Does The European Court of Human Rights defend Democracy?

The relationship between the European Court of Human Rights (ECHR), the UK Parliament and our national courts is complex and problematic. The 2012 Brighton Declaration called for ‘information, proposals and views’ on reforming the Strasbourg court.

Subsequently, in 2014, The Council of Europe identified weaknesses at the ECHR including a backlog of cases, an inadequate level of resources and poor implementation of the Human Rights Convention at national level. The UK has repeatedly threatened to withdraw from the Convention. It is now in the process of bringing forward proposals for a UK Bill of Rights although it is not clear to what extent this will replace the Convention or the jurisdiction of the ECHR and its judges.

Critics of the ECHR claim that it undermines democracy. They allege that the Court has interpreted the text of the Convention so as to create new rights that extend beyond the purpose and objectives of the Convention. Lord Sumption, in his Sultan Azlan Shah lecture in Mexico in November 2103, stated that this is “not always easy to reconcile with the rule of law” leading to “a significant democratic deficit.”

Is Lord Sumption right? David Pannick QC, who is a crossbench peer in the House of Lords as well as being a practising barrister, thinks not. He has argued that the judgments of the ECHR have made democracy stronger. For instance by protecting the interests of unpopular minorities, many of which lack political power, and that this is an essential requirement of the democratic process. Furthermore, he observes that the ECHR interprets the Convention’s rights to address contemporary concerns and, accordingly, each generation of its judges applies the Convention to reflect changing social conditions, thereby preventing the interpretation of human rights from ossifying.

Broad concepts such as “degrading treatment” and “private life” are interpreted in the context of changing social standards and prevailing democratic requirements. What would not have been interpreted as a breach of fundamental rights 50 years ago, would be considered a breach today. Thus democracy is served, today, by the removal of the ban on homosexuals serving in the armed forces and by the protection of personal information from the State and other institutions.

So, yes, it may be argued that the ECHR does defend democracy but, crucially, it can only do this if it is adequately funded and resourced. In a democracy, it is the responsibility of the people, including you, to make sure that this happens. So, if you agree, have your say now. Speak up for your rights. You can find your Member of Parliament’s name at: http://www.ukpolitical.info/Finder.htm