Tom McNally writes: Why I support reform of the European Court of Human Rights

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

  • Richard Dean 20th Apr '12 - 11:35am

    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?

  • 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.

  • 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.

  • Russell Fraser 20th Apr '12 - 3:37pm

    “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.

  • Rita Giannini Watson 21st Apr '12 - 8:05am

    Now I am sure I have no life: I really enjoyed it! Thanks

  • James Sandbach 21st Apr '12 - 8:03pm

    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

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