A Serious Constitutional Reality

We are so lucky to have Thomas Fazi:

For much of its existence, the European Convention of Human Rights (ECHR) and its enforcement arm, the European Court of Human Rights (ECtHR), occupied a relatively uncontroversial place in the European and British imagination, credited with landmark advances in civil rights, from protections for journalistic freedom to equality for homosexuals. Yet, 75 years after its founding, the institution that was once seen as a guardian of liberty has become something quite different: a transnational court that functions in practice as a supranational authority, reserving for itself the power to decide, and constantly redefine, what counts as a “human right”.

In recent years, the Court has increasingly come into conflict with elected governments — most notably over questions of migration and deportation. Its critics, particularly in Britain, argue that the Convention has expanded far beyond its original remit, interfering in areas that go to the heart of democratic sovereignty: border control, national security and the prerogative of parliaments to set the law. When nine European leaders signed a joint letter in May this year, questioning whether the ECtHR had overstepped its mandate on migration, the Council of Europe’s Secretary General, Alain Berset, dismissed their concerns outright. “No judicial body should be subject to political pressure,” he declared. The implication was clear: the ECtHR sits above democratic scrutiny; its authority, derived from moral principle rather than electoral consent, is to be accepted without debate. 

A key turning point came in 2023, when the ECtHR intervened, via Rule 39, to block the UK’s so-called “Rwanda plan”, which would send certain asylum seekers and illegal migrants to Africa for processing. Just hours before the first flight was due to depart, a single judge in Strasbourg issued an emergency injunction that grounded it. Whatever one’s opinion of the policy, the episode raised a profound constitutional question: should an unelected foreign judge have the power to overturn a decision approved by a sovereign parliament?

The debate has only intensified since. Both the Conservatives and Nigel Farage’s Reform UK have pledged to withdraw from the Convention. Even Keir Starmer, while rejecting outright withdrawal, has suggested the Government will review how international human rights law, including the ECHR, is interpreted by British courts — particularly to stop unsuccessful asylum seekers from blocking deportation.

Leaving the Convention would not, by itself, solve the complex problem of illegal migration. But across Europe, elected governments — in Poland, Italy, Hungary, the Netherlands and elsewhere — have often found themselves constrained when trying to respond to growing public concern over the phenomenon which has become one of the defining political issues of our time. What we are witnessing is not simply a technical legal dispute, but a clash between democracy and a transnational judiciary that increasingly sees itself as a moral authority above politics.

The European Court of Human Rights has, over the past two decades, engineered what can be described as a “quiet power grab”. Through a series of legal innovations and doctrinal reinterpretations, the Court has progressively widened its jurisdiction, often beyond what member states ever agreed to.

One of the Court’s controversial doctrines is that of extraterritorial jurisdiction — the idea that the ECHR applies even outside a state’s borders. This instrument has allowed the Court to extend its reach into foreign territory and even international waters. In the case of Hirsi Jamaa and Others v. Italy, for instance, the Court ruled in 2012 that Italy could not intercept migrants in the Mediterranean and return them to Libya, despite the operation taking place outside Italian territory. The result was a de facto outlawing of “pushbacks”, which is a core component of border enforcement. In practice, the judgment meant that states could no longer prevent illegal entrants from reaching their shores to lodge asylum claims, no matter the operational or humanitarian cost.

Another key development concerns the doctrine of non-refoulement — the prohibition on returning individuals to countries where they may face serious harm. Though not explicitly mentioned in the Convention, the ECtHR has expanded this principle far beyond its original postwar intent. In several cases, the Court has ruled that even transfers to other EU countries may be unlawful if conditions there are deemed inadequate. It has also insisted that each deportation must be subject to an “individualised assessment” of risk — an administrative nightmare that renders mass removals practically impossible. National security considerations are given almost no weight: even individuals deemed dangerous cannot be expelled if they might face mistreatment abroad.

Finally, there is Article 8 of the Convention — the “right to respect for private and family life”. Once a narrowly defined protection of home and correspondence, it has become a catch-all provision invoked to prevent deportations of convicted criminals and illegal immigrants. The Court has repeatedly ruled that deportations must be halted if an offender has established a family life in the host country, however tenuous. This has led to an avalanche of cases in which serious offenders — from violent criminals to drug traffickers — have successfully appealed against removal on Article 8 grounds. British tabloids have gleefully reported cases where criminals were able to avoid deportation because their child liked chicken nuggets or questioned their gender. But behind the tabloid absurdity lies a serious constitutional reality: an international court has assumed the authority to decide who may remain within a nation’s borders.

The Court’s defenders insist that it merely applies the principles that states themselves agreed to uphold. Yet this is no longer credible. The ECtHR has, by its own admission, embraced the doctrine of the Convention as a “living instrument” — meaning that its provisions must be interpreted in light of “present-day conditions”. In practice, this gives judges carte blanche to reinterpret and expand the meaning of rights according to contemporary political sensibilities. What began as a limited postwar charter has become an evolving moral code enforced by an unelected elite with a de facto veto power over national law. 

The ECHR, however, is only the tip of the iceberg. The Court operates within a wider ecosystem of judicial and technocratic power that extends far beyond Strasbourg. Its rulings are cited by the European Court of Justice, domestic supreme courts and international bodies, and often transcribed into national law. National judges, NGOs and human-rights lobbies use its jurisprudence to influence policymaking. An entire regime of judicialised governance has emerged — what legal scholar Ran Hirschl has called juristocracy: rule by judges.

Over the past half-century, vast areas of public life once decided through political debate — from migration and security to macroeconomic policy — have been transferred from parliaments to courts, tribunals and independent authorities. This process of depoliticisation was a deliberate response by political elites to the growing assertiveness of mass democracy. As voting rights expanded in the late 19th and 20th centuries, Europe’s ruling classes feared that popular majorities might use their new power to challenge the economic and social order. The solution was to create institutional checks — constitutional courts, independent central banks, and supranational treaties and institutions — that insulated key areas of governance from democratic contestation.

In the postwar decades, this model spread rapidly. Germany, Italy, France and Austria all established constitutional courts with the power to strike down legislation. Internationally, new bodies such as the ECtHR and the European Court of Justice emerged as guardians of a liberal order that placed “rights” and markets above popular sovereignty. Even Westminster-style systems like Britain eventually succumbed. In the Seventies and Eighties, political elites across the Anglosphere embraced judicialisation as a means of enforcing policies that might otherwise have faced public resistance.

Examples include the creation of independent monetary and pricing bodies, and the extensive use of quasi-autonomous non-governmental organisations (quangos) to implement policy at arm’s length from parliamentary control. The 1998 Human Rights Act, which incorporated the European Convention on Human Rights into UK law, epitomises the judicialisation trend. As Hirschl observed, “deference to the judiciary” served elite interests well: for example, it allowed governments to pursue controversial neoliberal economic and labour reforms while blaming unelected judges or independent bodies for their consequences.

The result is the system we inhabit today: a “constrained democracy” in which the forms of representation remain, but the substance of political choice has been hollowed out. Immigration policy, once the preserve of parliaments, has become the domain of judges interpreting “rights”. Economic and social policies are now dictated by international treaties and constitutional doctrines.

To criticise the ECtHR is not to oppose human rights, but to ask who defines them and by what authority. When “rights” are expanded indefinitely without democratic consent, they cease to be instruments of liberty and become tools of control. Governments, meanwhile, though nominally constrained by such courts, often welcome their interference, which allows them to outsource politically costly decisions to unelected judges — to pursue or preserve policies they privately support but dare not defend — or simply to evade responsibility for problems they are incapable of solving. This is why politicians’ condemnations of the ECHR, especially coming from the Conservative camp that so spectacularly betrayed the Brexit mandate while in power, ring so hollow.

The British public appears to sense this contradiction. While many citizens would probably agree that the ECHR’s authority has gone too far, polls suggest that a majority do not favour outright withdrawal from the Convention. Perhaps they intuitively understand that leaving the ECHR would make sense only as part of a broader project of political renewal — a re-democratisation of governance that restores the primacy of parliament and popular sovereignty. But such a project would require a political class that actually believes in democracy — something in short supply, in Britain and across Europe.

The European Convention on Human Rights is written, both into the Good Friday Agreement, and into the United Kingdom’s trade agreement with the European Union. No more than 50 Members of the last Parliament would have voted to withdraw from it. But I cannot understand why those who rejoice in that do so. In the last 10 years alone, the ECHR did not prevent the enactment of the Trade Union Act, or of the Covert Human Intelligence Sources (Criminal Conduct) Act, or of the Overseas Operations (Service Personnel and Veterans) Act, or of the Nationality and Borders Act, or of the Elections Act, or of the Strikes (Minimum Service Levels) Act, or of the National Security Act, or of the Public Order Act, or of the Online Safety Act, or of the Hate Crime and Public Order (Scotland) Act, or of the Police, Crime, Sentencing and Courts Act.

The ECHR will not save us from digital ID. It does not protect cash. It is not helping the Palestine Action defendants, nor will it help the hundreds arrested today. It does not preclude the Home Secretary from stripping people of their British citizenship, now without even having to tell them. It presented no obstacle to vaccine passports. It did nothing for Julian Assange. Most countries that subscribe to the ECHR already have identity cards. Thus defined, Keir Starmer is indeed a human rights lawyer. When Kemi Badenoch and Robert Jenrick were in office, then there was no section 35 order to prevent Royal Assent of the Hate Crime and Public Order (Scotland) Bill that banned nothing for which people were not already being arrested in England, complete with records of non-crime hate incidents on things like DBS checks.

Nothing that had largely been written by David Maxwell Fyfe ever did have anything to do with those of us who sought to strengthen families and communities by securing economic equality and international peace through the democratic political control of the means to those ends, including national and parliamentary sovereignty. Not the EU into which he castigated Anthony Eden for not having taken the United Kingdom at the start. And not the ECHR, either.

There was a reason why the ECHR’s incorporation into British domestic law was never attempted by any Labour Government until Tony Blair’s. It duly proved useless as civil liberties were shredded; it was the House of Commons that stopped the detention of people for 90 days without charge. And it duly proved useless as the poor, the sick and the disabled were persecuted on a scale and with a venom that had not been seen since before the War, if ever. That persecution continued into and as the age of austerity. Long before Brexit, Covid-19, or the invasion of Ukraine, even as Red Cross food parcels were distributed to our starving compatriots, human rights legislation was of only the most occasional use, if any. That has always been the intention.

In May 1948, the pompously self-styled Congress of Europe assembled in the Hall of Knights, in The Hague. Addressing that assembly, Winston Churchill called it “the Voice of Europe”. But in fact it was mostly made up of politicians who had recently been defeated at the polls, of the representatives of Royal and Noble Houses that had fairly recently been dispossessed at least in political terms, of the likes of Churchill who fell into both categories, and of people whose lives’ work was trying to delude themselves that so did they.

In the name of the order that had held sway for a century between the defeat of Napoleon and the First World War, the order to which the Reichsbürger would wish to return, their aim was very explicitly to check the social democracy that was sweeping Western Europe at the time. The material that they produced had that intention, and it has had that effect. Lo and behold, Blair had it written into British domestic law. And lo and behold, the body that he created for its enforcement, when it has not been sacking its black and disabled staff first, and when it has not been failing to find anything wrong with the Government’s handling of the Windrush scandal, played a key role in bringing down Corbyn. Not that he helped himself by backing down when he ought to have been fighting back. But “Equality and Human Rights”? What equality, exactly? Which human’s rights?