Liberal Democrats know more than anyone else how hard it is to get breathing space to be heard in the increasingly hostile debate about human rights.
As long-time defenders of the European Court of Human Rights and the Human Rights Act, we are constantly frustrated by misleading coverage that paints human rights law as on the wrong side of the public – as well as the populist politicians who seize upon it.
The previous Labour government have a lot to answer for. Despite passing the Human Rights Act themselves, they spent much of their time in government trashing it, and pandering to the myth that it was a foreign invasion forced upon them by Europe. Astonishingly, by the end of the their term, the former Secretary of State for Justice, Jack Straw, had actually called the Human Rights Act a “villains’ charter”.
No wonder then, in a recent poll, 72 per cent of people were prepared to agree with the statement, “human rights have become a charter for criminals and the undeserving”.
Actually, I welcome a system of law that protects the human rights of everyone in society, no matter how unpopular they are. The Home Secretary’s statement yesterday, which reiterated this government’s commitment to deport Abu Qatada only according to due process and proper legality, makes me proud of this country. The mark of a civilised society is our ability to treat all as equals under the law, whether or not they command public sympathy.
But how human rights law is applied in practice has not always helped, and has often contributed to the clouded debate.
So now is time to stop this misrepresentation of human rights.
That is why the UK has made addressing the reform of the Strasbourg Court the priority of its six-month Chairmanship of the Council of Europe, which comes to an end this May.
This is not just a UK bugbear either: as delegates from across Europe gather in Brighton this week to work on a package of reforms, they are carrying on a process that started in Interlaken two years ago, and continued in Izmir last year.
The Brighton Declaration
Let me be clear: our goal is, and always has been, to strengthen the Convention and the Strasbourg Court, not weaken it.
The Convention system is vital for the protection of the rights and freedoms of people all across Europe. It may be 60 years now since it was drafted, but every Article is still fundamentally important.
But the Court cannot possibly act as a final court of appeal for 800 million people. The expectation that it should has resulted in a backlog of 150,000 cases.
Of course the Court must be there to deal with the most serious human rights violations where national courts have failed.
But that means it cannot be diverted into revisiting issues that have already been considered in depth by national courts themselves.
Our objective is that all Governments should make policies with rights in mind, and for every State official to understand and observe their obligations under the Convention.
That is why the draft Brighton Declaration says that the States Parties will consider “the introduction if necessary of new domestic legal remedies, whether of a specific or general nature”.
We may not all recognise the term “general domestic legal remedy”, but we have one in the United Kingdom nonetheless: the Human Rights Act.
So our aim is for the Strasbourg Court to focus on the cases that really need the attention of an international court, such as significant points of interpretation, or potential major violations.
For the remainder of cases, the goal is to ensure that they are properly addressed at national level.
It is better to prevent violations of human rights – wherever they occur – than to seek to remedy them later.
But this does not mean that cases which raise important questions of human rights, or which relate to serious violations, would not be considered. They will.
Nothing in the Brighton Declaration will prevent the Strasbourg Court from receiving and considering the applications that it needs to take.
And where national systems in other countries are not up to the job, the Strasbourg Court will still be there to guarantee that rights are protected.
The importance of the European Convention on Human Rights
The Court is there as the ultimate arbiter and guarantor.
It will sometimes need to overrule national courts – where they have clearly failed to apply the Convention obligations, or where there are significant points of interpretation that need resolution.
This is important and will always remain so.
But as the Court itself recognises, these cases should be exceptional: it cannot act as just another layer of appeal. It has to focus on the most serious human rights violations which so urgently require its attention.
When the public see that the Court is addressing – and resolving – these serious issues, their confidence in the importance and effectiveness of human rights will improve.
And that public confidence is critical not only to maintaining the protections we value so greatly, but to continue to develop them and export them to those parts of the world where they are needed most.
For those of us whose belief in human rights is absolute, this can only be a good thing.
* Tom McNally is Leader of the Liberal Democrats in the House of Lords and a Minister of State for Justice
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11 Comments
“Nothing in the Brighton Declaration will prevent the Strasbourg Court from receiving and considering the applications that it needs to take.”
Not now that it has been gutted from it’s original wording, that would have done just that.
The ECHR seems to have been set up to protect the individual against the state. This remains very relevent today, and is one reason why we should continue to support it. But there are now the new problems of misuse of rights, and of protecting large groups of individuals against individuals or small groups.
As well as clarifications to prevent abiuses, the convention needs to give right to populations – to be secure, to be healthy, to have charge over their destinies. I suggest that this is one of the things the public need to see. Is this something that might comne out of the Brighton conference?
The huge backlog of cases is obviously ridiculous, and they surely cannot all raise unique points of law or interpretation. How has this happened? What can prevent it recurringt?
I regret I’m having great difficulty comprehending the import of this article. Does it mean things will be more logical, moral and just when the Brightonfest is over?
The most crucial function of a transnational court is to uphold the human rights of citizens during their interaction with the state. We must not allow any reforms that weaken the ability for people to proceed against their government at the European Court.
it is a shame that the principles of subsidiarity and margin-for-appreciation only appear in the preamble, and not the main body of the new text, but it is at least a start.
people forget that justice and equity derive from a common consent that society must be constrained “just so”, and that in falling in love with arbitrary and immutable ‘fundamental’ rights they remove these rules from the society that fosters them.
supporters live in abject fear of that dirty word “populism”, without realising the project they support is also undermining the representative mandate of the ideals to which they pin so much importance.
Fortunately, nothing decided at Brighton does anything to weaken the ECHR, as the Secretary-General of the Council of Europe was at pains to point out yesterday. The changes will allow the ECHR to dismiss invalid cases more rapidly. Such cases account for 90% of the 150,000 cases claimed as a backlog.
You will hear plenty of Tory spin of course, but that’s all it is.
Abu Qatada should not, of course, be deported to a vicious torturing regime like Jordan, where the rule of law does not apply. Human Rights are absolute, no matter what politicians or society may think of the character or behaviour of an individual.
Clearly Human Rights is something neither the Labour or Tory parties or the vast majority of the UK public pay anything more than lip-service to.
Just as well we have the LibDems.
“But that means it cannot be diverted into revisiting issues that have already been considered in depth by national courts themselves. ”
I find that a recurring and troubling theme of the discussion of the court. No cases reach the conclusion of the domestic route of appeal without having be subject to thorough scrutiny and consideration. The implication (sometimes it is made explicitly) is that our courts don’t get decisions wrong so our country requires less oversight and should be left in peace. It’s arrogant and wrong.
Yes, the backlog needs to be cleared but that’s a separate issue. The main thing which exercises the Government is the principle of subsidiarity. The court must consider the legal culture of the respondent state already but isn’t dictated to by it (how could it be? They’re trying to use normative principles across many countries)… Apparently they’re trying to refer to it in a new preamble but it’s not clear what, if any, legal effect that would have.
The simple fact is, the legal rights of unpopular minorities are being respected then it’s a safe bet yours and mine are too. People feel it’s somehow wrong because only ‘bad people benefit from it’. The way I see it, I’m protected by the convention every day at all times and if I needed to have recourse to it then I would do.
What’s going on here is a bit of misdirection. The Al Qatada stuff or cases of a similar nature will be completely unaffected, either with the initial Brighton Declaration or what has subsequently been agreed.
As Lord McNally rightly points out, the problem here is the backlog of cases, many of which are duplicates on the specific point of law, fundamentally undermining the way the European Court of Human Rights operates. The problem is, I feel, two-pronged, and misunderstood by those who are not close observers.
The first problem is that the Court is horrendously equipped to deal with the sheer volume of cases coming from Russia and Turkey. Both countries have appalling human rights records and in the case of the former, repeated judgments on systemic state torture have been completely ignored in terms of changing domestic law and practice to comply with the convention. Since the ECtHR has very little power to force compliance (beyond just satisfaction damages for successful applicants) their rulings are ignored and more cases come before them. This is compounded by the wholly unaccountable judicial processes in the likes of Russia, denying wronged people a fair hearing within a reasonable time and making it inevitable that their legal teams will see a strong case for petitioning to Strasbourg. A slightly strange one outsiders mightn’t have noticed is that Italy also gets a lot of Art 6 complaints because their courts are a shambles.
This accounts for a lot of the backlog in the Strasbourg court, which means some applicants (ironically complaining they’ve been denied a prompt and fair hearing!) waiting as long as 5 years to achieve a determination in their case, and that’s before they examine the option of appealing to the Grand Chamber. However the second issue is that this backlog has a negative impact on *domestic* courts. For countries such as our own, many legitimate cases get held up in the Strasbourg machine waiting for a hearing date. Such a delay often leads to multiple cases coming from the same jurisdiction in respect of very similar complaints. The general practice, both in domestic and the Strasbourg court, is to try to conjoin similar cases, allowing judges to rule on the point of law uniformly whilst then giving derivative judgments on the particular merits of each case. This isn’t always possible. Sometimes a case will have already got under way in Strasbourg, and other similar cases are lodged soon after.
Such delays cause two problems. Firstly, it means that appropriate changes to domestic legislation often don’t take place until several years after the initial laws were passed. While waiting to find if they are ECHR compliant, governments look on as hundreds of aggrieved persons make similar complaints through the domestic courts in relation to practices taking place during this delayed period. Secondly, the fact that similar cases run simultaneously in Strasbourg, often being heard in different Sections (the main court is split into 5 permanent groups of judges) increases the possibility not just that they’ll reach contradictory conclusions, but that such an outcome will then lead to the need for a Grand Chamber judgment to settle the issue, adding another 2 years or so to the paralysis.
This is bad for legal certainty as it stops the domestic courts from applying the law in a timely manner which is Convention complaint. It’s bad for governments because they don’t know where they stand, are exposed to expensive legal costs and damages awards, and don’t get clear and prompt advice about what they may and may not do within the context of the ECHR. I’ve heard some suggest that the problem for the Court is a lack of resources. Whilst it is true that they could do with more resources, this could only be in respect of judgment enforcement. That will only help ease the caseload in the long-term though, and reforms are needed now to make things run more smoothly in more compliant countries.
We can’t simply increase the rate at which they are *hearing* cases because that means more Sections or some other complete restructuring of the Court to contain more tiers (which would make delays worse!) and with more Sections comes a greater risk to legal certainty. This isn’t to disparage the quality of judges in the European Court (though many of the judges are less experienced than our domestic judges) but legal professionals can and do disagree all the time on even the most fundamental matters of law. Some Sections of the ECtHR have gained a reputation for being more “violationist” with respect to particular articles, whilst others are seen as the opposite, the classic tension being between those who side with Art 8 and those with Art 10 in private life and media issues. If the Court doesn’t provide legal certainty when it comes to interpreting the Convention, it really doesn’t serve a useful function at all. That’s why we don’t just leave interpretation of the Convention to national courts.
Some efforts have been made to help cut down on this structural backlog, including the introduction of pilot judgments in the Interlaken reforms, that gives the Court and the CoE’s other bodies more of a hands-on set of monitoring powers in respect of states which fail to comply with judgments. Secondly, there have been reforms to the admissibility procedure, which has helped to cut down the number of cases reaching a hearing on the merits. Something like 90% of applications from the UK are eventually thrown out at the admissibility stage, and that’s before a merits hearing is even entertained. Thus although everyone should have the right to petition Strasbourg if they have exhausted domestic proceedings, it’s clear that Strasbourg should be giving shorter shrift to a lot more of the cases that come its way.
The original proposals in relation to the Brighton Declaration proposed further changes to the admissibility criteria. The suggestion was that where a national court has passed judgment on a Convention issue, and has not “clearly erred” in its interpretation of the Convention”, the ECtHR should declare the application inadmissible. This reflects the principle of subsidiarity and the idea that member states should have a greater “margin of appreciation” in how it interprets the Convention where there is not otherwise a Europe-wide consensus on a particular issue or practice. This does not prevent domestic courts from acting robustly in defence of human rights; quite the contrary. If anything the culture that everything will eventually end up in Strasbourg has led to too great a hesitance by national courts to find a violation until Strasbourg has had a say on how the ECHR is to be interpreted on a given issue. See for example the reliance the UK Supreme Court placed on Strasbourg jurisprudence when making major developments in interpreting the rights of immigrant children.
There is some legitimate criticism of this provision. Much falls on how “clearly erred” is interpreted by the Strasbourg Court (the discussion about which will no doubt form the body of a great deal of case law!). There is actually a risk it its practical effect would be to reverse the trend of a summary admissibility proceeding. “Clearly erred” looks and smells a lot like the residual judicial review argument of “irrationality” or “unreasonableness” in domestic law which in reality entails an examination of the merits of a decision despite dressing itself up as a procedural protection. Far from reducing access to the Strasbourg Court, it could initially lead to the admissibility proceedings taking much longer and increasing the backlog of cases to sift through.
I have considerable confidence, however, that it would not be interpreted in that light or that it would lead to a significant change in the number of cases automatically declared admissible. Indeed on the rare occasion public discussion has actually looked at this detailed proposal, they seem to ignore completely the residual power in the Brighton Declaration to take a case where it concerns an important matter of interpretation of the Convention. This can be construed so widely as to render the subsidiarity principle, at least in respect of anything the *Strasbourg* Court has not yet had a say on, nugatory. Having looked at the detail of the proposed changes, I simply don’t find the argument that access to justice will be unduly restricted persuasive at all.
The additional idea of preliminary rulings is a good one in principle. It’s a practice already adopted by the CJEU in respect of interpretation of EU law provisions, where national courts can seek a clarification on how international law should be interpreted in light of a particular (perhaps hypothetical) set of facts before issuing a domestic judgment on the merits. This would be in-keeping with the principles of the Human Rights Act and the idea that we should be trying, in so far as is possible, to get it right before Strasbourg ever has to get involved. There are some logistical problems and the proposals need to make clear that such a judgment does not necessarily tie the hands of the Strasbourg Court (this is the relatively limited area where the “clearly erred” criteria might pose problems) although I’ve not seen much/anything on the detail of how this idea has developed in the subsequent discussions.
Overall, I think both the proposed reforms with the Declaration itself (and what seems to have resulted from it) is an improvement on the status quo, but it won’t solve the underlying problems of the Court, at least not in the short-term, though it might make future reforms a lot easier to accommodate. I used to be hugely sceptical of the ECtHR’s work, but having studied it more closely in an academic context over the last year or so and spoken to people who work for the Council of Europe and the Court, I’ve been won round to its role as a residual protection against signatory states quite literally taking liberties. But the talks at Brighton re-iterate something that we should never forget: the Convention is a floor not a ceiling. The ultimate responsibility for protecting the rights of citizens should fall on individual sovereign states.
I happen to think that the ECHR’s “floor” for liberty should be raised on a number of issues, including giving full voting rights to all prisoners incarcerated by the state and, indeed to ensure that people like Qatada are not deported to countries with horrific excuses for justice systems (and I provisionally include the USA in that, not just Jordan!). But I also think we need to be more ambitious in strengthening human rights for ourselves in the UK and both our politicians and our judges need to be more courageous about this, even if it flies in the face of public opinion or the views of the reactionary press. We need to change our culture from being content to “comply” with the global human rights consensus to leading it. That is the spirit in which the Convention and the Court were brought into existence. It’s time for us to put forward a clear alternative to the salami slicing tactics of Tory and Labour alike to whittle down our rights to whatever they can get away with or whatever will appease the Daily Mail.
Congratulations if you read all that, but for gawd’s sake get a life!
Now I am sure I have no life: I really enjoyed it! Thanks
Some very strong and welcome statements in the Brighton Declaration about about the obligation of states to implement the Convention proactively – our primary mechanism here in the UK is the Human Rights Act which should be strengthened not weakened, so lets hope this puts to bed any aspirations from Tory ‘colleagues’ on repealing it.
Some rather wooly language though on inserting subsidiarity and extended margin of appreciation into the Preamble of the ECHR – implies much more discretion being sought by some states to filter out cases through national jurisdictions and flexibility over over implementing compliant policies