October 03 2016

A democratic defence of the European Court of Human Rights

Senior Lecturer Dr Alice Donald and and Professor of Human Rights Law Philip Leach lay out their argument in defence of the European Court of Human Rights, examining the potential impact of Brexit on the future of human rights in Britain.

“Vote leave, take control” was the slogan of almost fiendish simplicity that helped win the Brexit referendum, masking the mendacity and absence of vision that underlay it. The impulses it captures – wresting sovereignty back from remote elites to Westminster, with its proud democratic tradition – echo those that have for years underpinned the opprobrium directed at the European Court of Human Rights in Strasbourg in British public debate.

Theresa May has retreated from her position of withdrawal from the European Convention on Human Rights, acknowledging that such a step – unprecedented in a democracy – lacks parliamentary support. She must also be wary of needlessly inflaming the devolved administrations, whose relationships with Brussels and Strasbourg have escaped the vituperative rhetoric that has sometimes shamed Westminster.

The reprieve may be temporary. The UK’s fractious relationship with Strasbourg is now inextricably bound up with the politics of Brexit, although in legal terms the two are unrelated (the Convention being a treaty of the Council of Europe, not the European Union). If the ‘hard’ Brexiteers prevail, they may be emboldened to complete the Eurosceptic project by ‘taking control’ back from Strasbourg too. If they falter, attacking the Court may prove an expedient way of assuaging their frustrated constituency. After the seismic shock of the referendum, no outcome is unthinkable.

European Court of Human Rights James Russell Flickr, creative commons 2.0

European Court of Human Rights (Image: James Russell CC 2.0)

Hostility towards Strasbourg is not confined to the UK. Challenges have emanated not only from Putin’s Russia, but also several mature democracies. Yet only in the UK have proposals to weaken the Court or denounce the Convention become entrenched within mainstream discourse, with reckless disregard for their contagious effect in states with egregious human rights records (and in curious paradox to the UK’s generally exemplary record of responding to adverse human rights judgments, the prisoner voting saga aside).

The ‘democratic’ critique of the Court views supranational human rights oversight as an illegitimate constraint on politicians whose principal accountability is to the electorate.

Protecting the permanent minorities

What does a democratic defence of the Court (and the wider Convention system) look like?

In its institutions and procedures, the Convention system is far more accommodating of the democratic concerns of states than critical accounts allow. Contrary to popular myth, Strasbourg judges are elected by the Parliamentary Assembly of the Council of Europe, a body made up of MPs from the forty-seven states. Under the principle of subsidiarity, the primary duty for upholding Convention rights rests with domestic institutions, while the ‘margin of appreciation’ which flows from that principle allows the Court to respect national differences.

Human rights exist in part to protect those who are in a permanent minority or relatively powerless and who cannot therefore rely on the usual mechanisms that ensure responsiveness of politicians to the electorate.

While judgments of the Court are binding on states, they do not invalidate domestic laws. Rather, considerable discretion is conferred on states to determine the specific steps by which they remedy a violation of human rights. This gives parliamentarians the opportunity to interpret the meaning of human rights and devise remedies in their own national context.

Judgments of the Court are thus a catalyst for, rather than a determinant of, domestic reform. The modus operandi of the Committee of Ministers, in which government representatives meet privately on a peer-to-peer basis, may also be viewed as highly responsive to states’ sovereignty concerns (indeed, there are strong arguments for greater scrutiny of executive action by victims, litigants and civil society).

The democratic defence of the Court rests further upon a view of external human rights supervision as constitutive, rather than undermining, of democracy. States’ decisions to create, and ratify, human rights treaties generally follow a democratic process; accordingly, such regimes enjoy a form of delegated democratic authority based on states’ consent. More compelling still are the domestic effects of human rights, which act as an external corrective to the mistakes and injustices that even well-functioning majoritarian democracies may perpetrate. Human rights exist in part to protect those who are in a permanent minority or relatively powerless and who cannot therefore rely on the usual mechanisms that ensure responsiveness of politicians to the electorate.

Bolstering confidence in democracy

The case law of the Court lays repeated emphasis on pluralism, state accountability, and the substantive and procedural dimensions of democratic self-governance. Judgments on the rights to freedom of expression, freedom of assembly and association, and free elections may all be seen as enhancing the capacities of states to better protect and uphold democratic standards. In this sense, external human rights supervision should be viewed as bolstering, rather than eroding, confidence in the democratic credentials of national decision-makers.

Crucially, all branches of the state—the executive, parliament, and the courts—are partners in the shared endeavour of protecting human rights.  From this perspective, the perceived ‘democratic deficit’ afflicting human rights stems less from a surfeit of judicial interference than from the inadequacy of political mechanisms to ‘domesticate’ human rights. The Joint Committee on Human Rights in the UK Parliament is viewed as a model of democratic engagement with human rights in Europe. The Committee’s reports have influenced the Court in its adjudications, demonstrating that the relationship between Strasbourg and national parliaments is a two-way street. Strasbourg listens—and increasingly defers—to the democratic deliberations of parliamentarians.

Public debate in the UK about the democratic legitimacy of the Court has for too long been dominated by loud voices, whose parochial and partisan considerations neglect the value of a human rights regime that offers a collective guarantee of human rights protection in forty-seven states at various uneven and precarious stages of democratic development.

This, finally, is the strongest democratic defence of the Convention system: that it belongs not to the governments of Europe, but to the peoples of Europe, for millions of whom it is the first and last hope of justice.

This article originally appeared on the Oxford University Press blog.

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