France and The European Convention Human Rights

Graham Child discusses the attitudes amongst French conservatives to the European Convention on Human Rights (ECHR), and reports on their Cercle Droit et Liberté.

“I doubt the value of multiplying rights, which only serve to magnify and perpetuate grievances.”  Jonathan Sumption

In January 2024, Anthony Speaight KC led a small group from the Society of Conservative Lawyers (SCL) to Paris to talk to practising conservative lawyers about the ECHR. Our connection with the French lawyers we visited came thorough the Federalist Society in Washington DC at whose annual Convention we had first met. We hoped to find out if the concern in the UK about the application of the ECHR was mirrored in France. Our two countries were founders of the ECHR. We were interested to know what remedies might be proposed. Might there even, as in the UK, be voices raised in favour of leaving?

It was clear that amongst those we spoke to, who generally looked at things from the standpoint of a claimant rather than of an enforcement agency, there was no appetite for leaving the ECHR. Strasbourg is much valued as a possible lifeline for a claimant who has exhausted domestic remedies. Just as in the UK.

We were also given reminders of the way in which the French legal system is structured. This is often worth keeping in mind in any discussion about comparative law and processes. Since 1790 there has been a prohibition on the regular judiciary getting involved in “L’action administrative”, or governmental, administrative matters. Administrative decisions can be brought before an administrative tribunal in what is now a highly developed tribunal system with first instance and appeal tribunals which are separate from the regular court system. Judges are appointed through civil service channels. The final court of appeal for these matters is the Conseil d’État which is housed in a splendid building in Paris which those of us on the 2024 visit were taken to see.

We were also reminded that matters of constitutionality are dealt with by the Constitutional Court, a relatively recent addition to the French legal system.

Purpose of this Post

Time has gone by since the meeting. The Conservative Party leadership has announced that it will be Party policy to leave the ECHR if it gets back into government. The UK Labour government has joined with other European governments in registering concern about the application of the ECHR. The question of just how the ECHR is viewed in France is worth revisiting.

I have recently had cause to think about this in particular when attending events put on by the Paris based group Cercle Droit et Liberté (CDL) which has been inspired by the Federalist Society and retains connections with that Society. The practising lawyers we met in January 2024 are associated with the CDL. Several members of the SCL will have known CDL and its participants and others may be interested because of attendance at London Law and Liberty Circle meetings. This post will, in conclusion, report on the CDL.

 

ECHR and Human Rights in the UK  

When talking to French lawyers I find it useful to remind them, and often myself too, of the framework and extent of UK legislation.

The UK does not have a written constitution. Human rights have been protected from time immemorial by the common law and by statute. Britain joined the ECHR at its inception after the Second World War. The ECHR was seen here as a means for ensuring that Nazi tyranny could not be repeated and that Soviet tyranny could not find a place in Western Europe. Compliance with the Convention at an international level is overseen by the Strasbourg Court to which both member states and individuals may take a case.

From early days the judges of the Strasbourg Court took a dynamic view of their jurisdiction. The Court applies what it calls the “living instrument” doctrine. Judges in effect create rights where none were envisaged before.

With the Human Rights Act 1998 which came into force in 2020 the Blair government embedded the ECHR into British law. Ministers, civil servants and courts are required to give full account to it. Ministers introducing legislation to parliament are required to certify that their bill is compliant with the ECHR, and if not that the government nevertheless wishes the bill to proceed.

Measures taken by government can be challenged in court for non-compliance with the ECHR.

Courts are required to interpret legislation as far as possible to be compliant with the ECHR. If they cannot do so, they are to make a statement that the legislation is not compliant. The expectation, usually met, is that legislation will quickly be introduced to correct the situation.

Unless a statute decrees otherwise, courts will as far as possible rule on all and every matter in a way consistent with ECHR norms.

It is a requirement of the ECHR itself that there is a high degree of court involvement in individual cases where the ECHR is relevant. This means that many administrative decisions, for example in immigration matters, are open to challenge and often multiple challenge in our courts.

In recent years there has been much commentary from lawyers, legal academics, the regular press and media and generally about how the system works. Lord Sumption in his Reith lectures of 2019 commented adversely on a number of Strasbourg Court decisions, not least in that the living instrument doctrine has the effect of substituting judge-made for democratically established law. He agreed that in specific instances Strasbourg had brought improvement to our law but overall he advocated for change. He was an early exponent of the view that we should leave the ECHR if no improvement could be found.

Extensive work has been done by the Judicial Power Project of the London-based think tank Policy Exchange showing the impact of the ECHR in the UK. The seminal essay on this matter in the field of immigration policy is by John Finnis and (SCL’s own) Simon Murray, Immigration, Strasbourg and Judicial Overreach. There are several other papers which can be found on the Policy Exchange website discussing the impact of incorporation of the ECHR, including The Impact of the Human Rights Act 1998 in Twenty-Five Cases.

It is recognised by all commentators that beyond the ECHR there are international conventions which have a significant bearing on these matters, most notably the Refugee Convention, but the ECHR clearly gives the most cause for concern.

In 2025 the leader of the Conservative Party asked Lord Wolfson of Tredegar KC, Shadow Attorney General, to consider whether in five specific domains the UK could adequately control policy. He was asked whether, if it was not possible, the remedy lay in amendment to domestic legislation or whether it would be necessary to leave the ECHR. The answers were set out in a document running to 185 pages.

The Wolfson Report

Lord Wolfson’s Report looks at the constraints imposed on government by the ECHR. The Convention has come in to play in relation to veterans (in both overseas and Northern Ireland campaigns), the banning of protests, the setting of minimum mandatory prison sentences and even the allocation of social housing and benefits. Infrastructure projects could also be constrained. Such is the breadth of the impact of the ECHR.

Frequently the most noteworthy from the point of view of the general public is the effect in the area of expulsion of non-national offenders and in the area of asylum and of immigration. Headlines are grabbed periodically. Judges at the first-tier level have scope, as many would see it, to be “indulgent”. Recently, for example, an asylum seeker was given leave to remain by a court partly because his son would not like the type of chicken nuggets available if father and child were forced to relocate to some other country. A further example - reports indicate that courts are permitting asylum seekers from various jurisdictions to apply to come to the UK using a form designed for Ukrainians.

Leaving aside rulings of our own judges, the Strasbourg Court has created the concept of the Rule 39 Order - an interim order. This is nowhere provided for in the Convention or related instruments. One of the last efforts of the Conservative government in relation to migration - the Rwanda policy- was thwarted by the issue of a Rule 39 (interim) order by the Strasbourg court. These orders are a major potential impediment to governments in the UK and elsewhere.

The Report concludes that the ECHR puts restrictions on government policy in all of the areas discussed, some more severe than in others. It concludes that merely amending UK legislation would not remove many of the restrictions and constraints. The only way to do that is to leave the ECHR.

Having considered the advice the Conservative Party leadership announced that, if the Party were to regain office, steps would be taken for the UK to withdraw from the ECHR.

Further action by the UK and other governments

On 10th December 2025 the UK Government joined in a joint statement to the Conference of Ministers of Justice of the Council of Europe signed by 27 countries representing a little over half of all member states. The statement says that its signatories are promoting an open and constructive discussion to develop a response to protect the Convention system from attempts to distort and weaken it. Essentially the signatories are looking for some rowing back by the Strasbourg Court.

Human Rights in France and the ECHR 

The legal situation

The Declaration of the Rights of Man and of the Citizen was proclaimed in 1789, a central feature of the French Revolution. Human rights have featured in all French Republican constitutions since that time, including in the Constitution of the 5th Republic which governs France today.

France is a member of the European Union which has its own Charter of Fundamental Rights. Clearly the EU Charter does not apply to the UK although it is of note that in France rulings of the Court of Justice of the European Union can also be a matter of concern, as will be mentioned below.

France has been a signatory to the ECHR since its creation after the Second World War. France and the UK are essentially the creators of it. Cases from France are brought to the Strasbourg Court in the same way as with the UK. The Convention forms part of French law. This is the area where comparison of experience and attitudes is particularly interesting.

In French law and practice, as set out on the French government website, a judgment of the Strasbourg Court, if adverse to France, does not automatically annul or modify French law. Numerous amendments to French law have however followed judgments against France by the ECHR. Examples include legislation governing wiretapping (1991), the rules governing police custody (right to legal counsel, right to remain silent) (2011). More recently, following a ruling against France in Strasbourg, a new law created a legal remedy allowing any detainee to petition a judge to end detention whose conditions are contrary to “human dignity” (2021).

The Strasbourg Court’s judgements do not annul or modify decisions made by French courts, but an adverse ruling in Strasbourg may lead to a reopening of the original decision by the French courts under laws introduced in France in the last ten years.

In addition the government website notes that the highest French courts have said, for example the Court of Cassation in a judgment of April 15, 2011, that states need to respect the case law of the Strasbourg court "without waiting to be sued before it or to have amended their legislation.” From this it would appear that regular courts, whether in the administrative or general (so called judicial) branch, are encouraged to seek to reach conclusions compatible with what the Strasbourg Court has said, or may be likely in future to say.

And in practice?

Politicians not least at election time and particularly of the right complain about Strasbourg court decisions. The National Rally (led by Marine Le Pen and Jordan Bardella) and Reconquête (led by Eric Zemmour) are often the most vociferous. Individuals on the “Republican”, i.e. moderate, right - Les Républicains and former members of that party - have expressed concerns too. Often the particular criticism relates to articles 8 and 3 and the use of those articles to prevent the deportation of foreign criminals or return of illegal immigrants. A ruling about compulsory vaccination incensed some. Some on the right have also expressed aversion to the EU. On the left, La France Insoumise (Jean-Luc Melenchon’s party) expresses contempt for the EU and some wonder if the Party accepts French membership of the ECHR.

On the moderate right, in 2017 François Fillon, the then leader of Les Républicains who was at that time a candidate for President of the French Republic, incensed by a judgment of Strasbourg regarding surrogate motherhood, stated that, unless there was change in Strasbourg, he would if elected seek to take France out of the ECHR. Michel Barnier (famed Brexit negotiator when at the EU Commission) was an unsuccessful candidate in the Presidential election in 2022 but in his campaign said that he would ensure that France no longer had to comply with rulings of the Strasbourg Court or of the Court of Justice of the European Communities. (CJEU). He did not say he wanted to leave the EU altogether, which would have been the only way to achieve his wish to be free of CJEU judgements. Others in France do advocate leaving the EU, but that seems to be the position of a very small minority.

The blogosphere has contained calls for departure from the ECHR. There have been think tank pronouncements. The Plessis Group. which represents a group of senior civil servants, published articles in the period 2016-18 expressing concerns about law making by judges not democratically elected representatives and called for departure from the ECHR.

All in all, however, there seems to have been nothing like the level of analysis that we have seen in the UK. And perhaps not much comment of any sort in recent times.

It would be particularly interesting to know how the expectation of the higher French courts that the lower courts will reach conclusions compatible with the ECHR has worked out in practice. Anecdotal evidence suggests that some French judges may have a tendency to “over-interpret” the often “creative” case law of the Strasbourg Court, and so “to become creative in their turn.” Just what this amounts to I do not know. One may speculate, however, that the nature of the French judicial system and structure does not lend itself to as much “indulgence” by first instance judges as is occasionally said to be observed in the UK.

Where does that leave things?

The French government has not joined the 27 other governments that have written to the Strasbourg authorities pointing towards something of a reset. It is hard to draw any conclusions from that fact alone. Many political considerations affect decisions about joining initiatives of that type.

Politicians in France on at least some parts of the spectrum are clearly unhappy about the ECHR. A change of President may lead to a major initiative regarding the Strasbourg Court. One may take the view that the UK has in the Blair era burdened itself with a human rights framework of law that is to some degree more burdensome for government than in France. The issues described in the Wolfson Report are many and very significant. It is not clear that the French have comparable problems in so many respects. The Strasbourg Court’s insistence, however, on maintaining the living instrument doctrine and its inventiveness, for example in relation to interim orders, must inevitably cause difficulties for a French or other ECHR contracting state government of any stripe.

Elections are due in France in 2027. It remains to be seen what the next President decides in relation to the ECHR.

Le Cercle Droit et Liberté (CDL)

I have earlier mentioned CDL. This is an organisation of lawyers in France which takes inspiration from the US Federalist Society. Some members of the SCL have attended the annual Federalist Society Convention in Washington D.C. and have met French lawyers from CDL. Some of the French lawyers have been to events in London. Many of the SCL members attend meetings of the parallel organisation, London Law and Liberty Circle. SCL members, therefore, know of or at least may be interested in this organisation in France.

CDL describes itself, informally at least, as an organisation of lawyers “of the right”. There is no equivalent to the SCL in France. The situation on the right in French politics has been alluded to above. The main right of centre party, the party of de Gaulle, has gone through various mutations and is now called LR or Les Républicains. At least two former members of that party have broken away to form their own political groupings. One could say, therefore, that there are three or even more centre right parties. In addition, competing for votes on the right, there is most obviously the National Rally, the party led by Madame Le Pen and Jordan Bardella. There is also a group who follow Eric Zemmour a journalist who has stood for President in the past and has said he plans to stand again.

The Right is fragmented but lawyers supporting or attracted by any one of those groupings have many interests and concerns in common. CDL, like the London Law and Liberty Circle, offers a place for lawyers “of the right’ to come together. During its ten years of existence CDL has held meetings at which topics of interest have been discussed. I myself addressed one of their meetings giving an English lawyer’s perspective on Brexit and I later addressed a meeting on the subject of progressivism or wokeism, as seen from our side of the Channel.

On the principal theme of this blog post, it is of note that the CDL held a one-day seminar in May 2024 on the 50th anniversary of France’s ratification of the ECHR which was entitled “La France et la CEDH: 50 ans de droits et discordes”. I have read the published transcript of the proceedings. Speakers from the academic world and legal practice took part. It aimed to cover a wide range of views about the ECHR and it did not push to the fore views particularly associated with the Federalist Society, a movement that has spent decades seeking to counter “activist” judicial activity. The discussion concentrated on the Strasbourg Court. Some speakers were indeed concerned about judicial activism in the Court. Participants recognised that this has had unwelcome consequences for some member states, not least the UK. Other participants were much less concerned and it was observed that the general law in France is often expressed in general terms leaving the French judge much latitude for interpretation - so some might say nothing surprising there for French lawyers. One panelist commented, perhaps jokingly, that if you want to avoid activism by judges you should reduce the number of cases reaching them or appoint better judges.

A speaker from Hungary expressed concern about the homogenising tendencies of the Strasbourg Court – the apparent desire as he saw it to put all member states into a straight jacket and to ignore the very particular histories of countries that had suffered for decades under Soviet tyranny.

Some speakers were concerned about practical matters at the Strasbourg Court for example the connections between judges and some of the NGOs that are involved with cases before them. In that respect the UK received a compliment about the process whereby judges may be recused, as exemplified by the Pinochet case.

Overall the CDL seminar revealed little of what happens in French courts or about the current political debate in France. But the CDL has been active in other ways.

At the end of 2025 the CDR celebrated its 10th anniversary in Paris. French lawyers whom Anthony Speaight and the rest of our party met in early 2024 were present at these celebrations. This was an occasion for CDL to launch a programme for the next few years. CDL wish to become more of a campaigning group. They see bar associations in France (there are many, covering different areas) and similar institutions taking progressive or leftist positions and they wish to challenge decisions which need challenge. They wish to increase the lobbying which they undertake vis à vis elected representatives at all levels, to bring forward amendments to bills and other legislative proposals and to propose legislation to defend individual liberties against progressivist tendencies that they see as all too prevalent. They also want to become more active in challenging in court threats to liberty. They want to extend their reach and networks not only in Paris but in other important legal centres in France.

Most recently they hosted Justice Alito of the US Supreme Court, who went on to Paris for a similar event after one in London, where he engaged in a “fireside chat” at a meeting of the Law and Liberty Circle.

CDL does good work on the other side of the Channel and I am in favour of them! Irrespective of whether one supports the Labour government’s idea of a “reset” with the EU (I am not sure I do) it is the case that within the geographical area of Europe we all need to stand together! That goes for lawyers “of the right” as much as anyone else.

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Graham Child is a past member of the Oxford University Faculty of Law, and was founding co-author of Bellamy & Child’s European Community Law of Competition. He was formerly a partner in Slaughter and May. 

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 Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.