One response to the suggestion that the Convention mechanism is undemocratic or even anti-democratic is to point out gently that our judges are in fact elected by the Parliamentary Assembly of the Council of Europe, composed of delegations from national parliaments. Each government puts forward a list of three nominees from which the Assembly elects a judge for a single nine-year term. This system is far from perfect – for example finding three candidates of equivalent merit is not always easy, particularly from certain countries, and the assembly is not immune to lobbying on political grounds. It is however arguably democratic. I have no hesitation in saying that attracting the right calibre of judge to Strasbourg is an important element in guaranteeing the quality and authority of the Court’s case law. However, the regular media attacks, sometimes of a personal nature, on the individual judges of the Court are wholly unjustified. A Court composed of judges from 47 countries will inevitably include a wide range of different legal backgrounds and cultures. This makes for rich and sometimes vigorous debate. Some come with judicial experience, some have been senior academics and some have been leading practitioners. This is a mix of backgrounds that will be familiar in many other legal systems.
From another perspective it is somewhat ironic that, in the general discussion on the democratic deficit of European process, the Strasbourg Court has been particularly targeted. It is after all the only European institution to which private individuals have direct access. Perhaps most importantly, the stated aim of the framers of the Convention was to protect democracy. The Court has consistently stressed the fundamental place of democracy in the Convention scheme. At the same time there is a natural tension between fundamental rights and democracy. The strength of the Convention lies in recognising that democracy cannot be meaningful unless it operates within the rule of law. This has a consequence that in some situations the rule of law trumps the majority view, even if expressed through a democratic process.
That is why the idea of any “democratic override” which has some vocal supporters in the United Kingdom is inimical to the effective protection of human rights and would undermine the whole system set up by the Convention. The suggestion that governments could “pick and choose” the fundamental rights that they will comply with and the judgments they find acceptable is entirely contrary to the rule of law, and turns its back on over 60 years of development of international human rights protection.
It is of course important for the Court to ensure that the rights whose protection it guarantees do indeed fall within the sphere of rights that are so fundamental that they have to be protected even against the democratically expressed will of the majority.
This brings me to the second criticism of the Court – and perhaps a widely held perception – namely that it is guilty of a form of mission creep. In Strasbourg jargon this is what is known as the living instrument doctrine and it has been strongly attacked in some quarters. Has the Court the power to reinterpret the Convention? Has it gone too far in doing so?
I think firstly it is clear from the preamble to the Convention that the content of the rights and freedoms was not regarded by the drafters as static. I also find surprising the suggestion that this approach is inconsistent with the Vienna Convention on the Law of Treaties which expressly provides for interpretation in the light of the object and purpose of the treaty.
But even without this legal basis for attributing a dynamic character to the Convention, it is plain that in practice the maintenance of human rights and fundamental freedoms requires the Court to ensure that the protected rights and freedoms continue to be effective in changing circumstances. This means taking into account developments in the law, in society and in science and technology. It hardly needs to be said that many aspects of contemporary human activity which by any definition fall within the intended sphere of protection of the Convention could certainly not have been envisaged by the drafters in 1950. To adopt a purely “originalist” stance would be to deprive the Convention of much of its relevance today. One only has to compare what is understood by family and private life in modern society with how it would have been perceived in 1950 to see the difficulty of this approach.
To restrict the content of the substantive rights to what one might speculate to have been the views of the drafters in 1950 would mean that aspects of family life which have since been recognised by national law would fall outside the protection of the Convention. The same is demonstrably true of, for example, developments in the fields of bioethics and communication.
However visionary the drafters were, they cannot have foreseen in vitro fertilisation and the internet. This form of evolution, or updating of the law in the light of changing circumstances, is not I think unfamiliar to common law practitioners. The first time the Court referred to the notion of a living instrument was in a British case, Tyrer, which concerned the birching of a minor as a criminal sanction in the Isle of Man (Tyrer v the United Kingdom, 25 April 1978, Series A No. 26). While this would undoubtedly have been regarded as acceptable in 1950, by the 1970s, attitudes had changed. It would be inconceivable for the Court not to take account of such developments. Sexual orientation is another area where to retain the understanding prevailing in 1950 would lead to results which would be totally out of step with today’s society.
And what would one say in respect of a more recent finding, broadly welcomed in the United Kingdom, that the unlimited retention of DNA samples of persons never convicted of an offence violated the right to a private life (S and Marper v the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008). Indeed preventing the Convention from evolving in this way would risk leading to the perverse outcome whereby the Convention could actually operate as an obstacle to reform and improved human rights protection.
The limits of the Convention
This does not of course mean that there are no limits to the interpretative evolution of the Convention. The Court recognises, and has repeatedly stressed, the importance of legal certainty, foreseeability and equality before the law, and for this reason in principle only departs from settled case law where there are compelling grounds for doing so. Moreover the Court cannot by means of evolutive interpretation derive from the Convention a right that was not included in it at the outset. It cannot create new rights as opposed to applying existing rights in a changed context.
Another important self-imposed constraint is the use of the notion of European consensus to regulate the pace of Convention development. Where there is a sufficient degree of convergence in domestic laws of the States Parties an evolutive interpretation may be justified. In other words where the majority of European States have recognised such developments in their law, there may be grounds for finding that a State which has lagged behind is in breach of its Convention obligations. A good example of this is to be found in a series of cases concerning the rights of transsexuals in the United Kingdom.
There is no space in this short text to enter into a discussion on the specific cases which have given rise to the most criticism. However, one common theme in the debate surrounding the Court has been the need to strengthen subsidiarity. This is a notion which dates back to the Court’s early case law. It has however given rise to some misunderstanding. Subsidiarity recognises that the national authorities have an important role under the Convention system, and that when they fulfil that role, the Court’s scrutiny can be less intrusive. It does not however exclude that review.
The national authorities, particularly the judicial authorities, are the primary guarantors of the Convention rights and freedoms. The underlying purpose of the Convention is to ensure that those availing themselves of its protection can vindicate their rights in the national system without having to engage what is inevitably a more cumbersome and time-consuming international process. One of the outcomes of last year’s Brighton conference was the inclusion of an express reference to subsidiarity and the margin of appreciation in the preamble to the Convention. I have some difficulty in seeing how this will have any real impact because I believe it merely reflects how the Court functions today in principle.
It seems clear to me that where a national Supreme Court has reached a decision taking into account the Convention guarantees and the Strasbourg case law, only exceptionally should the European Court impose its view on that of the national authorities, even if it might itself have come to a different conclusion.
Exporting common principles and shaping Convention jurisprudence
Let me conclude by saying that one reason why the present distrust and misunderstanding of the Court causes distress and disappointment in Strasbourg and elsewhere is that, as I have already mentioned, the United Kingdom has contributed so much to this system. Rather than being a mechanism for imposing foreign legal concepts on the United Kingdom, as it is often portrayed, the Convention has proved particularly effective in exporting principles developed at common law to the rest of Europe. The enormous respect in which the British judiciary is held in Strasbourg and the particularly persuasive judgments of the British courts mean that that influence continues to grow and help shape Convention jurisprudence. Beyond that, perhaps the real importance of the Convention system to the United Kingdom is its impact in the wider Europe and on the process of consolidation of democracy and the rule of law throughout the Convention community and indeed further afield. It must surely be in the interests of the United Kingdom for there to be a mechanism which promotes the values, without which there can be no long term stability whether economic or political.