The European Journal of International Law Vol. 28 no.

3
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The Value of the European Court

of Human Rights to the United
Kingdom
Merris Amos*

Abstract
National debates concerning the appropriate role of the European Court of Human Rights
(ECtHR) in the United Kingdom (UK) recently intensified with the suggestion by the gov-
ernment that the UK might leave the European Convention on Human Rights system. It has
been argued that a British Bill of Rights, to replace the current system of national human
rights protection provided by the Human Rights Act 1998, would provide better protection
than the ECtHR, making its role in the national system redundant. Claiming that the ECtHR
is legitimate and has an impact that is usually illustrated by the transformative power of
judgments more than 10  years’ old, have not provided a convincing answer to this claim.
In this article, rather than legitimacy or impact, the value of the ECtHR to the objective of
protecting human rights through law is assessed. Three different levels of value are identified
from the relevant literature and then applied to the judgments of the Court concerning the UK
from 2011 to 2015 to determine what has happened in practice. It is concluded that given
that the UK government’s objective remains to protect human rights through law, although
some types of value are now more relevant than others, overall the potential value of the
Court to the UK in achieving this objective is still clearly evident.

1 Introduction
The United Kingdom (UK) was one of the founding states of the Council of Europe, rat-
ifying the Statute of the Council of Europe in 1949 and the European Convention on
Human Rights (ECHR) in 1951. However, since accepting the right of individual peti-
tion to the European Court of Human Rights (ECtHR) in 1966, its relationship with

* Professor of Human Rights Law, Department of Law, Queen Mary University of London, London, United
Kingdom. Email: [email protected]. I am very grateful to Mario Perini for his comments on a much
earlier draft and to an anonymous reviewer for his or her very valuable input.

EJIL (2017), Vol. 28 No. 3, 763–785 doi:10.1093/ejil/chx044

764 EJIL 28 (2017), 763–785

the Council of Europe, the ECHR and, in particular, the ECtHR has, at many times,
been far from loving. In a lecture delivered in 1983, James Fawcett, president of the
European Commission from 1972 to 1981, found it necessary to defend the ECtHR,
which had recently found against the UK on corporal punishment in state schools
and on the criminalization of homosexual acts in Northern Ireland. He explained the
importance of human rights law to a country that has no ‘useful Bill of Rights’ and
also argued in favour of the Council of Europe, ‘an organisation which gets far less
publicity than it deserves for its contribution to the integration of Europe’.1
The coming into force of the Human Rights Act 1998 (HRA) in 2000, giving
further effect to the ECHR in national law, means that the UK now has much more
effective protection of human rights through law than it had in 1983.2 However, the
animosity towards the ECtHR, particularly when it finds against the UK on contro-
versial political issues, such as the blanket ban on prisoner voting, has not dimmed
and has only intensified in recent years. Nicholas Bratza, formerly the UK judge at the
ECtHR, has written of the ‘vitriolic’ and ‘xenophobic’ fury directed against the ECtHR
by the UK press, parliamentarians and members of government over the prisoner
voting judgments.3 Capitalizing on such sentiments, in the run up to the May 2015
general election, the Conservative Party published its proposals for changing human
rights law.4 In these proposals, it accused the ECtHR of ‘mission creep’ by expanding
the ECHR into new areas beyond what the framers of the Convention had in mind and
also of attempting to overrule ‘decisions of our democratically elected Parliament and
overturn the UK courts’.5 In order to remedy these problems, it proposed that the judg-
ments of the ECtHR no longer be binding over the UK Supreme Court or Parliament
and that it become an advisory body only.6 It stated that it would attempt to reach
agreement on these issues with the Council of Europe, and should such an agreement
not be forthcoming, the UK would withdraw from the ECHR.7
The Conservative Party won the May 2015 general election and formed a govern-
ment with a small majority in the lower house of Parliament, the House of Commons.
Almost immediately, the new government pledged that within 100  days it would
‘scrap’ the HRA and replace it with a British Bill of Rights that would alter the rela-
tionship between the UK and the ECtHR. This plan was soon dropped, and, more than

1
J. Fawcett, ‘Human Rights: Our Country in Europe’, Child and Co Oxford Lecture 1983, 10 March 1983.
2
On the Human Rights Act 1998, see generally M. Amos, Human Rights Law (2nd edn, 2014). Human
Rights Act 1998, 1998, c. 42 (HRA).
3
Bratza, ‘The Relationship between UK Courts and Strasbourg’, European Human Rights Law Review
(EHRLR) (2011/5) 505, at 505–506.
4
Conservative Party, Protecting Human Rights in the UK (2014), available at www.conservatives.com/~/
media/files/downloadable%20Files/human_rights.pdf.
5
Ibid, at 3.
6
Ibid, at 5.
7
Ibid, at 8. This threat was not repeated in The Conservative Party Manifesto 2015 (2015), at 60, available at
www.conservatives.com/manifesto. Only the UK Independence Party promised in its manifesto to remove
the United Kingdom (UK) from the jurisdiction of the European Court of Human Rights (ECtHR). See UK
Independence Party, Believe in Britain (2015), at 53, available at www.ukip.org/manifesto2015.
 The Value of the European Court of Human Rights to the United Kingdom 765

two years later, still nothing has happened, although it has been confirmed that it is
not a part of present plans for the UK to withdraw from the ECHR.8 While the govern-
ment’s case against the ECtHR is a limited one, generally only relying on judgments
affecting prisoners or foreign nationals and ignoring the impact of the vast majority
of ECHR jurisprudence, its position that a British Bill of Rights could offer equivalent
or better protection for human rights than the ECHR and the ECtHR, at the same time
as reclaiming national sovereignty,9 has not been effectively rebutted. Some have also
argued that there is actually no need for the ECtHR or the HRA since English common
law would develop to fill the gap should either be removed from the national legal sys-
tem.10 Judgments of the ECtHR utilized by its proponents to illustrate its impact and
transformative power in the UK are generally more than 10 years old,11 and there is
little discussion of its contemporary value.
Against this backdrop, the purpose of this article is twofold. First, to determine what
‘value’ the ECtHR potentially has for a contracting state, which is distinct from assess-
ing the Court’s impact at the national level or its legitimacy. The second purpose is to
apply this value framework to a five-year period of ECtHR jurisprudence concerning
the UK to determine what value the Court might have currently for a state such as the
UK.12

2  The Question of Value

In this article, the question of value is not approached as a philosophical question con-
cerning the utility of protecting human rights through law. The assumption is made
that protecting human rights through law is an important and worthwhile objective
that is also shared by contracting states, including the current UK government. In its
October 2014 proposals, the Conservative Party stated that protecting fundamental

8
See evidence given by former Lord Chancellor Michael Gove to Parliament’s European Union (EU) Justice Sub-
Committee, 26 January 2016, available at www.parliament.uk/business/committees/committees-a-z/
lords-select/eu-justice-subcommittee/news-parliament-2015/gove-hra-repeal-evidence/.
9
Ibid.
10
See, e.g., Elliott, ‘Beyond the European Convention: Human Rights and the Common Law’, 68 Current
Legal Problems (2015) 85; Sales, ‘Rights and Fundamental Rights in English Law’, 75 Cambridge Law
Journal (2016) 86. Such arguments have been dismissed as ‘optimistic’ and ‘naive’ by many. See,
e.g., Dickson, ‘Repeal the HRA and Rely on the Common Law?’, in K. Ziegler, E. Wicks and L. Hodson
(eds), The UK and European Human Rights (2015) 115; Clayton, ‘The Empire Strikes Back’, Public Law
(2015) 3.
11
See, e.g., Rights Info, 50 Human Rights Cases That Transformed Britain, available at http://rightsinfo.org/
infographics/fifty-human-rights-cases/. The Council of Europe’s Parliamentary Assembly recently pub-
lished a report on the impact of the ECHR on states parties. The most recent judgment concerning the UK
listed was ECtHR, S. and Marper v. United Kingdom, Appl. nos 30562/04 and 30566/04, Judgment of 16
January 2007. All ECtHR decisions are available at http://hudoc.echr.coe.int/.
12
Judgments from 2011 to 2015. This period of time has been chosen since the national human rights
protection, provided by the HRA, has now fully bedded down, making it possible to assess what additional
value is provided by the ECtHR.
766 EJIL 28 (2017), 763–785

human rights through law was a ‘hallmark of democratic society’ and ‘central to the
values of the Conservative Party’.13 Protecting human rights at the international level
is also an objective of the current government, whose policy is to ‘stand up for human
rights by working with international bodies and priority countries ... because a safer,
more prosperous world is in the UK’s national interest’.14
What is examined in this article is the value to the objective of protecting human
rights through law of having an extra layer of human rights law protection above that
which is provided at the national level – which, in the case of the UK, is the HRA (or any
future British Bill of Rights). Asking what value the ECtHR has in this context is a dif-
ferent question from asking whether or not the ECtHR has an ‘impact’ at the national
level15 or if the Court is ‘legitimate’,16 and the answer can provide a very different way
of looking at the same facts. To estimate the value of the Court to a contracting state is
to assess its worth, desirability or utility to the achievement of a particular objective –
which, in this case, is the protection of human rights through law. The ECtHR clearly
has an impact with effects felt in the UK, and often elsewhere, whenever it hands down
a judgment. But merely considering this impact, without considering the value of the
impact to the government’s objective of protecting human rights through law, means
that any ensuing debate about the judgment is missing this additional evaluative ele-
ment and is therefore not as rich as it might be. In short, while many of the same
effects will be discussed, the question of value allows an additional, and often differ-
ent, perspective to also be considered.
For example, should the Court decide in a particular case that the UK has violated
the ECHR, this decision will generate a variety of impacts. The applicant will have
a judgment of the Court in his or her favour with which the UK will be obliged by
international law to comply. The judgment may clarify or expand relevant ECHR juris-
prudence for all contracting states. National human rights law, which is closely linked
to ECHR jurisprudence, may have to adjust to accommodate a new development.
Affording a remedy to the applicant may involve affording a remedy to a number of
other similarly placed potential applicants. If the subject matter of the judgment is
politically contested, the judgment may also give rise to a national backlash against
the ECtHR and human rights law generally. But if the value of the judgment to the
government’s objective of protecting human rights through law – nationally and
internationally – is considered alongside, or as an alternative, to simple ‘impact’, the

13
Conservative Party, supra note 4, at 5.
14
Foreign and Commonwealth Office, Policy Human Rights Internationally, available at www.gov.uk/
government/policies/human-rights-internationally.
15
See further H.  Keller and A.  Stone Sweet (eds), A Europe of Rights (2008); A.  Donald, J.  Gordon and
P. Leach, The UK and the European Court of Human Rights (2012), available at www.equalityhumanrights.
com/sites/default/files/documents/research/83._european_court_of_human_rights.pdf.
16
See further Kumm, ‘The Legitimacy of International Law: A  Constitutional Framework of Analysis’,
15 European Journal of International Law (EJIL) (2004) 907; Bellamy, ‘The Democratic Legitimacy of
International Human Rights Conventions: Political Constitutionalism and the European Convention on
Human Rights’, 25 EJIL (2014) 1019.
 The Value of the European Court of Human Rights to the United Kingdom 767

narrative is in some respects different. For example, a judgment against the UK might
have value, as well as impact, to a state that is intent upon protecting human rights
because it demonstrates that gaps in national human rights protection are filled by the
ECtHR. If the Court changes and develops ECHR jurisprudence in a particular area
for all contracting states, it may be valuable to improving international human rights
standards. At the national level, it could also have value if it prompts reform in an
area that has remained resistant to national initiatives including those sponsored by
the government.
The question of the value of the ECtHR must also be distinguished from the question
of its legitimacy, which has generated a significant amount of scholarship in recent
years.17 It has been suggested that a judgment of a court such as the ECtHR is more
likely to be considered legitimate if those affected have had a say in it, either directly
or via their elected representatives; if it reflects shared beliefs; or if it has been made
by an expert and authoritative person or institution.18 The value of a judgment to the
objective of protecting human rights is very different. For example, a judgment of the
Court in favour of a state and in agreement with that state’s national legislature and
the highest national court is likely to be perceived by many as legitimate for all of the
above reasons. It might even be argued that the judgment actually has no impact in
such circumstances. Considering the judgment from the perspective of value provides
a more detailed picture. The individual applicant has had the opportunity to have his
or her claim determined by a court that is independent of national political pressures.
While the judgment may have provided no advancement in human rights law at the
national level, it may have implications for the future acts of other contracting states,
particularly if the margin of appreciation was engaged. And confirmation from an
international court that national law is in accordance with the ECHR has a special
unique value in itself.
However, despite the importance of the question, estimating value where there is no
obvious monetary value is notoriously difficult. Andrew Williams has observed that
when it comes to the ECtHR, we lack a ‘clear cost-benefit analysis’,19 and, as Oona
Hathaway states, the claim that international law matters was until recently, ‘so widely
accepted among international lawyers that there have been relatively few efforts to
examine its accuracy’.20 It is not the purpose of this article to develop a cost-benefit

17
See, e.g., Bellamy, supra note 16; K. Dzehtsiarou, European Consensus and the Legitimacy of the European
Court of Human Rights (2015); Zysset, ‘Searching for the Legitimacy of the European Court of Human
Rights: The Neglected Role of Democratic Society’, 5 Global Constitutionalism (2016) 16; Oomen, ‘A
Serious Case of Strasbourg-Bashing? An Evaluation of the Debates on the Legitimacy of the European
Court of Human Rights in the Netherlands’, 20 International Journal of Human Rights (2016) 407.
18
Amos, ‘The Dialogue between United Kingdom Courts and the European Court of Human Rights’, 61
International and Comparative Law Quarterly (2012) 557, at 575–576.
19
Williams, ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’, 24
EJIL (2013) 1157, at 1174. See also Cassel, ‘Does International Human Rights Law Make a Difference?’,
2 Chicago Journal of International Law (2001) 121, at 131; K. Alter, The New Terrain of International Law
(2014), at 341, 343, 363.
20
Hathaway, ‘Do Human Rights Treaties Make a Difference?’, 111 Yale Law Journal (YLJ) (2002) 1935, at
1938.
768 EJIL 28 (2017), 763–785

analysis or to test the accuracy of the claim that international law really does matter.
Instead, existing scholarship concerning the actual and potential value of interna-
tional law – in particular, international human rights law – is utilized to assemble a
value framework. While all of the different types of value that international human
rights law and courts might have are rarely considered together, many authors have
tested one or two types of value in their research, and from this, three broad categories
of value can be identified. In the following paragraphs, these are separated into levels.
First, there is value identified at the individual level where the ECtHR has an impact
on the individual. Second, there is value at the global level where the ECtHR operates
as a setter of minimum standards or strives to achieve solutions to particular global
problems. Third, there is a value at the national level where the ECtHR has relevance
for national law, policy or practice or the operation of national institutions.

3 The Value of the ECtHR

A  Value at the Individual Level
The individual justice model utilized by the ECtHR enables victims, once domestic
remedies have been exhausted, to bring their application to the ECtHR to argue that
their state has breached their rights under the ECHR. Victims are able to determine
for themselves whether or not they want to complain ‘with no State or third party to
do so on their behalf ’.21 Philip Leach observes that it is important not to forget this
individual human aspect:
We owe it to the victims of State violence, and of domestic violence, to the victims of human
trafficking and those subjected to extraordinary rendition, to people languishing in inhuman
prisons, and many others, to ensure that we maintain a strong and independent human rights
court for the whole of Europe.22

Furthermore, it is likely that feelings of justice and acceptance of the national decision
are enhanced where an application is made to the ECtHR, regardless of the outcome.
Second, the ECtHR grants to the disenfranchised and those marginalized and pos­
sibly even excluded from mainstream society an opportunity to have their human
rights claims considered by a specialist court, independent of national political pres-
sures at minimal cost, albeit with considerable delay. Allen Buchanan and Russell
Powell observe that it is entirely possible for well-functioning constitutional democra-
cies to fail to provide ‘equal protection of the human rights of some of their citizens’.23

21
Greer and Wildhaber, ‘Revisiting the Debate about “Constitutionalising” the European Court of Human
Rights’, 12 Human Rights Law Review (2013) 655, at 666.
22
Leach, ‘What Is Justice? Reflections of a Practitioner at the European Court of Human Rights’, (4) EHRLR
(2013) 392, at 400. See also Greer and Wildhaber, supra note 21, at 678; Cassel, supra note 19, at 122.
23
Buchanan and Powell, ‘Constitutional Democracy and the Rule of International Law: Are They
Compatible?’, 16 Journal of Political Philosophy (2008) 326, at 330. See also O’Cinneide, ‘Human Rights
Law in the UK: Is There a Need for Fundamental Reform’, EHRLR (2012/6) 595, at 595; Dothan, ‘In
Defence of Expansive Interpretation in the European Court of Human Rights’, 3 Cambridge Journal of
International and Comparative Law (2014) 508, at 509; Bellamy, supra note 16, at 1039.
 The Value of the European Court of Human Rights to the United Kingdom 769

B  Value at the Global Level

Many have written of the history of the ECtHR and how it was established to solve
pressing global problems – in essence, to prevent a recurrence of the atrocities occur-
ring in World War II and as a ‘safeguard against tyranny and oppression’.24 According
to Armin von Bogdandy and Ingo Venzke, in more recent times, international courts
are still geared towards helping to solve some of the ‘most pressing global problems’,
including the maintenance of peace. To this end, they are able to overcome problems
in cooperation and ‘mend failures of collective action’.25 Hathaway observes that sys-
tems such as that provided by the ECHR have positive benefits for all states:
[H]uman rights treaties and the process that surrounds their creation and maintenance may
have a widespread effect on the practices of all nations by changing the discourse about and
expectations regarding those rights ... All countries, having received the message transmitted
by the creation and widespread adoption of a treaty, are arguably more likely to improve their
practices or at least less likely to worsen them than they would otherwise have been.26

In addition to helping to solve global problems, the ECtHR also can highlight prob-
lems that have arisen in a contracting state that could escalate into conflict, either
internal or external, which may have repercussions for the people of that state and
possibly other contracting states. Laurence Helfer and Anne-Marie Slaughter conclude
that states committed to the rule of law at the national level are more law abiding at
the international level. Conversely, states wavering on their commitment to the rule of
law at the national level are likely to display difficulties with the rule of law at the inter-
national level, indicating to other contracting states that something is going wrong:
[S]tates committed to the rule of law domestically will be more law-abiding in the interna-
tional realm, through the projection or transferal of their domestic habits. Accustomed to self-
imposed constitutional constraints at home, constraints enforced by an independent judiciary,
they are more likely to accept the constraints of international law as enforced by an interna-
tional or supranational tribunal.27

The ECtHR also helps to set minimum standards across the 47 contracting states
of the Council of Europe as well as, indirectly, the 28 European Union (EU) member
states.28 Janneke Gerards states that it is really only an institution such as the ECtHR
that is able to ‘uniformly establish the meaning of fundamental rights and to define
a minimum level of fundamental rights protection that must be guaranteed in all the

24
Bates, ‘British Sovereignty and the European Court of Human Rights’, 128 Law Quarterly Review (2012)
382, at 385.
25
Von Bogdandy and Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority
and Its Democratic Justification’, 23 EJIL (2012) 7, at 8.
26
Hathaway, supra note 20, at 2021. See, e.g., the impact in Israel as noted by Borelli, ‘Domestic Investigation
and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the
European Court of Human Rights’, 46 Israel Law Review (2013) 369.
27
Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, 107 YLJ (1997–1998)
273, at 332.
28
Andreadakis, ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy:
A Reply to Andrew Williams’, 24 EJIL (2013) 1187, at 1189.
770 EJIL 28 (2017), 763–785

States of the Council of Europe’.29 For example, at the global level, the UK has a much
better chance of dealing with like-minded states and has an external and neutral ref-
erence point – the ECHR, as enforced by the ECtHR – which can be appealed to rather
than national guarantees or national perspectives that are vulnerable to the accusa-
tion of cultural bias.30
Finally, at the global level, the ECtHR has played a role in scrutinizing the actions
of other international organizations such as the institutions of the EU, the United
Nations and the International Criminal Court. This is an important function of the
ECtHR, which might not otherwise occur.31 Its work is also an inspiration to other
global and regional human rights institutions. For example, Brice Dickson predicts
that, despite the EU Charter being a more modern human rights instrument than the
ECHR, the Court of Justice of the European Union will eventually take its lead from
the ECtHR.32

C  Value at the National Level

Most scholarship is directed at examining the value of the ECtHR at the national level.
Such is the volume of the literature, that it is helpful to break it down into two over-
arching types of value. First are the values that can be grouped together as ‘static’
where the ECtHR essentially operates as a safety net against national acts in violation
of the ECHR. Here, the claim is that its mere existence is a disincentive for national
institutions, particularly governments, to act incompatibly with the ECHR. Where
such incompatible acts occur, the ECtHR can hold the national institutions to account
and prompt a reversal or modification to ensure compatibility. Second are the values
that can be grouped together as ‘dynamic’ where it is claimed that a judgment of the
ECtHR prompts the improvement of existing laws, policies or practices to ensure com-
pliance with the ECHR or where it might even prompt entirely new laws, policies or
practices.
These two types of value come to fruition in the same ways, either through a
direct impact on the contracting state’s institutions via international law, including
the obligation imposed by Article 46 of the ECHR to abide by the judgment of the
ECtHR in cases to which they are parties, or via an indirect impact through empow-
ering national courts. Both types of value are explained in more detail in the follow-
ing sections.

29
Gerards, ‘The Prism of Fundamental Rights’, 8(2) European Constitutional Law Review (ECLR) (2012)
173, at 184–186. See also Dzehtsiarou and Lukashevich, ‘Informed Decision-Making: The Comparative
Endeavours of the Strasbourg Court’, 30 Netherlands Quarterly of Human Rights (NQHR) (2012) 272, at
273–274.
30
Bellamy, supra note 16, at 1032.
31
See further, Andreadakis, supra note 28, at 1189; Ryngaert, ‘Oscillating between Embracing and
Avoiding Bosphorus: The European Court of Human Rights on Member State Responsibility for Acts of
International Organisations and the Case of the EU’, 39 European Law Review (2014) 176, at 190.
32
Dickson, ‘The EU Charter of Fundamental Rights in the Case Law of the European Court of Human
Rights’, EHRLR (2015/1) 27, at 40. Charter of Fundamental Rights of the European Union, OJ 2012 C
326.
 The Value of the European Court of Human Rights to the United Kingdom 771

1  Static Value at the National Level

In the scholarship, it is asserted that the ECtHR plays a role in relation to three ‘static
values’, essentially acts that preserve the status quo in a contracting state. First, the
existence of the ECtHR and its jurisprudence can act as a strong disincentive where
states are contemplating a possible breach of ECHR rights.33 The disincentive can
arise as a result of successful litigation before the Court against that state, or a judg-
ment concerning another state can indicate that a similar course of action will result
in a finding of violation. No state is above the temptation to violate ECHR rights, as
Buchanan and Powell note: ‘[I]n cases of perceived dire national emergency, such as
war and terrorist attacks, every constitutional democracy is at risk for unjustifiably
infringing civil rights generally, not just those of minorities.’34
Second, the ECtHR can hold a state accountable for its acts that are incompat-
ible with ECHR rights, even if this does not prompt more widespread change at the
national level. Williams observes that the Court operates as a ‘check on the outrages
of government which are not or cannot be challenged by the domestic courts’.35 It
is independent from political authorities and ‘political modes of dispute resolution’
and has demonstrated that it is willing to ‘decide against governments in big cases’.36
Egbert Myjer states that the independence of the ECtHR from national institutions
is key – it does not ‘look at the case with the eyes of a national judge who is a prod-
uct of national traditions’.37 It does not face the ‘kind of political and legal pressure
that domestic judges do’.38 Dia Anagnostou and Alina Mungiu-Pippidi observe that
contracting states ‘eventually adopt some measures, even if token and minimal, in
response to most of the ECtHR’s adverse judgments against them’.39
Finally, Karen Alter concludes that a judgment of the ECtHR can help a government
maintain the status quo in the face of pressure for change. International courts, can ‘co-
opt governments, providing legal rulings that governments can use to deflect blame and
overrule the arguments of domestic opponents’.40 Enduring debates can be put to rest
with the Court introducing a ‘finality to disagreements about what the law means’.41

2  Dynamic Value at the National Level

‘Dynamic value’ is different to static value in that a judgment of the ECtHR can facili-
tate a process of change and progress. It has been argued that states may be prompted

33
Alter, supra note 19, at 23.
34
Buchanan and Powell, supra note 23, at 330.
35
Williams, supra note 19, at 1184.
36
Helfer and Slaughter, supra note 27, at 313.
37
Myjer, ‘The Success Story of the European Court: The Times They Are a – Changin’, 30 NQHR (2012)
264, at 270.
38
Cali, ‘The Purposes of the European Human Rights System: One or Many?’, EHRLR (2008/3) 299, at
302. See also Alter, supra note 19, at 9.
39
Anagnostou and Mungiu-Pippidi, ‘Domestic Implementation of Human Rights Judgments in Europe:
Legal Infrastructure and Government Effectiveness Matter’, 25 EJIL (2014) 205, at 206.
40
Alter, supra note 19, at 21.
41
Ibid., at 29.
772 EJIL 28 (2017), 763–785

by a judgment to improve existing laws, policies and procedures in order to comply

with the ECHR. Or the jurisprudence of the Court might encourage the adoption of
entirely new laws, policies and procedures. As above, such values can be realized as a
result of a judgment against that particular contracting state or another contracting
state. The potential of international courts as agents of change is the key finding of
Alter in her book The New Terrain of International Law:
ICs [International courts] are new political actors on the domestic and international stage.
Their international nature allows ICs to circumvent domestic legal and political barriers and
to create legal change across borders. Their legal nature allows ICs to provoke political change
through legal reinterpretation and to tap into diffuse support for the rule of law and pressure
governments. Their legal and international nature allows litigants to harness multilateral
resources and to knit together broader constituencies of support.42

Similarly, von Bogdandy and Venzke note that the judgments of an international court
can achieve outcomes in the collective interest that the normal political process ‘has
been unable to deliver’.43 A judgment of the ECtHR can be an important focus point for
non-governmental organizations (NGOs) and others lobbying for a particular change.
Douglass Cassel observes that the international articulation of human rights norms has
‘reshaped domestic dialogues in law, politics, academia, public consciousness, civil soci-
ety and the press’.44 According to Helfer and Slaughter, where individuals of a state are
mobilized in support of the judgment of a supranational tribunal, ‘compliance with that
judgment becomes less a question of ceding sovereignty than of responding to constitu-
ent pressure’, and ‘sovereignty becomes inextricably interwoven with accountability’.45
It is also claimed that the living instrument approach utilized by the ECtHR ensures
that the now very dated ECHR can be applied in new ways to respond to new threats
to human interests.46 Nicolas Bratza maintains that the ECtHR keeps track of devel-
opments across the 47 contacting states so as to ensure its jurisprudence keeps pace
with, but does not ‘leap ahead of, societal changes within Europe’.47 States that may
lag behind are not given a choice but must keep pace with developments forming
a ‘consensus’ in the other 47 contracting states. It is not only other states that the
ECtHR keeps pace with but also developments at the international level, taking into
consideration the EU and the UN perspective, for example.48

4  The Value of the ECtHR to the UK

This summary of the relevant scholarship demonstrates that the work of the ECtHR
can be of value to a contracting state at a number of different levels, assuming it is

42
Ibid., at 5. Simmons reaches the same conclusion in relation to treaty commitments rather than the over-
sight of an international court. See B.A. Simmons, Mobilizing for Human Rights (2009), at 8.
43
Von Bogdandy and Venzke, supra note 25, at 24.
44
Cassel, supra note 19, at 122.
45
Helfer and Slaughter, supra note 27, at 388.
46
Bratza, ‘Living Instrument or Dead Letter: The Future of the European Convention on Human Rights’,
EHRLR (2014/2) 116, at 118–119.
47
Ibid., at 124. See also Dzehtsiarou and Lukashevich, supra note 29, at 273–274.
48
Costa, ‘On the Legitimacy of the European Court of Human Rights’ Judgments’, 7 ECLR (2011) 173, at 178.
 The Value of the European Court of Human Rights to the United Kingdom 773

genuinely committed to the protection of human rights through law. However, the
scholarship also indicates that the value of the ECtHR to each contracting state will
be different depending on what is happening at the national level at that particular
point in time. National law and politics can change, and values not at the fore at pres-
ent might come to have greater relevance, particularly if national human rights pro-
tection veers away from utilizing the ECHR and the jurisprudence of the Court as a
benchmark.
The second purpose of this article is to apply the value framework set out above to
the judgments of the Court concerning the UK from 2011 to 2015 to test the claims
made and to determine what specific value the Court now has for the UK. While the
various types of value identified by scholars may all be reflected in the experience of
some contracting states, is it correct to claim that the ECtHR still has value for the UK,
a state that continues to have relatively strong national human rights protection, an
independent judiciary and a commitment to democracy and the rule of law? In short,
is the present UK government right to argue that the UK no longer needs the Court to
continue to protect human rights?

A  Value at the Individual Level

In 2015, 575 applications against the UK were allocated to a judicial formation,
and 720 were allocated in 2014.49 In 2015, 13 judgments were delivered concern-
ing the UK, with four judgments finding at least one violation and nine judgments
finding no violation.50 Also in 2015, 136 interim measures sought under Rule
39 against the UK were refused.51 It is not true, therefore, to state that individu-
als from the UK are no longer interested in applying to the ECtHR or that there is
complete satisfaction with, or access to, the human rights remedies available at the
national level. Furthermore, there are still violations found on the part of the UK
by the ECtHR.
In addition to the figures, it is important to consider the substance of the applications
made. While it is often represented that the HRA now affords human rights remedies
to all at the national level, this is not actually the case in relation to some claimants.
Over the last five years, a number of successful applications have been brought to the
ECtHR by the families of those who died during ‘The Troubles’ in Northern Ireland.
These claims are not possible under the HRA since it has been held by the House
of Lords (now the UK Supreme Court) that the HRA only applies in those instances
where the death occurred after 2 October 2000, the date on which the HRA came into

49
ECtHR, Analysis of Statistics 2015 (2016), available at www.echr.coe.int/Documents/Stats_analy-
sis_2015_ENG.pdf at page 60.
50
ECtHR, Violations by Article and Respondent State 2015 (2016), available at www.echr.coe.int/Documents/
Stats_violation_2015_ENG.pdf.
51
Here the applicants were seeking interim protection under Rule 39 against expulsion from the UK prior
to the determination of their application by the ECtHR. ECtHR, Interim Measures by Respondent State and
Country of Destination 2015 (2016), available at www.echr.coe.int/Documents/Stats_art_39_02_ENG.
pdf.
774 EJIL 28 (2017), 763–785

force.52 In these applications, the ECtHR has always found a violation of Article 2.53 It
might also be that a claim is not possible under the HRA because it is precluded by a
particular interpretation of the HRA or of the Convention rights, which have not yet
been confirmed by the ECtHR. For example, the application in Hassan v. UK was not
possible under the HRA as it concerned the alleged ill-treatment of an Iraqi civilian by
the British armed forces in Iraq.54 At the time the claim was brought under the HRA,
it had been held by the House of Lords in its judgment in Al-Skeini v. Secretary of State
for Defence55 that the HRA had no application to such events since the victim was not
within the jurisdiction of the UK.56
Almost all of the applications brought against the UK in the last five years have
been brought by members of marginalized groups, including prisoners, disabled peo-
ple, welfare recipients, foreign nationals who have committed a crime and are facing
deportation, failed asylum seekers, Iraqi civilians, and those caught up in the crimi-
nal justice or family justice systems. Despite the ever-improving record of the UK, it is
important to note that in a number of these applications the ECtHR found at least one
violation of the ECHR.57

B  Value at the Global Level

Judgments of the ECtHR concerning the UK over the last five years have contributed
to various aspects of value at the global level outlined above. For example, in C.N. v
UK, the ECtHR held that the UK was in breach of Article 4 of the ECHR for failing to
have in place criminal laws penalizing forced labour and servitude, thereby address-
ing an important global problem and also setting a standard for other contracting
states to meet in this area.58 The Court’s numerous judgments concerning deporta-
tion and extradition from the UK over this period, while setting important common
standards, have also served to expose pressing human rights issues in other states.59

52
In re McKerr, [2004] UKHL 12, [2004] 1 WLR 807.
53
ECtHR, Case of McDonnell v. United Kingdom, Appl. no. 19563/11, Judgment of 9 December 2014; ECtHR,
Case of Collette and Michael Hemsworth v. United Kingdom, Appl. no. 5855/09, Judgment of 16 July 2013;
ECtHR, Case of McCaughey and Others v. United Kingdom, Appl. no. 43098/09, Judgment of 16 July 2013.
54
ECtHR, Case of Hassan v. United Kingdom, Appl. no. 29750/09, Judgment of 16 September 2014.
55
R. (Al-Skeini) v. Secretary of State for Defence, [2007] UKHL 26. The ECtHR held that the ECHR did apply
to the facts in ECtHR, Case of Al-Skeini v. United Kingdom, Appl. no. 55721/07, Judgment of 7 July 2011.
This was adopted by the UK Supreme Court in its judgment in R. (Smith) v. Secretary of State for Defence,
[2013] UKSC 41.
56
See also ECtHR, Case of Dillon v. United Kingdom, Appl. no. 32621/11, Judgment of 4 November 2014;
ECtHR, Case of Eweida and Others v.  United Kingdom, Appl. nos 48420/10, 59842/10, 51671/10 and
36516/10, Judgment of 15 January 2013.
57
See, e.g., Al-Skeini v. UK, supra note 55; ECtHR, Case of Betteridge v. United Kingdom, Appl. no. 1497/10,
Judgment of 29 January 2013; ECtHR, Case of McDonald v. United Kingdom, Appl. no. 4241/12, Judgment
of 20 May 2014.
58
ECtHR, Case of C.N. v. United Kingdom, Appl. no. 4239/08, Judgment of 13 November 2012. See also
ECtHR, Case of Othman (Abu Qatada) v.  United Kingdom, Appl. no.  8139/09, Judgment of 17 January
2012, where the ECtHR held that the admission of torture evidence was manifestly contrary to Art. 6
and to the ‘most basic international standards of a fair trial’ (at para. 267).
59
See, e.g., ECtHR, Case of Aswat v. United Kingdom, Appl. no. 17299/12, Judgment of 16 April 2013; ECtHR,
Case of H. and B. v. United Kingdom, Appl. nos 70073/10 and 44539/11, Judgment of 9 April 2013.
 The Value of the European Court of Human Rights to the United Kingdom 775

The clarification of the circumstances in which the ECHR has an extraterritorial effect
provided in the judgment of the Grand Chamber in Al-Skeini v. UK set the standard for
all contracting states on an important question of law.60 And, in a judgment in 2014
concerning secondary strike action, the ECtHR reached a different conclusion to the
European Committee on Social Rights and the International Labour Organization’s
Committee of Experts, noting that these ‘specialised international monitoring bodies’
have a ‘different standpoint, shown in the more general terms used to analyse the ban
on secondary action’.61
It is possible that if the UK were to withdraw from the ECHR, and, thereby, the juris-
diction of the ECtHR, these particular types of global value would continue to accrue
and the UK would benefit without making any contribution. The greatest risks would
be that the UK would find it very difficult to persuade other states to abide by interna-
tional human rights norms if it was not to do so itself62 and that the whole ECHR sys-
tem might collapse, or be considerably weakened, as a result.63 However, rather than
guessing at what might happen, an alternative approach to the question of global
value and the UK is to consider what role the UK plays in helping to shape the norms
formulated by the ECtHR – in other words, how does the UK contribute to the value of
the ECtHR at the global level?
Over the past five years, the judgments of the ECtHR increasingly have reflected
the growing influence of the UK courts. While there have been a number of types of
influence exerted,64 the most important when determining the UK’s contribution to
the global value of the ECtHR is where the UK courts have exerted a strong influence
and where a particular judgment by a UK court has made a significant contribu-
tion to the development of ECHR jurisprudence that has implications for all contract-
ing states.65 For example, in Jones v. UK, the claimants had issued proceedings in the

60
Al-Skeini v. UK, supra note 55. See also ECtHR, Case of Al-Jedda v. United Kingdom, Appl. no. 27021/08,
Judgment of 7 July 2011.
61
ECtHR, Case of National Union of Rail, Maritime and Transport Workers v.  United Kingdom, Appl.
no. 31045/10, Judgment of 8 April 2014, at para. 98.
62
Hillebrecht, ‘Implementing International Human Rights Law at Home: Domestic Politics and the
European Court of Human Rights’, 13 Human Rights Review (2012) 279, at 295.
63
Gerards, supra note 29, at 175–176. It is possible that the mere suggestion that the UK would leave the
ECHR gave support to similar sentiments in Russia, Poland and Hungary. In December 2015, the Russian
Parliament adopted a law allowing it to overrule judgments from the ECtHR. It is now possible for the
Constitutional Court to declare international court orders unenforceable in Russia if these contradict the
Constitution.
64
See further Amos ‘The Influence of British Courts on the Jurisprudence of the European Court of Human
Rights’, in R. McCorquodale and J. Gauci (eds), British Influences on International Law 1915–2015 (2016)
215.
65
Waters describes this as ‘norm export’. See further Waters, ‘Mediating Norms and Identity: The Role of
Transnational Judicial Dialogue in Creating and Enforcing International Law’, 93 Georgetown Law Journal
(2005) 487. A UK court can also assert a more moderate influence by identifying an area where a margin
of appreciation is appropriate. E.g., in ECtHR, Case of Animal Defenders International v. United Kingdom,
Appl. no. 48876/08, Judgment of 22 April 2013, the ECtHR, clearly influenced by the judgment of the
House of Lords, afforded the UK a margin of appreciation and found that its political broadcasting ban
was compatible with Art. 10 of the ECHR.
776 EJIL 28 (2017), 763–785

UK against the Kingdom of Saudi Arabia and servants and agents of the Kingdom
for various torts and torture that had occurred in Saudi Arabia.66 The UK House of
Lords had held that the State Immunity Act 1978 conferred immunity on all of the
respondents and that this was not incompatible with the right of access to the courts
conferred by Article 6.67 It was for the ECtHR to determine whether or not the grant
of immunity here was in breach of Article 6; in particular, whether the immunity
was proportionate to the legitimate aim pursued. This was an important case for all
contracting states given that the ECtHR was considering whether or not an exception
should be created for state immunity where civil claims for torture were made against
foreign state officials.
The judgment of the House of Lords prevailed, and the ECtHR concluded that there
was no violation of Article 6 by affording state immunity to both states and the ser-
vants and agents of the state. The strength of the influence of the judgment of the
House of Lords on the ECtHR was clear; the Court noting that it had ‘fully engaged with
all of the relevant arguments’ that its judgment was ‘lengthy and comprehensive’ and
that its findings were ‘neither manifestly erroneous nor arbitrary’. Furthermore, it
was impressed that other national courts had examined the conclusions of the House
of Lords and found these to be ‘highly persuasive’.68 Were the UK to leave the ECHR
system, such glowing references to its highest court would no longer be possible, and
its ability to influence the development of ECHR jurisprudence for all of the contract-
ing states, not only the UK, would be lost.

C  Value at the National Level

Reflective of the fact that most scholarship concerns the value of the ECtHR at the
national level, this is also the level at which the judgments of the Court might have
the greatest value to the UK. Considering the past five years of judgments, there is
evidence that the jurisprudence of the Court has acted as a disincentive to breach
the ECHR, has provided remedies to victims (without any further change) and has
also helped the UK government to maintain the status quo. However, over the past five
years, by comparison to other years, more dynamic change as a result of ECHR juris-
prudence has not been as frequent. Judgments falling into each type of national value
are examined in more detail in the following sections.

66
ECtHR, Case of Jones and Others v. United Kingdom, Appl. nos 34356/06 and 40528/06, Judgment of 14
January 2014.
67
Jones v. Saudi Arabia, [2006] UKHL 26, [2007] 1 AC 270.
68
Ibid. at para. 214. Other examples from 2011–2015 include: ECtHR, Case of Al-Khawaja and Tahery
v. United Kingdom, Appl. nos 26766/05 and 22228/06, Judgment of 15 December 2011; ECtHR, Case
of Austin and Others v.  United Kingdom, Appl. nos 39692/09, 40713/09 and 41008/09, Judgment of
15 March 2012 [Austin v.  UK]; ECtHR, Case of Babar Ahmad v.  United Kingdom, Appl. nos 24027/07,
11949/08, 36742/08, 66911/09 and 67354/09, Judgment of 10 April 2012; ECtHR, Case of
M.M. v. UK, Appl. no. 24029/07, Judgment of 13 November 2012; McDonald v. UK, supra note 57 (but
only the judgment of Baroness Hale in the UK Supreme Court in R. (McDonald) v. Kensington & Chelsea
Royal London Borough, [2011] UKSC 33).
 The Value of the European Court of Human Rights to the United Kingdom 777

1  A Disincentive to Act Contrary to ECtHR Jurisprudence

Determining what disincentive to act contrary to the ECHR is generated by the
judgments, or what potential there is for an adverse judgment, from the ECtHR is
not an easy task, given that there might be a number of explanations for a course
of action on the part of the legislature or public authority.69 In some instances, it is
possible to discover a clear link. For example, in training, police forces throughout
the UK are informed of relevant judgments of the ECtHR, and these can be found
throughout the standards of professional practice set by the College of Policing.70
The judgment in Austin v. UK is specifically referred to in guidance concerning
policing demonstrations.71 Judgments of the ECtHR are on occasion referred to in
parliamentary debates and by parliamentary committees, and the disincentive to
take particular courses of action is often clearly spelled out.72 A  recent illustra-
tion is the passage of the Investigatory Powers Bill that was introduced to the UK
Parliament on 1 March 2016 and has now passed all of its parliamentary stages.73
In short, the Bill concerns the interception of communications and the acquisi-
tion and retention of communications data. Unusually, the Bill was accompanied
by an ECHR memorandum prepared by the sponsoring government department.74
The memorandum contains specific references to relevant judgments of the ECtHR,
particularly the need to address the ‘foreseeability and compatibility with the rule
of law requirements of Article 8’,75 and it is stated that the Bill is in compliance
with the minimum safeguards that the ECtHR holds must exist within the legal
framework governing the interception of communications.76 While there may be
reasonable disagreement with the Home Office’s assessment that the Bill is fully
compliant with the ECHR, the jurisprudence of the ECtHR on these issues is clearly
operating as a disincentive to the acquisition of much more sweeping powers for
the police and security services.77

69
Furthermore, in October 2015, the Ministerial Code was amended to remove the obligation on gov-
ernment ministers to ‘comply with the law including international treaty law and treaty obligations’.
Ministerial Code (2015), available at www.gov.uk/government/uploads/system/uploads/attachment_
data/file/468255/Final_draft_ministerial_code_No_AMENDS_14_Oct.pdf.
70
College of Policing, available at www.app.college.police.uk/.
71
Austin v. UK, supra note 68. ‘Public Order: Core Principles and Legislation’, College of Policing, available at
www.app.college.police.uk/app-content/public-order/core-principles-and-legislation/?s=human+rights.
72
The Parliamentary Joint Committee on Human Rights scrutinizes every government bill for its compat-
ibility with human rights. On the influence of human rights standards in Parliament, see further Norton,
‘A Democratic Dialogue? Parliament and Human Rights in the United Kingdom’, 21 Asia Pacific Law
Review (2013) 141.
73
Investigatory Powers Act 2016, 2016, c. 25.
74
Investigatory Powers Bill, available at www.gov.uk/government/uploads/system/uploads/attachment_
data/file/506171/ECHR_Memo_-_Introduction.pdf.
75
Ibid., at 4.
76
Ibid., at 8.
77
See also Report of the Joint Committee on the Draft Investigatory Powers Bill (2016), available at www.
publications.parliament.uk/pa/jt201516/jtselect/jtinvpowers/93/93.pdf at page 5.
778 EJIL 28 (2017), 763–785

On occasion, the disincentive effect of a specific judgment of the ECtHR is also made
clear. A high-profile example was the application of Abu Qatada, whose extradition to
Jordan to stand trial for terrorist offences had been found compatible with Articles 3
and 6 of the ECHR by the UK House of Lords.78 The ECtHR reached a different conclu-
sion, finding that there was a real risk of a flagrant denial of justice from the admis-
sion of evidence obtained by torture at his trial and that the proposed extradition was
therefore incompatible with Article 6.79 Despite the media furore stirred up by the
judgment,80 it is a testament to the disincentive effect of a judgment of the ECtHR
that the UK government did not extradite Qatada until more than 18 months after the
judgment once an agreement had been reached with Jordan that his trial would not
involve the use of evidence obtained by torture.81

2  A Remedy for the Applicant but No Wider Change

Given the individual application model utilized in the ECHR system, it is possible that an
application may result in a remedy for the applicant but that the specificity of the complaint
means that there is no need for more widespread change. For example, where applicants
have successfully established an unreasonable delay attributable to the state in violation
of Article 6, this can often result in a remedy for the applicant but not an overhaul of the
system that gave rise to the delay.82 Given that the assessment of a real risk of Article 3 ill-
treatment in a destination state where an applicant is to be removed from the UK is often
very fact specific, there are examples in the immigration and extradition context over the
last five years where the ECtHR has reached a different conclusion to the UK courts and
afforded a remedy to the applicant, but this has not prompted any further change.83
By contrast, in some instances, more widespread change really is necessary to com-
ply with the judgment but does not happen, although the ECtHR can still make the
state accountable and provide a remedy to the applicant. The numerous successful
applications brought by families seeking effective Article 2 compliant investigations
into deaths that occurred during ‘The Troubles’ in Northern Ireland have forced the
government to be accountable for its breaches of the ECHR, but these judgments have
not, to date, achieved a change in law, policy or practice.84

3  Helping to Maintain the Status Quo

In recent years, in the majority of its judgments concerning the UK, the ECtHR has
helped to maintain the UK status quo in addition to affording remedies to individual

78
R.B. (Algeria) v. Secretary of State for the Home Department, [2009] UKHL 10.
79
Othman v. UK, supra note 58.
80
See further Middleton, ‘Taking Rights Seriously in Expulsion Cases: A Case Study’, EHRLR (2013/5) 520.
81
He was acquitted of the offences in June 2014.
82
ECtHR, Case of Piper v. United Kingdom, Appl. no. 44547/10, Judgment of 21 April 2015.
83
ECtHR, Case of Aswat v. United Kingdom, Appl. no.17299/12, Judgment of 16 April 2013.
84
See, e.g., McDonnell v. UK, supra note 53 (death in 1996, investigation concluded in 2013); Hemsworth
v.  UK, supra note 53; McCaughey v.  UK, supra note 53. In January 2016, the Secretary of State for
Northern Ireland reported to Parliament that the government remained committed to establishing the
Independent Commission on Information Retrieval, but no agreement had yet been reached. Similar
problems affected the establishment of the proposed Historical Investigations Unit.
 The Value of the European Court of Human Rights to the United Kingdom 779

applicants with no widespread impact. There are a number of examples, but three
help to illustrate this particular value. First, in Austin v. UK, a judgment concerning
police ‘kettling’, which involves the lengthy containment of demonstrators,85 it was
argued that such action was incompatible with Article 5 of the ECHR, but the House
of Lords had concluded that Article 5 had no application to the facts.86 The ECtHR
agreed, noting that police forces in the contracting states face new challenges and
that Article 5  ‘cannot be interpreted in such a way as to make it impracticable for
the police to fulfil their duties of maintaining order and protecting the public’.87 It
concluded that the policing tactic adopted in this case was not a deprivation of lib-
erty within the meaning of Article 5.88 Within limits, police kettling of demonstrators,
now commonly employed to police large demonstrations, was essentially given the
green light, leading some commentators to ask why the protections of Article 5 had
been undermined.89
The second example is Animal Defenders International v. UK, where the applicant
complained to the ECtHR about the prohibition on paid political advertising imposed
by section 321(2) of the Communications Act 2003.90 Its claim under Article 10 had
been heard by both the High Court and the House of Lords, and both had refused to
find a violation.91 When the application to the ECtHR was made, many commentators
assumed, based on its preceding jurisprudence, that it would find a breach of Article
10.92 At the outset, the Grand Chamber held that the margin of appreciation was nar-
row given that the NGO was attempting to draw attention to matters of public interest
and ‘exercising a public watchdog role of similar importance to that of the press’.93 It
noted that in determining the proportionality of the interference, the ‘quality of the
parliamentary and judicial review of the necessity of the measure’ was of particular
importance as the legislative and judicial authorities were ‘best placed to assess the
particular difficulties in safeguarding the democratic order in their State’.94 It then
carefully considered all of the reviews of the prohibition that had taken place at the
national level, including that of the Parliament, the Parliamentary Joint Committee
on Human Rights and the Electoral Commission.95 Added to this were the judgments

85
Austin v. UK, supra note 68.
86
Austin v. Commissioner of Police, [2009] UKHL 5.
87
Austin v. UK, supra note 68, at para. 56.
88
As it stated, ‘so long as they are rendered unavoidable as a result of circumstances beyond the control
of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the
minimum required for that purpose’ (ibid., at para. 59).
89
See Oreb, ‘Case Comment: The Legality of “Kettling” after Austin’, 76 Modern Law Review (MLR) (2013) 735.
90
Animal Defenders v. UK, supra note 65. Communications Act 2003, 2003, c. 21.
91
R. (Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2008] UKHL 15.
92
See further Sackman, ‘Debating “Democracy” and the Ban on Political Advertising’, 72 MLR (2009)
475; Lewis and Cumper, ‘Balancing Freedom of Political Expression against Equality of Opportunity: The
Courts and the UK’s Broadcasting Ban on Political Advertising’, Public Law (2009) 89; Lewis, ‘Animal
Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?’, 77 MLR
(2014) 460.
93
Animal Defenders v. UK, supra note 65, paras 103–105.
94
Ibid., paras 108, 111; see also the observations made at para. 110.
95
Ibid., para 114.
780 EJIL 28 (2017), 763–785

of the High Court and the House of Lords.96 It concluded that the broadcasting ban
was not in violation of Article 10. Again, various UK commentators were dismayed,
leading some to ask whether or not the ECtHR had simply lost its nerve and was not
willing to find against the UK on this question.97
The third example, already discussed in the context of the UK courts making a con-
tribution to the development of ECHR jurisprudence for all contracting states, is Jones
v. UK.98 As noted above, this was an important judgment for all contracting states
given that the ECtHR was considering whether or not an exception should be created
to state immunity where civil claims for torture are made against foreign state offi-
cials. The judgment of the House of Lords prevailed, and the ECtHR concluded that
there was no violation of Article 6 by affording state immunity to both states and the
servants and agents of the state.99 Some commentators described the judgment as a
‘missed opportunity’.100

4  Improvements to Existing Laws, Policies and Practices

In contrast to its static value, the dynamic value of the ECtHR’s judgments to the UK
in recent years has been minimal. A very small percentage of the judgments of the
last five years have required improvements to law, policy or practice. One example is
Eweida v. UK, which concerned the protection of manifestations of religious belief in
the workplace.101 In order to raise the minimum standard of protection under Article
9, the Court had to revisit its own case law, which had demonstrated a reluctance to
find an interference with Article 9 rights in this context. It concluded that where an
individual complains of a restriction on freedom of religion in the workplace, rather
than holding that the possibility of changing jobs would negate any interference with
the right, the better approach would be to ‘weigh that possibility in the overall balance
when considering whether or not the restriction was proportionate’.102
Another example is the judgment in McDonald v. UK.103 In this case, the applicant
claimed that the decision of the local authority to reduce her care package and no lon-
ger fund a night-time carer, resulting in her wearing incontinence pads at night, was

96
Ibid., paras 115–116.
97
See Lewis, supra note 92.
98
Jones v. UK, supra note 66.
99
Other recent examples of judgments maintaining the status quo in the UK include: ECtHR, Case of Sher
and Others v. United Kingdom, Appl. no. 5201/11, Judgment of 20 October 2015 (anti-terror law); ECtHR,
Case of Fazia Ali v. United Kingdom, Appl. no. 40378/10, Judgment of 20 October 2015 (allocation of
public housing); ECtHR, Case of N.J.D.B. v. United Kingdom, Appl. no. 76760/12, Judgment of 27 October
2015 (refusal of legal aid); ECtHR, Case of Abdulla Ali v. United Kingdom, Appl. no. 30971/12, Judgment of
30 June 2015 (adverse publicity fair trial); ECtHR, Case of Magee v. United Kingdom, Appl. no. 26289/12,
Judgment of 12 May 2015 (detention without charge); ECtHR, Case of O’Donnell v. United Kingdom, Appl.
no. 16667/10, Judgment of 7 April 2015 (right to silence); ECtHR, Case of Hutchinson v. United Kingdom,
Appl. no. 57592/08, Judgment of 3 February 2015 (review whole life tariff).
100
Bindman, ‘A Missed Opportunity’, 164 New Law Journal (2014) 9.
101
Eweida v. UK, supra note 56.
102
Ibid., at para. 83.
103
McDonald v. UK, supra note 57.
 The Value of the European Court of Human Rights to the United Kingdom 781

in breach of Article 8. The UK Supreme Court had concluded by majority that Article
8 was not even engaged.104 The ECtHR, agreeing with the dissenting national judge,
Baroness Hale, reached the opposite conclusion, finding that the decision was capable
of impacting upon the applicant’s dignity and, therefore, her private life as protected
by Article 8.105 Although concluding that the decision was proportionate, balancing
personal interests ‘against the more general interest of the competent public author-
ity in carrying out its social responsibility of provision of care to the community at
large’,106 the fact that the decision was found to be within the scope of Article 8 was an
important development, meaning that public authorities making this type of decision
would have to carry out a proportionality assessment.107
There are also those areas where there might have been some motivation generated
to comply with ECtHR jurisprudence, but the change is so wide-ranging that it is dif-
ficult to attribute solely to the ECtHR. An example being the situation where changes
have taken place to the probation service.108 In a number of judgments, the ECtHR
has found violations of Article 5(4) in that prisoners have been detained in prison
past the expiration of the tariff period because of a lack of manpower and resources
within the Probation Board. For example, in Betteridge v. UK, the ECtHR found that
the delay in release that occurred was the direct result of the ‘failure of the authorities
to anticipate the demands which would be placed on the prison system’ as a result of
a new type of sentence.109 Similar conclusions regarding the impact of ‘inadequate
resources’ had been reached in 2012.110

5  New Laws, Policies and Practices

More fundamental changes to laws, policies or practices or new initiatives as a result
of a judgment of the ECtHR concerning the UK over the past five years have been rare.
The most dramatic change has not been to statute law but, rather, to the application
of the HRA extra-territorially as a result of the UK courts adopting the conclusion of
the ECtHR in Al-Skeini v. UK.111 The ECtHR concluded that there were exceptions to
territorial jurisdiction where there was state agent authority and control or effective

104
R. (McDonald) v. Kensington & Chelsea Royal London Borough Council, [2011] UKSC 33.
105
McDonald v. UK, supra note 57, para. 47.
106
Ibid., at para. 57.
107
A small change to the statute providing protection against unfair dismissal resulted from the judgment
in ECtHR, Case of Redfearn v.  United Kingdom, Appl. no.  47335/06, Judgment of 6 November 2012
(Enterprise and Regulatory Reform Act 2013, 2013, c. 24, s. 13). Other possible changes to the statute
from judgments of the ECtHR are too recent to have been acted upon by Parliament, including ECtHR,
Case of R.E. v. UK, Appl. no. 62498/11, Judgment of 27 October 2015, concerning surveillance of a legal
consultation.
108
See further N.  Padfield, ‘The Magnitude of the Offender Rehabilitation and ‘Through the Gate’
Resettlement Revolution’, Criminal Law Review (2016) 99.
109
Betteridge v. UK, supra note 57, para. 40.
110
ECtHR, Case of James, Wells and Lee v. United Kingdom, Appl. no. 25119/09, 57715/09 and 57877/09,
Judgment of 18 September 2012.
111
Al-Skeini v. UK, supra note 55. Adopted by the UK Supreme Court in Smith v. Ministry of Defence, [2013]
UKSC 41.
782 EJIL 28 (2017), 763–785

control of an area, anywhere in the world. In the present application, it concluded that
the UK, through its soldiers engaged in security operations in Basra during the period
in question, ‘exercised authority and control over individuals killed in the course of
such security operations, so as to establish a jurisdictional link’.112 As a result, the
Court concluded that there was a procedural obligation under Article 2 to investigate
the deaths of the Iraqi civilians.
The judgment has led to applications raising questions of compliance with Articles
2, 3 and 5 under the HRA in the UK courts brought by foreign nationals and members
of the UK armed forces who have served abroad.113 Many of the investigations are con-
ducted by the Iraq Historic Allegations Team (IHAT), which was established in 2010
to ‘review and investigate allegations of abuse by Iraqi civilians by UK armed forces
personnel in Iraq during the period of 2003 to July 2009’. The scope of its investiga-
tions is described as follows:
The alleged offences range from murder to low-level violence and the time period covers the
start of the military campaign in Iraq, in March 2003, through the major combat operations
of April 2003 and the following years spent maintaining security as part of the Multi-National
Force and mentoring and training Iraqi security forces.114

It was reported in The Guardian on 22 January 2016 that the government had paid
£20 million in settlement for the 326 claims to date.115 It was stated in Parliament
in January 2016 that IHAT’s caseload now involves just over 1,500 alleged victims,
1,235 of whom are victims of ill-treatment and 280 of unlawful killing.116

5  So What Added Value Does the ECtHR Have for the UK?

At the outset of this article, it was explained that a present-day value-based assess-
ment of the role of the ECtHR would enrich the debate concerning whether or not the
UK still needed the Court to help to provide protection for human rights through law
at the national level. Having utilized relevant scholarship to establish a value frame-
work, with various potential values of the Court identified at the individual, global
and national levels, the discussion has applied this framework to five years of jurispru-
dence concerning the UK to test the accuracy of the claims made. It is now important
to consider what value the Court currently has for a state such as the UK.

112
Al-Skeini v. UK, supra note 55, para. 149. See also Al-Jedda v. UK, supra note 60. In Hassan v. UK, supra
note 54, paras 104–107, the ECtHR confirmed that the ECHR continued to apply even in situations of
international armed conflict ‘albeit interpreted against the background of the provisions of international
humanitarian law’.
113
See, e.g., Smith v. Ministry of Defence, [2013] UKSC 41.
114
Iraq Historic Allegations Team, available at www.gov.uk/government/groups/iraq-historic-allegations-
team-ihat.
115
Matthew Weaver, ‘David Cameron “Wrong to Crack Down on Legal Claims against Iraq Veterans”’,
The Guardian (22 January 2016), available at www.theguardian.com/uk-news/2016/jan/22/
david-cameron-wrong-to-deter-legal-claims-against-iraq-veterans.
116
Richard Benyon, MP, House of Commons Debates, vol. 605, col. 190, 27 January 2016.
 The Value of the European Court of Human Rights to the United Kingdom 783

At present, the ECtHR clearly has a value to the UK at the individual level.
Applications continue to be lodged and declared admissible, and violations are still
found. The ECtHR has a gap-filling function that ensures justice is available to those
unable to access it through national human rights law and that provides a legal route
that is less influenced by national political considerations for those at the margins of
UK society. But, as already noted, value at the global level is a more difficult question.
The UK is a key player in the ongoing value of the Court at this level and obviously
benefits enormously from human rights protection being maintained throughout the
47 contracting states as well as globally. However, responding to the argument that
the global value of the ECtHR will continue to be realized without the UK’s input is
more difficult. It has been suggested that an alternative way to consider this value is
how, at the moment, the UK clearly has a role in shaping the global norms formulated
by the ECtHR. Should it exit the ECHR system of protection, the UK may find itself
complying with a variety of human rights standards insisted upon by other states that
it has had absolutely no role in formulating.
The greatest value of the ECtHR to the UK continues to be at the national level.
But with the enhanced national human rights protection through law provided by
the HRA, judgments with a dynamic value similar to Smith and Grady v. UK117 (blan-
ket ban on homosexual service personnel), Osman v. UK118 (positive duty on police to
protect) and Campbell and Cosans v. UK119 (corporal punishment in schools) are now
the exception rather than the norm. However, rather than looking to the ECtHR pre-
dominantly as a force for societal change, it is important to also appreciate its static
value. It continues to act as a strong disincentive where there is a temptation to breach
the ECHR, as recent experience with the Investigatory Powers Bill illustrates. It pro-
vides justice and remedy to victims of the breach of human rights law, which, for
one reason or another, cannot be rectified at the national level. Most importantly for
a government openly hostile to European intervention in national affairs, it helps to
maintain the status quo by confirming the national courts’ interpretation and applica-
tion of human rights norms to often controversial issues. As noted above, this can
provide a finality to national debates that have been ongoing for many years, such as
those over political advertising, which no national institution would ever be able to
achieve. It also provides a strong affirmation that the UK’s overt commitment to pro-
tecting human rights through law is working, despite what critics of the judgments of
the national courts and the ECtHR might think.
Each of the judgments of the ECtHR concerning the UK will have one or more types
of value, and considering judgments from the perspective of value, alongside ques-
tions of impact and legitimacy, can provide different insights. For example, the judg-
ment of the ECtHR, which found the proposed extradition of Abu Qatada to Jordan

117
ECtHR, Smith and Grady v. United Kingdom, Appl. nos 33985/96 and 33986/96, Judgment of 25 July
2000.
118
ECtHR, Case of Osman v. United Kingdom, Appl. no. 23452/94, Judgment of 28 October 1998.
119
ECtHR, Case of Campbell and Cosans v. United Kingdom, Appl. nos 7511/76 and 7743/76, Judgment of 25
February 1982.
784 EJIL 28 (2017), 763–785

incompatible with the ECHR,120 was perceived by many as being highly illegitimate
given that it was contrary to the conclusion of the UK Supreme Court and the wishes
of elected politicians. But it did have a number of impacts: he was not extradited until
an agreement was concluded with Jordan; the law concerning deportation where
there was a real risk of a flagrant denial of Article 6 was developed; and a further
backlash against the ECtHR and human rights law commenced.
Stopping the analysis of the judgment there reveals only one part of the story – con-
sidering the value of this judgment, in accordance with the framework set out above,
provides an additional perspective. It could be argued that the judgment had value
at the individual level since it provided a remedy to an applicant marginalized and
demonized with a highly politicized claim. It also had value at the global level in that
the ECtHR established, for all contracting states, that it is not compatible with Article
6 of the ECHR to admit evidence obtained by torture and that it is in flagrant denial
of this guarantee to deport or extradite where there is a real risk that this might occur
in the destination state. And it had a value at the national level by demonstrating the
strong disincentive effect of a judgment of the ECtHR on a government under consid-
erable political pressure, holding it to account and ensuring a change in national law
that prevented removal from the UK where a similar risk of a flagrant denial of justice
was present.

6 Conclusion
For a state ostensibly committed to protecting human rights through law, but ques-
tioning its membership of the ECHR system and the oversight of the ECtHR, deter-
mining the value of the Court is an important exercise, alongside questions of impact
and legitimacy. However, while the value of the ECtHR to a contracting state is not a
question that has been completely ignored in the literature, it is question that is not
often considered in detail or applied to the recent experience of a contracting state. In
this article, three overarching categories of value have been identified from relevant
scholarship: individual, global and national value. The strength of each will vary
depending upon the circumstances prevailing in the contracting state at a particular
point in time. When this framework is applied to the experience of the UK before the
ECtHR over the past five years, the results are very different from that which would
have been revealed 10 years ago when the effects of the much improved human rights
protection provided by the HRA had yet to filter through to the applications made to
the Court. However, it is not correct to claim that the Court therefore no longer has
any value for the UK.
It is likely that debates over the UK’s future relationship with the ECtHR will con-
tinue, particularly if the current government presses ahead with its plans for a British
Bill of Rights. But, as has been demonstrated in this article, it is not possible to have
a commitment to protecting human rights through law and also dismiss the value of

Othman v. UK, supra note 58.

120
 The Value of the European Court of Human Rights to the United Kingdom 785

the ECtHR in contributing to this objective. Whether politics, nationalism or misplaced

considerations of national sovereignty are really driving such debates, highlighting
the present-day value of the ECtHR can help to illustrate what will really happen if
the UK were to leave the ECHR system and the oversight of the Court. In short, those
unable to pursue remedies at the national level will have no alternative; UK courts will
lose their remarkable, and growing, influence on the jurisprudence of the Court; the
disincentive to violate human rights provided by an independent external arbiter will
fall away; the Court’s potential as a catalyst for dynamic change will be lost and the
value of the Court’s regular confirmations that the UK is doing a good job with human
rights will be squandered.