Robert Spano, who until the beginning of this month was president of the European Court of Human Rights, sounded a number of warnings in an interview for this week’s Law in Action on BBC Radio 4.
He questioned the need for Dominic Raab’s Bill of Rights Bill and predicted that passing it would inevitably lead to more defeats at the Strasbourg court for the United Kingdom, which is currently defending fewer cases, in proportion to its population, than any of the other 45 states in the Council of Europe.
In the second part of the programme, Spano talked about the urgent need to reinvigorate European democracy in the light of recent developments, notably Russia’s invasion of Ukraine.
We normally record interviews at much greater length than we can broadcast. On this occasion we have decided to release the full interview, which lasts about half an hour. You can now listen to it online or download it as a podcast.
Update 4 December: here is a transcript of the full half-hour BBC interview recorded on 7 November.
Joshua Rozenberg We hear a lot about the European Court of Human Rights here in the United Kingdom. But what do members of the European court think of the United Kingdom?
Róbert Spanó I would answer that in two parts. I would say first: the judges of the European Court of Human Rights are very, very positive towards our dialogue with the national courts. And I would say, in general, the legal establishment — there is a lot of admiration for English law, the bar, the barrister community.
The second thing that I would say is: there is a lot of respect for the historical contribution of the United Kingdom to the system.
Joshua Rozenberg And the United Kingdom gets on very well with the human rights court at the moment, in terms of the number of violations?
Róbert Spanó Absolutely. I have said publicly during my presidency, often, that the nature of our relationship between the Strasbourg court and the UK judiciary is a manifestation of success. This is how the system should work. And that, I think, is a very important part of that debate.
Joshua Rozenberg And the number of violations is on, one level, the lowest in Europe?
Róbert Spanó Indeed, the United Kingdom has also, when it comes to the number of applications, one of the lowest of the member states of the Council of Europe.
Joshua Rozenberg The UK observes human rights law: there’s no doubt about that?
Róbert Spanó I think that is — at least from the perspective of a Strasbourg judge and a former president of the court, there is no question that the overall level of protection in the United Kingdom is very high.
Joshua Rozenberg Does it surprise you then that we hear from time to time about plans to reform the relationship between the United Kingdom and the human rights convention — that the secretary of state for justice is proposing to introduce legislation before parliament which would affect that relationship?
Róbert Spanó I think the reaction that I would give — I would not qualify it as surprise. I would simply question, at least from the perspective of the relationship between the national judiciary, the national legal establishment, the enforcement of UK law by the national actors, and the way that manifests itself at Strasbourg, I would question the need for that kind of political reaction.
Now, the second point that I would make is, you know, it is for each and every member state of the Council of Europe to decide what kind of regulatory scheme there is incorporated domestically, to take account of the obligations of the country vis-à-vis its international obligations under the convention. This, I think, is one where states have an element of sovereignty.
Of course, states do this differently. But I would simply say, from the perspective of identifying the mischief — which is what we usually do when we want to change the laws — I find it difficult to understand what the mischief is, from the perspective of law.
Then there are political considerations; and that’s for others to discuss.
Joshua Rozenberg What you’re saying is there is no need for the law to be changed here in the United Kingdom because the United Kingdom gets on very well with the human rights convention and has a very low number of breaches of the convention — as found by the court you used to lead.
Róbert Spanó Correct. I would subscribe to that description, as you just laid down.
Joshua Rozenberg You’ve looked at the Bill of Rights Bill that the secretary of state has published and which he wants to introduce in parliament. Do you have any comments on what Dominic Raab is proposing to do?
Róbert Spanó Well, again, I think here you will understand, I’ve just left the court and I have to be careful.
I would say that I do believe it would be important for the members of government who are reflecting on changes to the national legislation to think very carefully about the concerns that have been raised by prominent members of the English legal establishment, most recently Jonathan Mance. There are very significant elements that are raised which need to be taken into account.
Joshua Rozenberg Lord Mance, of course, is a former deputy president of the Supreme Court of the United Kingdom. He devoted an entire speech to the Bill of Rights Bill that Dominic Raab introduced. And he said that the proposed reform could potentially put the United Kingdom in breach of the human rights convention. Is that right?
Róbert Spanó So I understood Lord Mance’s speech — which I read. And I think there are elements there which should be reflected upon, moving forward.
Joshua Rozenberg Putting it broadly, if the justice secretary’s bill is passed by parliament, the law here in the United Kingdom, as applied by the judges here in the United Kingdom, will diverge from the human rights law that the court you used to lead applies in Strasbourg. Is that right?
Róbert Spanó You asked a general question. And let me give you a general answer.
When a state decides to become a member state to the Council of Europe — and to be subjected to the obligations to protect the rights of its peoples under the convention — there are consequences that flow from that. That has been recognised by the United Kingdom for decades.
So any changes in the law at national level which may constrain, limit, hamper the ability of national actors — any branch of the separation of powers — in fulfilling those obligations under international law are problematic.
Joshua Rozenberg They’re problematic because, as I suggest, the law here in the UK would diverge from the law that the court is applying. That would mean, inevitably, there would be more defeat in future for the UK government in Strasbourg?
Róbert Spanó Well, it seems to be axiomatic that if national law — and that we have seen in several member states and that’s part of what we do here in Strasbourg; we are having to deal with applications when national judges and national actors have applied the law, national law, which in some shape or form leads to results which are not in conformity with the convention — so if a law is changed that has that result, that will inevitably lead, if those results are not in conformity with the convention, with applications being launched at Strasbourg and the court applying its case law. And that will lead to violations, yes.
Joshua Rozenberg And that will lead to more violations than we’ve been having at the moment, one may assume?
Róbert Spanó Well, as I said, I don’t want to speculate. It all depends on what changes are made to the laws. But that is a risk, yes.
Joshua Rozenberg It’s fair to say, however, that the UK government wants to change the law here in the United Kingdom. It does not want to change the relationship that the United Kingdom has with the Council of Europe, which supervises the European Court of Human Rights. That’s very important, isn’t it?
Róbert Spanó That is extremely important. The way I have understood the current position — and that is the position which I relied upon when I, as president of the court, gave evidence before Sir Peter Gross’s independent inquiry and also before the joint committee on human rights of parliament — that it was the stated position of government to be committed to staying within the convention. Now that’s a crucial position to take.
Joshua Rozenberg There are some in government who have said — not on behalf of the government, but on behalf of themselves — that the United Kingdom should pull out of the human rights convention. I’m thinking of Suella Braverman, the home secretary. What effect would it have if the United Kingdom were to denounce, were to pull out of, the human rights convention?
Róbert Spanó Well, I think the effect would be that the evolution of protection of human rights — and the way in which the English legal system has I think, benefited over the past 20 or 30 years from its ongoing relationship with the convention and the court — would be put into jeopardy.
The second point that I would make is: I think it is important to realise that, in the world we live in today, raising legal obstacles at the borders which may limit the ability for cross-border cooperation, confidence, trust, is a big responsibility to take. So the question is — it’s always going to be a cost benefit analysis.
Ultimately, if you look at it historically, my argument would be that if you look at the trajectory of jurisprudence that has had a beneficial impact on the United Kingdom and benefited the lives of the people of the United Kingdom, one would have to raise the question: are the arguments for, or in favour of, leaving the convention, do they outweigh the arguments which are very strong in the other direction?
Joshua Rozenberg You would say it would be a bad move for the United Kingdom to leave the human rights convention?
Róbert Spanó I think that is clear. I mean, as a former president and an international lawyer who believes deeply in the benefits of the collective pan-European protection of human rights — this constellation of rights and values which the convention embodies, which the United Kingdom was a progenitor, a protagonist, in creating 70 years ago — it goes without saying that I would think, also taking account of the current relationship and the current situation vis-à-vis the exemplary judicial dialogue between the Strasbourg court and the national UK courts, indeed it would not be a positive move.
Joshua Rozenberg The human rights convention is supervised by the Council of Europe, which is a political body with 46 members. If a country wants to join the Council of Europe, it must sign up to the human rights convention. If a country were to leave the human rights convention, would it have to leave the Council of Europe?
Róbert Spanó The way I understand it is: that goes hand in hand. We proceed on the basis that membership of the Council of Europe requires membership to the convention.
Joshua Rozenberg So if the UK were to pull out of the human rights convention, it would be forced to leave the Council of Europe — as Russia was earlier this year?
Róbert Spanó Now we’re into territory which I think would be — I wouldn’t want to speculate on how that process would play out. But there is a risk, yes, that questions would be raised about continued membership of any member state which decides to denounce — and this is the word under the convention — denounce its membership under the convention. In other words, questions would be raised about continued membership of the organisation as a whole.
Joshua Rozenberg There’s a great deal of interest in the United Kingdom at the moment in what the Strasbourg court calls “interim measures”. I would define that as a temporary injunction. But can you explain to me what the Strasbourg court understands by an interim measure?
Róbert Spanó An interim measure is a measure that can be taken by the court based on a request by a party that is under a risk — or the claim is being made — that there is imminent damage, imminent harm, which may be irreparable were a government to proceed with a particular action. So in other words, under the convention as interpreted by the court, the court can apply an interim measure requesting the government not to act in a certain way so that the applicant in question can effectively bring an application before the court and thus preserve the right to individual petition, which the convention secures.
Joshua Rozenberg So it holds the ring; it maintains the status quo. It keeps things as they are until the court can actually rule on it?
Róbert Spanó Correct.
Joshua Rozenberg Is an interim measure binding on the member state concerned?
Róbert Spanó Yes. Under the court’s case law, under Grand Chamber case law of the court, an interim measure by the European Court of Human Rights triggers an obligation, an international law obligation, infused under the convention towards the member state in question.
Joshua Rozenberg And obligations under international law are agreements between states and they can’t be affected by what a national parliament decides?
Róbert Spanó No, the general principle under international law, and certainly under the convention, is that it is for each and every member state to secure that legislative acts or decisions taken by the executive conform to the obligations the state, by sovereign choice, has undergone under international law.
Joshua Rozenberg Because there is a proposal before parliament in clause 24 of Dominic Raab’s Bill of Rights Bill which says: for the purposes of determining — that means deciding — rights and obligations under domestic law, no account is to be taken of any interim measure issued by the European Court of Human Rights. What do you understand that clause to mean?
Róbert Spanó Well, it’s not for me — I mean I’m not capable at this point of interpreting what is in the Bill of Rights. I would again refer to the comments already raised by eminent British scholars and former judges.
This, I think — the way it reads to me can indeed prove problematic if the idea is that under national law, an interim measure applied by the European Court of Human Rights shall not have any effect in the sense of national authorities being bound to apply those kinds of measures. Now, if that is the understanding, again, I would refer to what I said at the outset of our talk. These are issues as again already raised byby eminent scholars and judges at national level that need to be reflected upon in proceeding further along the lines in this bill
Joshua Rozenberg You’re referring to Lord Mance who said that that could potentially put the United Kingdom in breach of the human rights convention.
Róbert Spanó Correct.
Joshua Rozenberg I understand why you’re concerned by this proposal. But in one sense, it wouldn’t have any effect because it’s aimed at the courts, not at the government. And it’s the government, the UK government, which is signed up to the human rights convention. So whatever parliament does, the UK government would be bound to observe the convention. And you’ve told me that an interim measure, a temporary injunction is binding on the government.
Róbert Spanó The way international law views the separate branches of national government is based on a unitary model. In other words, it is the state which undergoes the obligation under international law. Now, the state under international law includes all branches of government. So therefore, for the purposes of assessing whether state action is in conformity or inconformity with the convention, for example, there is really no big difference from where that decision or action emanates. So, in other words, if the question is raised from the perspective of the convention and the Strasbourg court whether an interim measure is applied or not, the way that operates at national level is really not the court’s main concern. The court’s main concern is that if an interim measure is applied, the relevant state body — which has the authority and the power under national law to decide on whether to respect the interim measure or not — that that body, whatever branch of government that is, is in a position to do so.
Joshua Rozenberg What would happen if a member state refuses to comply with an interim measure?
Róbert Spanó Under the convention, it is for the committee of ministers of the Council of Europe to supervise the execution of judgments of the court, judgments on the merits. This is article 46 of the convention. Strictly speaking, the committee of ministers does not have supervisory powers when it comes to interim measures. That is an issue that has been reflected upon in the committee of ministers — whether there is a need to clarify the committee of ministers’ role in the supervision of the implementation and execution of interim measures, That is, I would say, an issue which needs further reflection in the Council of Europe. But it is not an issue which directly falls under the enforcement, the execution authority, of the Committee of Ministers. And of course, the court itself has no direct enforcement powers. They are fully monopolised under the convention by the committee of ministers.
Joshua Rozenberg Every judge of the European Court of Human Rights serves nine years. You ended your career on the bench as president. How do you look back at your nine years? The number of member states of the Council of Europe has gone down because Russia was required to leave the human rights convention; the United Kingdom is discussing changing its relationship with the human rights convention. Overall — success or failure?
Róbert Spanó I would answer that question by saying yes and no — which is maybe not a very sufficient answer. But let me explain.
The last 10 years in the life of the court I view with immense pride because I think the court has traversed an extremely difficult period where it experienced a lot of backlash and an attempt to undermine its authority — and even claims being made that the court was no longer necessary for the overall protection of human rights in Europe.
I think now in 2022, when the so called Interlaken process — which is the process of reform, which actually began pretty much during the time of the English presidency in 2012 — we have now seen the court reform itself. We’ve seen a court when it comes to most of the member states embedded a very strong relationship of mutual trust and dialogue with the national judiciaries and with the legal establishment. I would even say most of the political establishments in the member states, with some variations.
The second thing that I would say — and that’s the “no” part — is what we are seeing in Europe and indeed globally, is the rise of populism, a democratic backsliding, even democratic decay, war in Ukraine. Is that a failure of the Council of Europe and a failure of the European Court of Human Rights? I mean, I think one has to be realistic. The European Court of Human Rights is a court. We are not a political body, we’re not a policy organ. We do not prevent war. Those that claim that the invasion of Russia and Ukraine is a failure of that system, I think, need to explain their view in a bit more detail.
But I would say that we have potentially lost sight of the importance of what I would term inclusive democracy, which is: democracy does not mean majoritarian rule, unfettered majoritarian powers True democracy means that the rights of all are protected, the common interest is identified; not that the interests of the few in particular segments are the ones that constantly win. Brenda Hale, the former president of the UK Supreme Court, in a magisterial phrase, encapsulated this extremely well when she said, in a 2004 judgment, “democracy values everyone equally even if the majority does not”. That is the concept of the inclusive democracy that we may have, to a certain extent, failed to protect, to enforce, to believe in, in the last, I would say, five to 10 years. And I think it’s the role of all of us to try to reinvigorate, to retrigger, this true and inclusive concept of democracy.
So, “yes and no” is my answer.
Joshua Rozenberg Is there anything that you hope the Council of Europe will do to revitalise democracy in the future?
Róbert Spanó The Council of Europe is now in a transformative moment in its history. I would even call it an inflection point. And that goes hand in hand with, let’s say, European history being at an inflection point. And I don’t say that lightly because I think that these are big words.
The Council of Europe — the committee of ministers — has decided to organise a fourth summit, which is a meeting of the heads of state of the Council of Europe. This has only been done three times before and this will happen in my home country, in Reykjavik in May. There are several things that I hope will happen. One is exactly what we have been discussing. There needs to be a debate on the future of European democracy. Now, this sounds very abstract, perhaps. But this, is I think, what the organisation should really be thinking about.
There are three cardinal principles which the Council of Europe promotes: human rights, the rule of law and democracy. We’ve already talked about human rights protection and that is mainly within the field of the convention, the rule of law itself. That’s a very moral and legal concept which centres around the separation of powers. But democracy: that’s where the front line is. That’s where the battleground is for the future. We have to adapt democracy and the way it develops to the new digital environment. We have to bring back the idea of togetherness and connectedness in society, to try to have a debate about what it means to be a representative politician, what it means to be a part of a democratic culture of decision making. This black-and-white, us-and-them approach is not what democracy means.
So I’m hoping the future of the Council of Europe is a future in which that organisation, which has a long history in promoting democracy, attempts to create programmes, awareness — and I discussed this the other day in another interview — bringing democracy, human rights and the rule of law down to the grassroots level. Not just a discussion between a former president and, you know, one of the most eminent legal journalists in the United Kingdom in an interview on BBC but, rather, in primary schools with young children. We need to start from the ground up a discussion about what this actually means and why these principles are so important.
So that is what I hope the Council of Europe will promote in the 46 member states. Because if we fail in that project, then the future is one where history may unfortunately repeat itself. And it is clear and I think no one can accept a future which is similar to some periods of the past that we know about.
Joshua Rozenberg You’ve done many things in your legal career. You have now firmly shut the door on the European Court of Human Rights and walked away after your nine years in office. What does an ex-judge do now?
Róbert Spanó It’s a great question. And it was a question that I started asking myself, actually, about a couple of years ago. I come from Iceland, which is a beautiful country but it’s a small country. I’ve lived in Europe now for nine years. I’m quite an international person, half-Italian, half-Icelandic, speak several languages. I enjoy very much being a part of the international environment. So the future for us is one of me entering private practice, joining the international law firm of Gibson, Dunn and Crutcher working out of London, which I hope to do in January. And then perhaps, along with that, do some academic work at the University of Oxford and maybe go back to Iceland now and then to teach students there as well.
So that’s the decision I took. Of course, I’m retiring as the president of the court at the age of 50 which for, of course, the English legal establishment is probably unheard of or — at least very unusual.
Joshua Rozenberg That’s the age at which they start in England.
Róbert Spanó Indeed. So I’m a bit of a I’m a bit of a strange one. And I had to take decisions which I thought were best for me. And I hope to contribute also within the United Kingdom in continuing a conversation about these principles and values that we have been discussing.
Joshua Rozenberg You want to persuade ministers that perhaps some of their ideas need thinking again?
Róbert Spanó Well, at least, I mean my idea is — I’m going to take a modest approach on this, Joshua, and for me, it’s more a question of — I’ve been a public servant for 25 years, been a professor and a judge and practitioner. Now I’m entering private practice at the international level in a firm which I think is very ambitious and wanting to strengthen its practice, which is already very strong, and having someone on board that can give them a wider perspective, a human rights perspective, to certain issues. And that’s the way I want to contribute. I don’t intend to be an active participant in a political debate. I’m a lawyer, and I will continue to act as one.
Joshua Rozenberg You were president of the European Court of Human Rights in Strasbourg. You were nothing to do with the European Court of Justice in Luxembourg. But the two courts, the two cities, sound the same to people in the United Kingdom. That must be the bane of your life. That must be so frustrating for you, being mixed up with the other court.
Róbert Spanó I don’t think that I would articulate it as frustration. I would articulate it as a challenge of communication. Courts in the 21st century, and certainly in our decade, need to have a robust communication strategy. They need to be visible to their communities. No longer can courts be, you know, the mysterious majestic monasteries where everything is closed to the public. We need to speak about what we do.
One of the roles that I hopefully played — and played to the best of my ability — was, as president, to try to speak about what the court does. One of the things that we in Strasbourg and in Luxembourg — and this is something that, thankfully, we have discussed between us because we have an annual meeting, ourselves and the Luxembourg judges — is: how do we create awareness about what we do?
So I wouldn’t fault the regular person for having potentially misleading or insufficient information. It is for the legal and political establishment at domestic level, and also for us, to be in a position to explain the differences. It goes without saying that regular people — they have a lot on their plate. For them to reflect upon the differences between the EU court in Luxembourg and the Strasbourg court is really not top priority for most people.
But I think for us, we need to continue — and this is what we have actually done in the European Court of Human Rights — we have during my presidency, and even before, we have tried to invigorate, try to create a robust communication strategy and giving information to the public about what we do. And I think the colleagues in Luxembourg are trying to do the same.