European Convention on Human Rights: 75th Anniversary

Lord Hendy Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, it is a pleasure to follow my friend, the noble Lord, Lord Cashman. Like him, I pay tribute to the noble Lord, Lord Alton, for his very powerful opening.

In a long career at the Bar, I have had the privilege of taking 11 cases to the European Court of Human Rights and assisting on two others. I can assure the noble Lord, Lord Lilley, that the word “paradise” is not one that immediately comes to mind when addressing the 17 judges in that court. All the cases I have been involved in have been trade union cases, most of them concerning the right to strike. Your Lordships may wonder how the right to strike could be protected by the European convention. It is simple: the European court found that the right to strike was an inherent aspect of freedom of association and the right to form and to join a trade union for the protection of one’s interests, which is spelt out in Article 11. The court derived it not by a process of a living instrument but simply in accordance with the usual law on the interpretation of treaties—Article 31 of the Vienna Convention on the Law of Treaties.

The issue now on the right to strike is no longer whether it exists or is protected by the convention but the legitimacy of national restrictions on it. In the years that have followed its establishment in the European court nearly a quarter of a century ago, many cases have been won and many cases have been lost, but recently there have been some very disturbing decisions by the European court upholding severe restrictions on the right to strike. I mention without discussion Barış v Turkey, Humpert v Germany, Kaya v Turkey and Almaz v Turkey.

Whatever the reasons for this line of authorities over the last couple of years, my instinct today is that, save in the most egregious cases, trade unions should avoid applications to the European court in strike cases. But unlike the noble Lord, Lord Faulks, the fact that I do not like a judgment, or a line of judgments, does not detract by one iota from my wholehearted support for the European convention and the whole vital edifice of international law covering working life and beyond.

As the noble Lord, Lord Alton, pointed out, this architecture was built on the corpses of tens of millions of people in the Second World War. It begins before the United Nations declaration, with the International Labour Organization Declaration of Philadelphia in 1944 —then the UN declaration in 1948, ILO convention 87 in 1949, convention 98 in 1950, and the European convention, also in 1950. That post-war momentum carried on into the 60s, with the European charter on social rights in 1961 and the two international covenants in 1966.

These instruments are of course autonomous, but the jurisdiction each generates informs that of the others, so that there is a consistency in international human rights standards. Neoliberalism may have ended the post-war consensus, and Hayek is now more influential than Keynes, but litigators, legislators and judges have a duty to uphold, deploy and be guided by these crucial instruments of civilisation and, in particular, the European convention.