Can European Consensus Encourage Acceptance of the European Convention on Human Rights in the United Kingdom?

Abstract

Whilst the use of European consensus by the European Court of Human Rights is receiving some attention in the relevant scholarship, there has been very little assessment of the validity of the assumption that this method of decision making enhances the legitimacy of judgments. There has also been little acknowledgment that, whilst the Court’s efforts to increase the legitimacy of its judgments in this manner might be favourable to the governments of Contracting States, there is a risk that too much reliance upon consensus will negatively impact upon the legitimacy of the Court from the perspective of applicants, NGOs and other civil society actors. In this chapter the actual and potential impact of the use of European consensus by the Court in its decision making is considered in relation to the United Kingdom where scepticism surrounding the ECHR system prompted current Prime Minister Theresa May, prior to the Brexit Referendum, to call for the UK to withdraw from the European Convention on Human Rights. Whilst the UK is not alone in its animosity towards the Court, it makes for an interesting case study to test whether or not consensus methodology can actually increase the legitimacy of the ECtHR for all of those with a stake in the Convention system.