Tom Tugendhat is wrong about the ECHR
Sir Nicholas Mostyn writes on the Tory leadership hopeful's latest intervention
The following piece was written by Sir Nicholas Mostyn.
Tom Tugendhat has now thrown his hat into the ring for the Tory leadership contest. In sharp contrast to his position a couple of year ago he now joins the likes of Suella Braverman in saying that a government led by him could well leave the ECHR. In the Daily Telegraph on 25 July 2024 he said:
“If institutions [such as the ECHR] do not serve the British people and make it harder to control our own borders, then we will have to exempt ourselves from them, or leave their jurisdiction.”
Tugendhat does not say what alternative arrangements to protect human rights, if any, he would put in the ECHR’s place. Lord Bingham always had two questions to outright abolitionists. First: would you like to live in a country where the ECHR rights are not protected by law? Second: which ECHR rights would you specifically like to see abolished? It is hardly surprising that his recent interviewer, Jacob Rees-Mogg, did not put either question to him. It would be interesting to hear his answers. It would also be interesting to learn how he would deal with the entrenchment of the ECHR in a number of international treaties and similar arrangements, such as the Good Friday Agreement 1998, the devolution settlements of Scotland, Wales and Northern Ireland, and the EU-UK Trade and Cooperation Agreement of 30 December 2020 which formalised our departure from the EU.
The true objective of the abolitionists is not so much to abolish the rights – not even Dominic Raab sought to do so in his ill-fated Bill of Rights Bill – but to end the role of the European Court of Human Rights at Strasbourg. It has become a totemic issue for them – leave the “foreign court”.
In his dyspeptic article in the Spectator - Judgment call: the case for leaving the ECHR) - of 30 September 2023, Lord Sumption advances a rag-bag of largely specious reasons to get rid of the Strasbourg court. He says that because the court is the master of its jurisdiction “it can and does help itself to whatever additional powers and jurisdictions it likes” giving as his prime example he power to make an interim order under rule 39 of the Court’s rules[1]. That rule says:
“The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings.”
Lord Sumption suggests that this rule is ultra vires. He says:
“…the convention provides that state parties are bound only by the final decision of the Court in cases brought against them, but the ECHR has claimed the right to impose binding interim orders on state parties before the arguments have even been heard. It recently exercised this power to stop the first flights to Rwanda.”
This is utterly misconceived. Article 46 only says that:
“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”
This straight-forward provision plainly does not prevent the Court from including in its rules the power to make interim orders in exceptional circumstances to hold the ring pending the hearing of the case. No amount of imaginative interpretation could deduce such a prohibition from those words.
The concept of an interim measure is familiar and normal. It is the same as an injunction pending trial in a domestic case.
Interim measures are generally issued by the Strasbourg court only where a person faces a risk to their life or a risk that they may suffer torture or inhuman or degrading treatment or punishment, for example if they face expulsion to another country.
Such orders are of course legally binding in the sense that the Government has committed to observe the rulings of the Court.
The number of Rule 39 orders against the UK is tiny. Since 2017, the Court has received 660 requests for interim measures in UK cases, of which it granted 15 - around 2% of requests, or an average of two per year. In 2023, the Court issued only one Rule 39 order against the UK, concerning a removal to the United States[2].
An interim measure prevented the first deportation flight to Rwanda in June 2022 until the lawfulness of the policy had been finally determined by the UK Courts. Interim measures issued against the UK have also ordered the preservation of embryos pending resolution of a case concerning disputed consent for their use, and continuation of life-sustaining treatment for a baby, Charlie Gard, while the ECtHR considered his parents’ challenge to his doctors’ decision to end life support.
Yet the single interim order preventing the first deportation flight to Rwanda gave rise to what can only be described as hysteria in Government circles, leading to the Illegal Migration Act 2023 and the Safety of Rwanda Act 2024 each granting ministers the power to decide to disregard a rule 39 order issued in Strasbourg. Fortunately, with the change of Government we can apprehend that such unlawful and provocative powers will never be used, and will be in due course repealed.
Moving on from these spurious attacks on the Court’s powers Lord Sumption turns his attention to what he regards as an extravagantly impermissible interpretation of what he describes as “the notorious Article 8” which he says “ostensibly protects private and family life against the intrusions of the surveillance state”. He complains that the decisions have covered things like:
“immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, same-sex relationships, child abduction, the policing of public demonstrations, employment and social security rights, legal aid, planning and environmental law, noise abatement, eviction for non-payment of rent and much else besides.”
He implies that these interpretations of the terms of Article 8 are in conflict with the Vienna Convention on the Law of Treaties 1969. This provides that treaties are to be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, and suggests that this requires the ECHR to be interpreted with strict conservative formalism, reflecting what he asserts its framers in 1950 intended. He suggests that the legal, liberal, realists who have since treated the Convention as a living instrument to be interpreted in accordance with contemporary morals and standards of justice, are well out of order.
Lord Sumption implies that the Court’s judgments under that Article during the 75 years of its existence, condemning many aspects of state invasion of an individual's personal autonomy, violate the literal words of Article 8 itself.
He says:
“None of these radical developments is foreshadowed in the language of the convention. None of them is even a natural implication from its terms. None of them has been agreed by the signatory states. They are all extensions of the convention which rest on the sole authority of the Strasbourg Court. This is effectively a form of non-consensual legislation.”
This is, again, specious. The ECHR sets forth wide-ranging human rights, exemplified by Article 8. It established a Court to give citizens redress for any violation of those rights. It left the Court to determine the width and depth of those rights. The words of Article 8 could not have been more open-ended: “Everyone has the right to respect for his private and family life, his home and his correspondence”.
All this was agreed by the signatory states explicitly. None of it was the result of a power-grab by the Strasbourg Court.
If the Strasbourg Court had never been invented, and the terms of the Convention had been left to be interpreted solely by the domestic Courts, I suggest that that virtually identical decisions would have been made by UK judges in those cases where an invasion of an individual’s autonomy was alleged. Lord Sumption complains that the Court’s decisions are “a form of non-consensual legislation” and that:
“The Court is now much more than a judicial body. It is a great factory for making law, which has become a legislative and political authority for the whole of Europe. It is legislative because it claims and exercises the power to require state parties to modify their domestic law in accordance with its own views about what kind of laws a democracy ought to have. It is political because many of the issues which it decides are matters of political judgment on which states can legitimately differ.”
But this setup is exactly what was envisaged by the architects of the system in 1950 and by their successors in 1994 when the terms of the Court’s powers and procedures were completely rewritten. Moreover, the decisions that Lord Sumption suggests should not be made by a Court, but rather by politicians, are routinely made every day in England and Wales by the Administrative Court or the Family Division. Every day these Courts make decisions about what the law is, or should be, in relation to the great list of matters mentioned by Lord Sumption which I have set out above, and how they should be applied to the individual before the Court.
When the treaty was negotiated in 1948 -1950 there was a substantial body of opinion that wanted a supranational Court of Justice. Thus, the Congress of Europe held at The Hague from 8 to 10 May 1948 passed a resolution stating:
“The Assembly should make proposals for the establishment of a Court of Justice with adequate sanctions for the implementation of this Charter [of Human Rights], and to this end any citizen of the associated countries shall have redress before the Court, at any time and with the least possible delay, of any violation of his rights as formulated in the Charter. "
And so, the treaty established a supra-national court, to which every signatory state contributed a judge. The UK’s judges have always been jurists of great distinction. To describe such a court, established by British lawyers and politicians, and always containing a British judge, as a “foreign court” is, with respect, absurd.
[1] Articles 25, 26 and 27 all refer to the Court’s power to promulgate its procedural rules. The current rules are dated 28 March 2024, but the power has existed in virtually identical terms in previous iterations of the rules.