The UK’s relationship with the Council of Europe presents a paradox. In many ways, the UK is an exemplar within this organisation of 47 states. The UK was a founding member of the Council of Europe in 1949 and an early signatory of the European Convention on Human Rights in 1950—leading the effort to unify a war-shattered continent on the three pillars of human rights, democracy and the rule of law. It was British lawyers who, from the 1970s, pioneered litigation before the European Court of Human Rights in Strasbourg, shaping its early and most influential case law. The UK is one of the five largest financial contributors to the Council of Europe.^[1] The UK’s own human rights record is comparatively strong: the Court finds violations in only a handful of UK cases annually (on average, six per year since 2010), and, with the notable exception of prisoner voting, those judgments are complied with.^[2] The parliamentary Joint Committee on Human Rights (the JCHR) is regarded as a model across Europe.^[3]

 

Yet, this record is clouded by the negative and sometimes intemperate discourse surrounding the UK’s relationship with Strasbourg; indeed, no mature democracy has done more to destabilise the Council of Europe in recent years than the UK. Calls by judicial figures and politicians for the UK to resist the authority of the Court and even consider leaving the Convention, based on the perception that judges tie the hands of elected politicians, mark the nadir of this debate.[4] The Brexit vote took Strasbourg out of the firing line—and continued adherence to the Convention is a red line for Brussels in its negotiations with the UK.^[5] Yet, the damage is already done. Mere discussion of rupture with the Council of Europe emboldens states such as Russia to flout their human rights obligations; for example, the UK’s protracted refusal to implement prisoner voting judgments was cited in the Duma as a basis for Russia to do the same, and paved the way for a Russian law which empowers the Constitutional Court to declare rulings of any international human rights body ‘impossible to implement’.^[6]

 

Not only that, but Conservative MPs who are delegates to the Council of Europe’s deliberative arm, the Parliamentary Assembly, have used it as a venue to mount an ideological defence of illiberal rule in, inter alia, Turkey, Hungary and Poland—and to scupper (successfully in Hungary’s case) attempts to intensify scrutiny on these states by means of the Assembly’s monitoring procedure.^[7]

 

In the post-Brexit era, the time is ripe for the UK to reset its relationship with the Council of Europe and reclaim the moral and political leadership that it once showed. The UK’s relinquishing of its formerly exemplary role is not only corrosive of the organisation and its values, but also weakens the UK’s ability to use the Council of Europe as an alternative forum within which to engage with 46 other European member states—including those within strategically important geopolitical regions such as the former Soviet states and Turkey. The organisation’s inter-governmental arm, the Committee of Ministers, as well as the Court and the Parliamentary Assembly, each provide opportunities to further the UK’s foreign policy objectives of strengthening national and international security and supporting the development of open societies.

 

The crucial intergovernmental work of the Council of Europe 

A range of Council of Europe entities are carrying out essential work, on an inter-governmental basis, on issues which are key areas of focus for the UK, including media freedom, LGBTI rights and gender-based violence. Established in 2014, the Platform for the Protection of Journalism and Safety of Journalists acts as an early warning system and protective network to address threats to the media. Its latest annual report describes 2019 as ‘as an intense and often dangerous battleground for press freedom and freedom of expression’ in Europe, including physical attacks, detention and harassment.^[8] This threat has only escalated with laws that suppress free expression being enacted under the guise of emergency responses to COVID-19.^[9] Meanwhile, the Sexual Orientation and Gender Identity unit of the Council of Europe showcases the work being done, for example, to combat discrimination on the basis of sexual orientation, to counter the particular threats created by COVID-19, and to support the policing of hate crimes against the LGBTI community and the legal recognition of same-sex partnerships.^[10]

 

The UK espouses a strong commitment to tackling violence against women and girls, and has established cross-party support on the issue, but it is the only western European state that has not yet ratified the Council of Europe’s Istanbul Convention, often described as a ‘gold standard’ of treaties on gender-based violence and domestic violence.[11] Eight country reports have been produced since its inception in 2014 by the Council of Europe’s watchdog, GREVIO, propelling this issue to the forefront of public debate, increasing societal awareness of the urgent need to combat it and leading to improved legislation and policies.^[12] Engagement at the Council of Europe level, having ratified the Istanbul Convention, would undoubtedly enhance the important work being done on this at the national level in the UK. There are, in addition, many other vital areas of work within the Council of Europe which the UK should be supporting, and learning from, including how artificial intelligence can be used to counter the threat of COVID-19, the ways in which human rights law can be used to protect the environment, and combatting human trafficking.^[13]

 

The European Court of Human Rights – a bastion of judicial independence

The most well-known Council of Europe institution is the European Court of Human Rights, which is arguably also the most effective single human rights body across the globe. Given the Court’s position at the fulcrum of legal systems across the 47 Council of Europe states, the UK should grasp the opportunity to bolster it as a bastion of judicial independence for the continent, especially at a time when such independence is under serious threat in EU states including Poland and Hungary. The continued engagement of the highest UK courts in the Superior Courts Network (which includes 93 courts from 40 states) ensures a healthy dialogue between national courts about the effective application of the European Convention at the national level.^[14]

 

When the European Court issues its judgments, it is the Committee of Ministers which supervises their implementation in a peer-to-peer based system that operates largely behind closed doors. This is the body which needs strengthened engagement from the UK (and indeed concerted effort with other states), so that judgments on key issues and from particular regions can be enforced more quickly. Focusing on the implementation, for example, of cases relating to gross abuses by the Russian security forces in Chechnya, or cases brought by the victims of the Nagorno-Karabakh conflict, would serve to shore up security in those regions, and internationally.^[15] In doing so, there would also be a synergy with the UK’s new Global Human Rights Sanctions Regulations, introduced last year, whose priorities include protecting the right to life and the prohibition of torture.^[16] It would also be in line with the Foreign Affairs Committee’s call for the Foreign, Commonwealth and Development Office to prioritise mediation, conflict resolution, and atrocity prevention.^[17] The failure to date to take resolute action on abuses in Chechnya has led to a prevailing climate of impunity in that region, which the European Human Rights Advocacy Centre and Human Rights Watch have argued, has led to their perpetuation amongst an ever-widening circle of victims, including the LGBTI community.^[18]

 

Similarly, the UK’s goal of giving succour to open societies would be enhanced by its promotion of judgments highlighting, for example, the political prosecution of opposition politicians in Russia and Turkey, and human rights defenders and journalists in Azerbaijan.^[19] Also on its radar, for the same reasons, should be the case in Strasbourg challenging the notorious ‘foreign agents’ law’ in Russia, which continues to have such detrimental effects for civil society in that country.^[20] The fact that a number of these judgments have directly led to the applicants being freed from imprisonment or having their convictions quashed, demonstrates that these mechanisms have real teeth, and further engagement and leverage from states like the UK would lead to more far-reaching impacts in a broader range of cases.^[21]

 

There is also the opportunity for the UK to lead in utilising the machinery available within the Court system that is rarely, if ever, invoked. This includes the infringement procedure (to take a recalcitrant state back before the Court if it refuses to rectify violations); third party interventions (whereby the UK could assist the Court in its adjudications by providing information in non-UK cases), and the possibility of bringing inter-state proceedings (as, for example, the Netherlands did recently against Russia in respect of the shooting down of Malaysia Airlines Flight MH17 over eastern Ukraine in 2014).^[22]

 

The Parliamentary Assembly – a diminished body in need of leadership                

The Parliamentary Assembly, comprising 324 national parliamentarians from the 47 states (18 from the UK Parliament) has a proud history of achievements such as the de facto abolition of the death penalty across Europe.^[23] The Assembly has, however, had a tempestuous decade. The low point was the revelation that Assembly members had been bribed to work in favour of the Azerbaijani government—a long-held suspicion confirmed in 2018 by an independent investigation established by the Assembly itself.^[24]

 

The enfeeblement of the Assembly is regrettable. Not only does it have important powers, such as electing judges of the Court, but also, through its deliberations in quarterly sessions in Strasbourg and the work of specialised committees, it underpins the democratic legitimacy of the Council of Europe. The Assembly’s monitoring procedure is, moreover, one of the main political tools that the Council of Europe has to confront states engaged in rule of law backsliding. Assembly debates and resolutions, in turn, frequently rely on opinions of the Venice Commission (an expert body within the Council of Europe that advises member states on constitutional matters)—and may result in recommendations for action by the Committee of Ministers. In this way, synergy can be achieved between multiple arms of the Council of Europe to resist the erosion of the rule of law and human rights and foster the development of open societies.

 

As noted above, UK Conservative delegates, as members of the conservative group in the Assembly known as EC/DA (European Conservatives Group and Democratic Alliance), have consistently defended illiberal regimes. Analysis of verbatim records of Assembly debates suggest that delegates from other UK parties are largely invisible in Strasbourg, perhaps reflecting the low prestige assigned to membership of the parliamentary delegation.^[25] We suggest that this is a missed opportunity to advance agendas that are conducive to the UK’s professed goals.

 

Individual parliamentarians can exercise significant influence by seizing the initiative within the Assembly. For example, the Swiss Senator Dick Marty did so in his pioneering investigation into CIA rendition and secret detention operations in Europe, a process of accountability-seeking that ultimately drew in all the main organs of the Council of Europe, including the Court, the Committee of Ministers, the Venice Commission and the Commissioner for Human Rights.^[26] We suggest, too, that the work of the Council of Europe could achieve greater recognition in Parliament if the procedure for selecting the UK delegation were to be changed from the present system of Prime Ministerial appointment to a more transparent and accountable means, i.e. direct election by MPs, as happens for most House of Commons select committees.^[27] It would also be beneficial if some overlap could be guaranteed between membership of the Assembly delegation and the JCHR, in order to ensure greater coordination within Parliament on human rights matters.

 

Conclusion – championing a rules-based order

The Foreign Affairs Committee recently concluded that, as competition between nations intensifies, it falls on democratic nations to uphold the rules-based international system, including democracy, human rights and free trade. The Committee was urged by numerous contributors to its inquiry on the Integrated Review to exhort the UK Government to articulate the universal values at the heart of its international policy.^[28] The UK needs to show greater ambition, the Committee concluded, if it is to effectively challenge ‘revisionist’ powers that seek to subvert the international system and weaken rights. As the UK moves decisively into the post-Brexit era, the Council of Europe is the preeminent means for the UK to exercise ‘soft power’ influence across the continent, in the direction recommended both by the Foreign Affairs Committee and the Integrated Review itself. The Chair of the JCHR, Harriet Harman, has called on the UK to lead by example.^[29] This requires a fundamental recalibration of relations with Strasbourg. Damaging rhetoric that has done so much to undermine the Council of Europe must cease and the UK must, as the Foreign Affairs Committee implores, put itself back on the right side of the battle between the competing visions of autocracies and those that champion a rules-based order at home and abroad.

 

Dr Alice Donald is a Senior Lecturer in the School of Law at Middlesex University, London. She is co-author with Philip Leach of Parliaments and the European Court of Human Rights (Oxford University Press, 2016). Alice’s research interests include the relationship between human rights and democratic governance and matters related to human rights implementation. She is an invited expert at the Council of Europe and has experience of training parliamentarians across Europe on behalf of the Parliamentary Assembly. 

 

Philip Leach is Professor of Human Rights Law at Middlesex University, a solicitor, and Director of the European Human Rights Advocacy Centre (EHRAC: ehrac.org.uk), also based at Middlesex University, London. He has extensive experience of representing applicants before the European Court of Human Rights, in particular from the former Soviet region, as well as the UK and Turkey. He researches and publishes widely in the field of international human rights law.

 

Image by High Contrast under (CC).

 

^[1] The UK, France, Germany, Italy and the Russian Federation each pay an annual contribution of almost €33.5 million, calculated on the basis of population and Gross Domestic Product; see: Council of Europe Programme and Budget 2020-2021, Committee of Ministers, December 2019, https://rm.coe.int/1680994ffd#page=184

^[2] Figures taken from Annual Reports of the European Court of Human Rights, Annual Report 2019, https://echr.coe.int/Pages/home.aspx?p=court/annualreports&c=; As a snapshot, on 31 December 2019, the UK was responsible for only 0.3 per cent of cases (16 out of 5,231) pending before the Committee of Ministers, i.e. judgments whose implementation was still being monitored (see Annual Report of the Committee of Ministers, 2019, p. 62, https://rm.coe.int/annual-report-2019/16809ec315).

^[3] Donald, Alice and Leach, Philip. 2016. Parliaments and the European Court of Human Rights. Oxford: Oxford University Press, Chapter 7.

[4] See, e.g., Jonathan Sumption, The Reith Lectures 2019, Lecture 3: Human Rights and Wrongs, June 2019, http://downloads.bbc.co.uk/radio4/reith2019/Reith_2019_Sumption_lecture_3.pdf; see, e.g., Theresa May, Speech on Brexit: full text, Conservative Home, April 2016, https://www.conservativehome.com/parliament/2016/04/theresa-mays-speech-on-brexit-full-text.html

^[5] European Commission, Draft text of the Agreement on the New Partnership with the United Kingdom, Article 136, March 2020, https://ec.europa.eu/info/sites/info/files/200318-draft-agreement-gen.pdf

^[6] Philip Leach and Alice Donald, Russia defies Strasbourg: is contagion spreading?, EJIL Talk, December 2015, https://www.ejiltalk.org/russia-defies-strasbourg-is-contagion-spreading/

^[7] Donald, Alice and Speck, Anne-Katrin. Forthcoming 2021. ‘Time for the Gloves to Come Off? The response by the Parliamentary Assembly of the Council of Europe to rule of law backsliding. ECHR Law Review.

^[8] HANDS OFF PRESS FREEDOM: ATTACKS ON MEDIA IN EUROPE MUST NOT BECOME A NEW NORMAL, 2020 Annual Report by the partner organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists, https://rm.coe.int/annual-report-final-en/16809f03a9

^[9] See, e.g., Kriszta  Kovács, Hungary’s Orbánistan: A Complete Arsenal of Emergency Powers, Verfassungsblog, April 2020, https://verfassungsblog.de/hungarys-orbanistan-a-complete-arsenal-of-emergency-powers/

^[10] See further: Sexual Orientation and Gender Identity, Council of Europe Portal, https://www.coe.int/en/web/sogi

[11] See: Istanbul Convention Ratification: 2019 Report on Progress Statement made on 31 October 2019, https://questions-statements.parliament.uk/written-statements/detail/2019-10-31/HCWS58; For example: Angela Crawley MP, The most progressive international treaty for women’s rights remains unratified by the UK, The House, March 2020, https://www.politicshome.com/thehouse/article/the-most-progressive-international-treaty-for-womens-rights-remains-unratified-by-the-uk

^[12] See: 1st GENERAL REPORT ON GREVIO’S ACTIVITIES, April 2020, https://rm.coe.int/1st-general-report-on-grevio-s-activities/16809cd382. The Istanbul Convention has been signed but not ratified by the UK.

^[13] See further: Council of Europe and Artificial Intelligence, Council of Europe Portal, https://www.coe.int/en/web/artificial-intelligence/home; See further: Protecting the environment using human rights law, Council of Europe, https://www.coe.int/en/web/portal/human-rights-environment, and Video – Human Rights for the Planet, Council of Europe, https://www.coe.int/en/web/portal/programme-human-rights-for-the-planet; See further: Action against Trafficking in Human Beings, Council of Europe, https://www.coe.int/en/web/anti-human-trafficking

^[14] See further: Superior Courts Network, ECHR, https://www.echr.coe.int/Pages/home.aspx?p=court/dialoguecourts/network&c=

^[15] See, for example, the two European Court Grand Chamber judgments from 2015 which remain unimplemented: Chiragov v Armenia and Sargsyan v Azerbaijan.

^[16] See further: FCO and FCDO, UK global human rights sanctions, Gov.uk, July 2020, https://www.gov.uk/government/collections/uk-global-human-rights-sanctions

^[17] Foreign Affairs Committee, A brave new Britain? The future of the UK’s international policy, Fourth Report of Session 2019-21, October 2020, https://committees.parliament.uk/publications/3133/documents/29251/default/

^[18] See the joint third party intervention of the European Human Rights Advocacy Centre and Human Rights Watch in the case of Lapunov v Russia, July 2020, https://ehrac.org.uk/news/ehrac-and-hrw-intervene-in-chechnya-lgbti-crackdown-case/

^[19] Navalnyy v Russia; Selahattin Demirtaş v Turkey; Rasul Jafarov v Azerbaijan and Khadija Ismayilova v Azerbaijan.

^[20] See, for example, Amnesty International: Russia: New ‘foreign agents’ bill further erodes freedom of expression and association, November 2020, https://www.amnesty.org/en/latest/news/2020/11/russia-new-foreign-agents-bill-further-erodes-freedom-of-expression-and-association/

^[21] See, for example, the decision of the Committee of Ministers in the Mammadli group of cases of 3 September 2020, https://hudoc.exec.coe.int/eng#%7B%22EXECIdentifier%22:%5B%22CM/Del/Dec(2020)1377bis/H46-3E%22%5D%7D

^[22] Netherlands Government: The Netherlands brings MH17 case against Russia before European Court of Human Rights, July 2020, https://www.government.nl/latest/news/2020/07/10/the-netherlands-brings-mh17-case-against-russia-before-european-court-of-human-rights

^[23] See the membership of the UK delegation: https://www.parliament.uk/mps-lords-and-offices/offices/delegations/coe2/membership1/

^[24] Council of Europe, Report of the Independent Investigation Body on the allegations of corruption within the Parliamentary Assembly, April 2018, http://assembly.coe.int/Communication/IBAC/IBAC-GIAC-Report-EN.pdf

^[25] See above no.8.

^[26] See for a chronology of developments: http://assembly.coe.int/nw/xml/News/FeaturesManager-View-EN.asp?ID=362

^[27] As recommended by the Public Administration and Constitutional Affairs Committee, Appointment of the UK’s delegation to the Parliamentary Assembly of the Council of Europe, Second Report of Session 2015–16, January 2016, para 25, https://publications.parliament.uk/pa/cm201516/cmselect/cmpubadm/658/658.pdf

^[28] See above no.18, para 4.

^[29] Correspondence with William Cash MP, 20 April 2020, available here: https://committees.parliament.uk/publications/747/documents/4376/default/