The European Court of Human Rights (ECtHR) is a recurrent bête noire in the Daily Express’s ‘Get Britain out of the EU’ supplement, so it is perhaps unsurprising to find the paper’s Chief Political Commentator Patrick O’Flynn set his sights on the institution in an article contained therein. But do his claims about the reach and influence of the court match up to the reality?

Does the EU require its members to sign up to the ECHR?

“For many years the EU has required all members to be signatories of the convention [European Convention on Human Rights - ECHR] as it seeks to override the legal sovereignty of the nations of Europe" Patrick O’Flynn, The Daily Express ‘Get Britain out of the EU’ supplement

Leaving aside the loaded issue of whether or not the EU is seeking to "override" the legal sovereignty of its member states, the relationship between Brussels and the ECHR is far more complicated than this statement allows, and one of the most interesting areas of debate around the proposals for a 'British Bill of Rights'.

The European Convention on Human Rights is not an EU treaty, and the Court is not an EU institution. Both were set up and are sponsored by the Council of Europe, which has 47 members to the EU's 27. Neither does membership of the EU formally require a nation to be a signatory of the ECHR.

In practice however the link between membership of the EU and the ECHR is much closer, with the former institution requiring its constituent states to have institutions which guarantee the protection of human rights. Consequently all member states are also signatories of the ECHR. Furthermore this relationship is edging closer to being formalised. In 2008 the Lisbon Treaty amended the Treaty on the European Union to say that: "Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law." This is in preparation for the EU itself signing up to the ECHR, as required by the 2008 Lisbon Treaty, which will give the European Court of Human Rights the power to adjudicate over acts of the EU as well as those of its member states.

In practice therefore, membership of the EU and the ECHR may be so closely interwoven as to be inextricable to all intents and purposes, even if legally the two remain separate issues.

ECHR judgments

“A quarter of its [the ECtHR] judgments have overturned UK court rulings outright and three-quarters have seen partial losses for Britain. 80 per cent of the judgments Britain has lost, a total of 331 out of 418, have occurred since Labour passed the Human Rights Act.”

The Express supports these claims by stating that since the Strasbourg Court was created in 1959 it has passed 418 judgments affecting Britain, eighty per cent of which Britain has lost.

These figures, taken from the Taxpayers' Alliance, have actually been misquoted however. The Taxpayers’ Alliance states that the UK to date has lost 331 out of the 418 rulings that have reached the Strasbourg court with eighty per cent of all these judgments, 246 out of 331, having occurred since the Human Rights Act (HRA) was passed in 1998.

A publication from the European Court of Human Rights casts further doubt on the matter, stating that out of the 422 total judgments made between 1959 and 2009, there were 257 judgments finding at least one violation, 79 cases having shown no violation with 65 being struck out or resulting in friendly settlements. These figures paint a more complex picture, suggesting that not as many rulings have been overturned by the ECHR as the figures from the Taxpayers' Alliance would suggest.

The implicit link drawn between the introduction of the Human Rights Act and the explosion in judgments made against the UK is more complicated still. Although the Human Rights Act did indeed complete its passage through Parliament in 1998, it didn't actually come into force until October 2000. Although the HRA could conceivably have increased the number of cases lodged against the UK as it allowed retrospective cases to be brought for the first time, it was not the only change around that time that could be responsible for the growth in work at the Court. In November 1998, Protocol 11 of the European Convention on Human Rights was also enacted, which allowed EU citizens to lodge a case directly with the Court.

Both of these measures could have had an impact on the caseload at the Court, however it is Protocol 11 that the Court itself highlighted as having been the stimulus to the increase in applications: "Since the reform of the Convention system on 1November 1998, there has been a considerable increase in the Court’s caseload." Where the UK is concerned the number of judgments grew most substantially in 2000 (it remained flat in 1998), however this is likely to be accounted for by the time lag in lodging a case with the court and it making its decision, rather than the introduction of the Human Rights Act, which only became binding in October of that year.

It therefore appears that the introduction of the HRA was not the only, or even necessarily the most important cause of the cited increase in judgments made against the UK at the ECtHR.

The cost of ECHR compliance

“Recent research shows that complying with European human rights laws is costing British taxpayers £2 billion a year. The total cost of abiding by judgments under the European Convention on Human Rights has topped £17.3 billion.”

The Express again uses Taxpayers’ Alliance research to source its figures on the amount ECHR judgments are costing UK citizens.

However a closer look at the Taxpayers' Alliance report reveals that over half of this cost can be attributed to a single case, Gaskin vs the UK, which took place in 1989 and had an estimated one-off cost of £1.15 billion with a recurring annual cost of £742 million. Having been applied for 11 years, this amounts to a total cost of £9.31 billion. Whilst this doesn’t change the aggregate figure reached by the Taxpayers’ Alliance, it does have an impact upon how future costs might be calculated.

Furthermore, much of the costs incurred relate to the enforcement of data protection regulations. In this country, the Data Protection Act was passed in 1998, and came into force in 2000. However where the EU impinged upon the legislation, it did so as a consequence of the European Data Protection Directive (95/46/EC) issued in 1995 by the EU Commission, rather than through human rights law. According to the EU, this "Directive sets strict limits on the collection and use of personal data and demands that each Member State set up an independent national body responsible for the protection of these data." The progenitor of the requirement to monitor and protect citizen data - as well as the associated costs - could therefore be seen as the EU itself, rather than the ECHR.

Dr Lee Rotherham, the author of the Taxpayers' Alliance research, has responded to these points by stating that the institutions of the EU are in turn influenced by the rulings of the ECtHR. Whilst tracing a direct causal link between judgments and costs may therefore be trickier than the Express suggests, it is equally difficult to conclude that no such link exists.

Conclusion

The Express makes several claims about the influence of the ECHR on UK law, and whilst most can be substantiated with some form of research, the paper glosses over the complexities.