Conference: 50 Years of Our Right to Apply to Strasbourg
14 January 2016, The Centre of European Law, The Dickson Poon School of Law, King’s College
London
50 Years of Our Right to Apply to Strasbourg: The Past (1966-2016) and Future of
Access to the European Court of Human Rights from the United Kingdom
Talk delivered by Sir Nicolas Bratza Member of the European Commission of Human Rights (199398), Judge (1998-2012) and President (2011-12) of the European Court of Human Rights.
Ladies and Gentleman, I feel very privileged to have been asked to chair this important
conference to celebrate a special birthday and to do so in the company of many stars of the
human rights world. I would like at the outset to thank the Deputy Dean of the Dickson Poon
School of Law, Professor Bowling and Professor Tridimas for their kind words of welcome
and congratulate King's College London for organizing this timely conference.
The past twelve months have indeed been months of important milestones in the history of
the protection of fundamental rights in this country - the 800th anniversary of Magna Carta,
the 65th anniversary of the European Convention on Human Rights, the 15th anniversary of
the coming into effect of the Human Rights Act and now the 5Oth anniversary of the grant of
the individual right to invoke the Strasbourg human rights mechanism in claims against the
United Kingdom.
The present anniversary is as important as any of these, since it marked the birth of the real
development of the Convention rights in this country that had been guaranteed when the
United Kingdom ratified the Convention some thirteen years before. Certainly, there had
already been an important interstate application brought by Greece against the United
Kingdom, concerning the emergency laws in Cyprus, and there was to follow in the early
1970s the landmark case of Ireland v. the United Kingdom. But it was the grant to individuals
of direct access to the European Commission of Human Rights that gave a new life to the
Convention rights enjoyed in this country. One of our speakers today could tell us much more
about the conception and period of gestation of the individual right of petition. However, so
far as the public were concerned, its birth seems to have caused little stir. Hansard records
that, in answer to a question by Terence Higgins in December 1964 as to when the country
could expect the grant of such a right, the Prime Minister, Harold Wilson, replied, in timehonoured Ministerial fashion, that the Government were looking at the whole matter.
Terence Higgins persisted in harrying the Prime Minister with a similar question throughout
1965 and received substantially the same reply. No other Member of Parliament seemed to
show any particular interest, save one Tory member who, in a question which has a certain
topical feeling, urged Mr. Wilson to take care before taking any step that might mean that
decisions of our own Court of Appeal could be overridden by a European Court. It was not
until December 1965 that Harold Wilson eventually announced, without it seems any very
great enthusiasm, that the United Kingdom had now decided to accept, for an initial period of
three years, the right of individual petition. And on 14 January 1966 this right came into
being.
If the grant of the new right caused relative indifference among politicians and the general
public, the same is not true of the legal fraternity in this country whose immediate and
imaginative use of the right meant that cases against the United Kingdom very quickly
occupied centre stage in Strasbourg. Within 15 years, almost one third of all applications
pending in Strasbourg were against the United Kingdom and by mid-1980 there had been
significantly more judgments against the UK than against any other State, save Belgium. This
is perhaps hardly surprising since the individual in the United Kingdom had no protection
under domestic law against encroachment on his rights by legislative acts and since there was
no general power for individuals to challenge administrative acts affecting human rights, the
common law having been shown to be a very imperfect safeguard of fundamental rights. The
Conference: 50 Years of Our Right to Apply to Strasbourg
14 January 2016, The Centre of European Law, The Dickson Poon School of Law, King’s College
London
only recourse lay to Strasbourg and lawyers in his country showed themselves to very adept at
using this new remedy to good effect.
What is also unsurprising is that it was through the early individual cases against the United
Kingdom that the extraordinary flowering of Convention case-law first occurred and that the
principles that have now become such a well-established feature of Convention case-law were
first fully developed. The margin of appreciation; the notion of victim status; the autonomous
concept of Convention rights; the positive obligations of a State; the meaning of "lawfulness"
in Articles 8 and 10; the concept of inhuman and degrading treatment in Article 3 - all these
owed, if not their very existence, at least their fullest and most coherent analysis, to the early
landmark cases against the United Kingdom. The East African Asian case concerning the
racially discriminatory treatment of Commonwealth immigrants; the case of Golder
establishing the right of access to Court as an essential element of the right to fair trial under
Article 6; the first Sunday Times case concerning the publication of an article tracing the
origins of the Thalidomide disaster; the Handyside case concerning the prosecution for
obscenity of the author and publisher of the Little Red Schoolbook; the Dudgeon case
concerning the criminalisation of homosexual acts in Northern Ireland; the case of Silver and
Others relating to the control of prisoners' correspondence; the Tyrer case relating to the use
of judicial corporal punishment in the Isle of Man; the Soering case concerning the expulsion
or extradition of a person who faced a substantial risk of death or ill-treatment on his return;
the case of Young, James and Webster relating to the right not to be compelled to join a trade
union; and the case of Malone concerning the interception of communications without a
legislative basis. These were the cases that, more than any others, helped to shape the
development of the case-law and to build the authority and confidence of the Strasbourg
Court and the Convention system as a whole.
Whether or not this explosion in cases against the United Kingdom was originally foreseen by
the authorities, concerns about the decision to extend to individuals the right to petition
Strasbourg were expressed at an early stage. Any enthusiasm for the change that had
occurred seems to have been quickly tempered. In January 1972 the period of acceptance of
the optional protocol was reduced from three to two years and in the following month a
memorandum was circulated to the Cabinet by the then Home Secretary, expressing concerns
that his Department had been, as he put it, "the chief ...sufferer at the hands of the
Commission." It was said that the right had been renewed for two years only as experience
had shown that it was not sensible "to commit ourselves too far I ahead". In words that have
strong echoes in the more modern era, the memorandum concluded:
"Unless there is a marked change of heart by the Commission, or unless the tendency
of the Commission towards developing a new jurisprudence by extending the meaning
of the Convention is corrected by decisions of the European Court, continued
acceptance of these optional articles by the United Kingdom is likely to bring neither
benefit nor credit. ......[I)t is a calculation whether we shall be exposed to greater
political harm by continuing to subscribe to these articles or by withdrawing from
them."
However, neither the Conservative Government nor any later administration in fact withdrew
from the protocol; under the 'subsequent Labour administration the period was indeed
extended to five years and, despite occasional warnings to the Court about the danger of its
interpretative process crossing the legislative line and fervid media speculation whenever a
controversial judgment was delivered, the optional protocol was renewed on each occasion
until the individual right of petition became permanent with the establishment of the fulltime Court under Protocol No. 11.
Conference: 50 Years of Our Right to Apply to Strasbourg
14 January 2016, The Centre of European Law, The Dickson Poon School of Law, King’s College
London
If it was the grant of the individual right of petition which made the Convention rights a
reality in this country, it was the passing of the Human Rights Act which firmly embedded
those rights in our domestic law and made recourse to Strasbourg what it was always
intended to be - an international mechanism where national remedies had failed to protect an
individual's fundamental rights. As the White Paper which ushered in the Act recognised,
there had been growing awareness that it was not sufficient to rely on the common law to
protect fundamental rights and that the approach which the United Kingdom had so far
adopted did not sufficiently reflect the importance of the Convention and had not stood the
test of time.
The effect of the Act has been profound, not merely in allowing courts in this country to
breathe a new life into the application of the Convention rights and in establishing an
invaluable dialogue between the national and international courts but in significantly
reducing the need for applicants to take the long road to Strasbourg. It is a striking fact, too
often conveniently overlooked, that, in contrast to 50 years ago, it is in substantially less than
1% of all applications currently brought against the United Kingdom that a violation of the
Convention of any kind is found by the Strasbourg Court.
It is therefore a somewhat bitter irony that what should be a year of celebration is also a time
when human rights protection in this country is beset by storm clouds. The recent years have
witnessed increasingly virulent attack on the Strasbourg Court and judges of that Court; a
binding judgment of the Court has remained unimplemented for over ten years since its
delivery; frequent calls have been made by members of Parliament and in the media for
judgments of the Court to be disregarded, in defiance of the country's international
obligations and for the United Kingdom to withdraw from the Convention system itself;
increasingly hostile criticism has been made of the Human Rights Act and judgments under
that Act and it has become Government policy to repeal the Act and to replace it with what is
said to be a more British Bill of Rights. It is this Bill which it was claimed at the ceremony to
mark the anniversary of Magna Carta would "restore the reputation of those rights" and
"safeguard the legacy , the idea and the momentous achievement of those barons" at
Runnymede.
At the end of 2014 we were presented with proposals for such a Bill - a Bill which would sever
the formal link between our courts and the case-law of the Strasbourg Court; confine the
ability to invoke the Bill to protect Convention rights "to the most serious cases"; and "
clarify", in the sense of qualifying, the Convention rights, by narrowing their meaning and
effect. With these proposals, the road to Strasbourg is likely to become increasingly busy.
Worse still, the Bill would provide that judgments of the Strasbourg Court against the United
Kingdom would have only advisory and not binding effect, despite the clear and
unambiguous terms of the Convention of which this country was a founding member. And we
were told that if the Council of Europe was not prepared to agree that this new "approach"
was a legitimate way of applying the Convention, the United Kingdom would be left with no
alternative but to withdraw from the Convention at the point the Bill came into effect.
Last year we were promised a consultation document on a Bill of Rights in the autumn. We
have not yet seen the paper, having been told that complex constitutional changes involving
the UK's highest court had been raised, which "required serious thought". Regrettably,
despite having been invited to attend this conference, no one from the Ministry of Justice
responded to the invitation and we cannot therefore be further enlightened as to when we can
expect the consultation document or as to what it might contain .
But we do have a number of distinguished speakers present drawn from civil society, from
Parliament and from the academic world, who will reflect and share their views on the
Conference: 50 Years of Our Right to Apply to Strasbourg
14 January 2016, The Centre of European Law, The Dickson Poon School of Law, King’s College
London
individual right of petition, then and now, on its impact on the protection of human rights in
this country over the past 50 years and on the future of that protection in the next 50 and
beyond.
Before I introduce the main event the organisers have arranged for a more traditional way of
celebrating a birthday by providing a cake which I have been invited to cut. And this I will do,
with the fervent hope that it will be only the first of many celebrations of the grant of the right
of individual access to the Strasbourg Court.