European Convention on Human Rights: 75th Anniversary

Lord Sandhurst Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, this is a timely debate and I am grateful to the noble Lord, Lord Alton, for securing it. I declare an interest as a member of Justice, and indeed a past member of its council for some years.

The European Convention on Human Rights is a significant document. It embodies important values, but, equally, important and legitimate criticisms can be made of the jurisprudence that the court has generated. What the United Kingdom should do now and in the future has become a legitimate question. The concerns that I will express in this speech go not to the convention itself but to its misapplication by the courts and the implications for our constitution.

The Strasbourg court has the task of defining convention rights in practice. In performing that task, the court has treated the convention as a living instrument. That is, of itself, not a term in the treaty. It has used that to alter the scope of rights to give effect to changes in social attitudes—matters which in the United Kingdom are generally best left to Parliament.

I will give some examples. In Scoppola v Italy (No. 3), the Strasbourg court declared the statute which barred serving prisoners from voting at elections to be incompatible with the convention. It seems startling that the electoral franchise is not a matter on which the representatives of the general body of citizens have any say. Another example is the recent extraordinary climate change decision in KlimaSeniorinnen v Switzerland, which the Swiss Parliament, unsurprisingly, voted to ignore.

Articles 8 and 10 have been used to gag the press. In the case of Al-Skeini, the House of Lords excluded claims against the Army because the victims had not been within the jurisdiction of the United Kingdom. Strasbourg overturned that decision, but I suggest that the parties to the convention never intended that it should apply to warlike operations carried out by member states in foreign jurisdictions. Strasbourg has expanded the range of the convention and interpreted it in ways well beyond anything envisaged when it was made.

Issues of public policy involve choices between competing considerations—that is the essence of government and legislation; it is what our Parliament is there to decide. But where do we go? We are on the horns of a dilemma. The constitutional effects of leaving the convention would be serious. The United Kingdom would likely be expelled from the Council of Europe, which I do not endorse. Withdrawal would put the United Kingdom in breach of the Good Friday agreement, written into the Northern Ireland Act 1998, and none of us would want that. The convention is also baked into the EU-UK Trade and Cooperation Agreement—the TCA. The United Kingdom denouncing the ECHR would be grounds for the EU to terminate the part of the TCA on law enforcement and judicial co-operation in criminal matters, which would be a serious problem for us all.

However, something must be done. At a minimum, we must look again at the Human Rights Act. It should be amended to mitigate the constitutional problems to which it gives rise—but that is for another speech.