In March 2022, amid the world’s collective dismay over Russia’s brazen aggression against Ukraine, I witnessed an interesting scene unfold within the Council of Europe in Strasbourg: British delegates rose en masse in the plenary hall, delivering impassioned speeches in defence of the cherished principles of the rule of law and international order – principles emblematic of the Council’s founding mission. The expulsion of the Russian Federation followed, thrusting the Council into a rare moment of international relevance.
Fast forward three years, and Britain’s affiliation with the European Court of Human Rights (ECHR), the judicial arm of the Council, is once again debated both in the press and in parliament. Undeniably, Britain reserves the right to scrutinise the Court’s jurisdictional boundaries. But the question arises: would it be judicious to forsake the ECHR – a venture originally championed under the stewardship of Churchill – amid the looming threats to the rule of law and liberty on the continent? Moreover, can the UK’s morally commendable stance in solidarity with Ukraine withstand the scrutiny that would follow a departure from the Council? For to sever ties with the ECHR is, in effect, to withdraw from the Council of Europe entirely.
Things are far from rosy in Strasbourg. The troubling truth is that the Council of Europe finds itself mired in dysfunction and is often perceived as a mere ‘talking shop’. How do I know? Because I spent three years navigating its corridors as a political adviser to the Greek delegation in Strasbourg, from 2019 to 2022. It’s a world where bureaucracy reigns supreme, with lucrative salaries affording a comfortable lifestyle in the Alsatian city.
Yet, lurking beneath the façade of impartiality lies a palpable ideological bias. Preparatory reports shaping the discourse within the Parliamentary Assembly (PACE) – and, consequently, influencing ECHR judgments – often bear the imprint of this bias, as their ghost writers are not the MP rapporteurs who sign them, but the Council’s secretaries. This state of affairs is as much a condemnation of the complacent parliamentarians as it is of the Council employees who are ostensibly serving member states’ interests. Private conversations betray their ideological leanings –particularly on matters of immigration – with pronounced biases and, at times, an activist predisposition in decision-making processes; you might even spot some of them at NGO-sponsored events in Brussels or Strasbourg.
Beyond the confines of PACE, the selection process for ECHR judges reveals similar patterns of allegiance. NGOs exert significant influence, blurring the lines of impartiality and transparency. Judges are selected by a committee of PACE. Each country typically puts forward three candidates. The Strasbourg-based European Centre for Law and Justice has long warned of conflicts of interest revealed by the relationship between judges sitting at the ECHR and NGOs active before the Court. One recent report shows that 22 of the 100 judges who have sat since 2009 are former staff or directors of seven interconnected NGOs active at the Court. It found that 18 of them sat on 88 occasions during this period in cases involving the organisations with which they had previously worked.
Rather than severing ties with the ECHR, the United Kingdom should advocate for reform from within. As I recently proposed in a paper for the Henry Jackson Society, there are five key recommendations, reflecting a Burkean approach – advocating for careful and considered reform based on prudence, rather than radical measures, to safeguard institutional balance and judicial integrity.
First, judges must publish declarations of interest, including current or past affiliations with NGOs. This should be coupled with the ECHR ensuring transparency in its registry and the impartiality of its members via a public list of declarations. Furthermore, nomination criteria should prioritise substantial judicial experience while requiring full transparency regarding candidates’ affiliations. On a more practical level, PACE’s Judges Selection Committee should be given sufficient resources and time to thoroughly scrutinise candidates and broadcast interviews publicly, rather than holding them in camera. Finally, a collective exit by the UK, France, Germany, and Italy could be undertaken – at least temporarily – as a last resort, pending accession under a reformed court.
Crucially, this sentiment finds resonance not only within the EPP and ECR, the two main centre-right groupings in the European Parliament, but also among voices in the Labour Party and the European liberals. Change is possible. There is, after all, the precedent of the Brighton Declaration of 2012 and Protocol No.15, which introduced reforms including clarification on the subsidiarity principle and national margin of appreciation. In January, after four years of intense debate, the ECHR decided to establish a procedure for challenging its judges in cases of conflict of interest and to amend its controversial Article 28 of the Rules of Court. A unique opportunity now exists for the UK to lead a coalition of reform-minded states at a critical juncture in European politics.
In the words of François Mitterrand, politics is about the exercise and use of symbols. The Council and the Court embody such symbols, as evidenced by the events of March 2022. Growing frustration with judicial overreach and mounting immigration pressures across Europe has created a ripe moment for reform. By leading efforts rooted in subsidiarity and judicial transparency, the UK can both respond to domestic concerns over national sovereignty and reaffirm its role as a principled defender of human rights and the rule of law on the global stage. As the 1st Baron Lytton once said, true reform ‘is correction of abuses’. Leaving would be the easy way out.
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