
107 See paragraph 6 of the Copenhagen declaration, which declaration one commentator has noted evoked ‘effectiveness’ 30 times in 67 paragraphs.
108 See the domestic proceedings in R (AAA & Ors) v Secretary of State for the Home Department (UNHCR Intervening) [2023] UKSC 42 following the imposition of an interim measure by the ECtHR on 14 June 2022 after the UKSC had refused the relevant applicants permission to appeal. All individual decisions were quashed by the Divisional Court and not appealed.
109 Ibid, para 10.
110 P. Leach, The Continuing Utility of International Human Rights Mechanisms? EJIL:Talk! 1 November 2017.