In recent years, the clash of two titans has come to the fore. On the one hand is the traditional nation state, what Hobbes termed the Leviathan, born as it was out of the ashes of the Holy Roman Empire and its theocratic union. On the other hand, is its antithesis: the Cyclops of the European Union and its assorted judicial courts, such as the European Court of Human Rights (ECHR). The two existed in a type of entente cordiale in the days of relative EU harmony, when substantive problems such as immigration and war were in abeyance.
The ECHR modus operandi is set out in Protocol 15 with the concept of ‘subsidiarity’ which gives precedence to the nation state; it maintains that states are closest to the democratic legitimacy and facts and cultural settings of affairs. Tensions flare, however, when evolving democratic challenges (populist or democratic nations) promise to implement elected mandates. There then can arise a clash of thinking, as, essentially, the EU embodies a unilateral vision, working outside of democratic consensus. There is now an increasing likelihood of clashes in the periphery on voting, immigration, and freedom of speech. In May 2025 there was a joint letter issued by nine member states which asked for an urgent enquiry into the extending ambit of the ECHR. Yet despite these concerns the Council of Europe has doubled down. The Council Secretary General Alain Berset dismissed the critique and maintained the ‘independence’ of the ECHR saying that ‘no judicial body should be subject to political pressure’.
This seems to fly in the face of that original protocol; the direction of democracy reversed.
Central to the controversy is the legal idea of dynamic interpretation used by International Courts. In 1978, the Court intervened to abolish birching in the UK. The law must be a ‘living instrument which must be interpreted in the light of present-day conditions’ (Tyrer v UK, 1978). Herein is the dilemma, as International Courts interpret ‘dynamic interpretation’ as ‘progress’. This itself is a radical concept as it embodies ideas which are new and untested. It presumes that modernity requires ‘progress’ and that traditional or conservative concepts need to be swept away. This was illustrated in 2002 where the recognition of transgender rights under Article 8 (private life) and Article 12 (marriage) was construed to ‘reflecting modern social attitudes’. However, one could construe the exact opposite – that Transgender Rights could be seen as a threat to the notion of Article 8 – right to respect for private and family life, home, and correspondence. Therefore, the real meaning of dynamic interpretation means the slavish pursuit of the current vogue of liberal ‘progressive’ policy. This narrow interpretation must be placed in contrast to the majority opinion of democratic states, whether it be on immigration, bioethics etc. The Courts are not elected so have no democratic mandate. Whilst the protective provisions of the ECHR had legitimate concerns in the 1950s, dynamic interpretation has to be tempered by a reasonable outlook, looking to tradition and to progress.
Article 10 protects freedom of speech. However, in a 2004 case, a British National Party member displayed a poster with the words ‘Islam out of Britain – Protect the British People’ and a picture of the Twin Towers burning. One person was convicted under anti-discrimination law in the UK and took their case to Strasbourg. His case was dismissed by the logic that his speech interfered with others (Article 17 – abuse of rights). In a similar vein, there has been no recourse at Strasbourg for recent cases under the Public Order Act 1986 (racial hatred offences) and Racial and Religious Hatred Act 2006 where decisions and arbitrary jail terms have been challenged, yet the ECHR has regularly supported the UK’s position that such restrictions are ‘necessary in a democratic society’. The EU and the ECHR are therefore heavily politicised. Far from being the gatekeeper of rights; they have morphed into the guardian of the abuses of liberal governments. Cases are interpreted in favour of a liberal conception of life, of society.
How would the EU deal with an elected ADF in Germany? This being the only party which carries direct democracy in its constitution. What legal shenanigans will be constructed by courts to impose themselves on democratically elected government? There is no doubt that liberalism does not tolerate diversity of thought. Therefore, we face a dangerous crossroads. Will states be forced to leave the Council of Europe and the ECHR? This would start a precedent that would be hard to stop. The excesses of liberal government – the inability to address immigration and free speech – means that democracy plays second fiddle to a trahison de clercs of European elites. The elites, through representative democracy, restrict debate and use both the domestic and EU courts as a bulwark against freedom. The original meaning of the ECHR and ‘subsidiarity’ – that states are closest to implementing democratic legitimacy – has been consigned to the dustbin of history.
Brian Patrick Bolger LSE, University of Liverpool. His new book: Nowhere Fast: Democracy and Identity in the Twenty First Century’ is published now by Ethics International Press. He is an adviser to several Think Tanks and Corporates on Geopolitical Issues.
