A tale of two Europes: How conflating the European Court of Human Rights with the European Union exacerbates Euroscepticism
| Author | Zoë Jay |
| DOI | http://doi.org/10.1177/13691481211048501 |
| Published date | 01 November 2022 |
| Date | 01 November 2022 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/13691481211048501
The British Journal of Politics and
International Relations
2022, Vol. 24(4) 563 –581
© The Author(s) 2021
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DOI: 10.1177/13691481211048501
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A tale of two Europes: How
conflating the European Court
of Human Rights with the
European Union exacerbates
Euroscepticism
Zoë Jay
Abstract
This article focuses on the phenomenon of conflating the European Court of Human Rights with
the European Court of Justice and European Union in British political and media discourse. Scholars
of the European Court of Human Rights and Euroscepticism often acknowledge conflation, but
rarely specify the forms it takes or its specific effects on British perceptions of the legitimacy of
European institutions. This article identifies three main forms of conflation: muddled conflation,
ambiguous conflation, and deliberate conflation. It shows that conflation can be both a symptom
of deeper Eurosceptic disregard for the roles and purposes of distinct European institutions, and
a deliberate rhetorical tool, intended to weaken the legitimacy of separate institutions by tying
criticisms of one to the other. The article demonstrates that conflating the different Europes
contributes to the persistence of Strasbourgsceptic narratives in the British political sphere by
exacerbating pre-existing concerns and providing additional opportunities to raise them in public.
Keywords
conflation, European Court of Human Rights, European Union, United Kingdom, Euroscepticism,
Strasbourgscepticism, legitimacy
Introduction
Between 2008 and 2016, the British press covered a series of stories about the Government’s
efforts to deport foreign criminals and terror suspects being blocked by European law.
‘European judges thwart attempts to deport foreign terrorist suspects’, the Times declared
(Ford, 2008), while the Telegraph wrote of British courts winning ‘back the power to
deport terrorist suspects, criminals and failed asylum seekers after European judges were
Centre of Excellence in Law, Identity and the European Narratives (EuroStorie), University of Helsinki,
Helsinki, Finland
Corresponding author:
Zoë Jay, Centre of Excellence in Law, Identity and the European Narratives (EuroStorie), University of
Helsinki, Siltavuorenpenger 1A, Helsinki 00170, Finland.
Email: zoe.jay@helsinki.fi
1048501BPI0010.1177/13691481211048501The British Journal of Politics and International RelationsJay
research-article2021
Original Article
564 The British Journal of Politics and International Relations 24(4)
told to stop interfering’ (Whitehead, 2011). Later, the Telegraph used similar language
again to announce ‘European court challenges Britain’s right to deport all foreign crimi-
nals’ (Holehouse, 2016). Similarities in the headlines and concerns about decisions of the
British Government and courts being overruled are clear. But the articles refer to two dif-
ferent Europes. The first two articles focus on rulings by the European Court of Human
Rights (ECtHR), based in Strasbourg and established by the Council of Europe in 1959 to
interpret the European Convention on Human Rights (ECHR). The latter refers to a ruling
by the Court of Justice of the European Union (CJEU), charged since 1952 with interpret-
ing European Union (EU)/European Community (EC) law from its seat in Luxembourg.
Referring to distinct European institutions under the broad umbrella of ‘Europe’ is a
well-known phenomenon in British politics. From headlines about judicial rulings being
handed down by unspecified ‘meddling European judges’ (Slack, 2011), to politicians
misunderstanding the relationship between the ECtHR and EU, acts of conflation are a
central feature of public discussions of the United Kingdom’s interactions with the conti-
nent. They are regular reminders that when the United Kingdom conceives of specific
institutions, they are attached to a bigger geographical, cultural and historical whole – one
from which the United Kingdom is often perceived as irreconcilably different. For the
ECtHR in particular, this rhetorical shorthand results in confusion about what the Court
does and to which parent body it is accountable, as the Court is subsumed by the better-
known EU’s more expansive remit and more direct influence over domestic law.
But what effects does conflation of the ‘Two Europes’ have on the United Kingdom’s
relationship with the Strasbourg human rights system? Given that the ECtHR faces its
own criticisms and legitimacy challenges, to what extent does conflation add to or exac-
erbate more substantive concerns about the role of Convention law in the British consti-
tutional order? In studies of the politics of the ECtHR, scholars regularly point to the
conflation of the Strasbourg Court with the EU to explain the Court’s legitimacy prob-
lems, suggesting that the legitimacy of the ECtHR is undermined by its intrinsically
European nature and perceived association with the EU (Drewry, 2007: 102; Lambrecht,
2019: 49; Voeten, 2013: 422; Ziegler et al., 2015: 506). Yet, this argument is only ever
made in passing; the assumption that conflation reinforces Euro- and Strasbourgscepticism
is taken for granted. Less attention is paid to the different forms conflation might take or
the precise nature of its effect on British perceptions of European institutions. In return,
Euroscepticism literature focuses almost exclusively on the EU. It rarely examines how
criticisms of the EU overlap with or differ from criticisms of the Council of Europe and
ECtHR, assuming that opposition to other parts of Europe is primarily ‘collateral scepti-
cism’ (Leruth et al., 2018: 4).
This article focuses on the phenomenon of conflation – the combining, treating inter-
changeably or subsuming of separate institutions under the same umbrella – in British
political and media debate about the Two Europes. It argues that conflation is a crucial
factor for understanding what I call here ‘Strasbourgscepticism’ as a ‘persistent and
embedded’ (Usherwood and Startin, 2013) feature of the United Kingdom’s relationship
with the European human rights system. Using qualitative content analysis of language
employed to describe European institutions, the article identifies three main forms of
conflation: muddled conflation, where different European bodies are confused or incor-
rectly labelled; ambiguous conflation, where actors refer to ‘Europe’ without specifying
the relevant bodies; and deliberate conflation, acts which purposefully draw connections
between the EU and ECtHR to cast the separate institutions as part of a broader entity.
The article then turns to two case studies – conflation in discussion of the ECtHR and
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