Hyped up fuss

21 April 2011 by Adam Wagner

This has been an interesting week for the continuing “debate” over the future of the European Court of Human Rights. Stay tuned for an explanation of the quotation marks.

First, Dominic Raab MP has released a pamphlet with the think-tank CIVITAS entitled Strasbourg in the Dock. Raab, a former lawyer, has been a vocal opponent of the European Court of Human Right as well as the Human Rights Act. The pamphlet can be read here and the press release and summary can be found here. He finds some of the European judges are “woefully lacking in experience” and, as a consequence, “are undermining the credibility and value of the Court“.

Raab recommends enshrining free votes on Strasbourg ruling, guaranteeing that our Supreme Court has the final stay on the interpretation of European Convention rights in the UK, preventing the courts rewriting express terms of legislation under section 3 of the Human Rights Act (note that the act refers to this as “interpretation”), removing fetters on deportation and to pursue reform of the Strasbourg court.

The pamphlet also has a preface by Lord Carlile of Berriew QC. Carlile was formerly the UK’s terror law watchdog and in his final report he caused a furore by warning that the UK had become a “safe haven” for foreign suspects due to its failure to persuade the Strasbourg court that when a person risks ill-treatment abroad, this must be balanced against the risk to national security of them remaining (see para 79).

In his preface, Carlile says that “a narrow interpretation of [Article 3] of the Convention has had a chilling effect on deportation, and therefore on public safety“. He also laments the “alarming evening that the public regards the Convention and its consequences” as “out of step with reasonable public expectation.”

The Telegraph and Daily Mail have picked up on Raab’s and Carlile’s comments. The Mail blames Deputy Prime Minister Nick Clegg for the “chilling effect” and the court “riding roughshod over our sovereign parliament” (the same Parliament which, it should be mentioned, voted to abide by European Court of Human Rights rulings in the first place).

Meanwhile, out in Strasbourg, the Council of Europe, which monitors states’ compliance with European Court of Human Rights judgments, has published its 4th Annual Report on the Supervision of the Execution of Judgments (hat-tip to the ECHR blog). The number of cases pending at the court has again risen year-on-year by over 1,000 to 9,325 (see page 30), The prisoner votes issue is discussed on page 190, but the report was written before the latest development in the ongoing saga.

It should be remembered that despite the fuss over prisoner votes and antipathy towards the Strasbourg court, the UK is actually a comparatively good citizen in terms of human rights. €371,160 was awarded to claimants against the UK (page 52) as compared to over €7m against Romania and Russia and an enormous €24,542,000 against Turkey. And there were only 13 new case resulting in damages against the UK in 2010, as compared to 189 against Russia and 287 against Turkey (page 54).

Also on prisoner votes, former Lord Chief Justice Lord Woolf has told the Guardian that he “can’t understand… the antipathy towards it”, and

What we want to do is make prisoners much more responsible, and giving them the responsibility of voting seems to me wholly consistent with that. I think it is very unfortunate that there is all this hyped up fuss about it.

And, the House of Commons Library has released a new and detailed briefing paper to be used by MPs in support of their Parliamentary duties: European Court of Human Rights rulings: are there options for governments? It is good to see quotes from legal bloggers including Carl Gardner (pages 9, 32), Rosalind English (22, 24) and myself (4, 29). The paper is interesting and deals with the key issues in detail, including notably the question of whether the UK can continue to ignore the prisoner votes ruling. In essence: “States cannot legally ignore a Court decision that they are in breach of the Convention” (page 12).

Finally, why the quotation marks? I would paraphrase Lord Woolf in that most of the debate over the European Court of Human Rights amounts to “hyped up fuss”. The fact remains that the Bill of Rights Commission has its hands tied as it cannot recommend withdrawing from the European Convention, but rather must “incorporate… and build” upon the UK’s obligations, which include abiding by decisions of the European Court. This was part of the initial Coalition agreement between the Conservatives and Liberal Democrats which promised to  ensure “that these rights continue to be enshrined in British law”, and no amount of bluster is likely to displace it.

That is not to say that there won’t be some tweaking of human rights law in the UK, but despite a long wish-list from practitioners and opponents of the Convention, there is unlikely to be significant change.

It may be that the Commission recommend tweaking the Strasbourg court too, but in reality – despite taking on the 6 month chairmanship of the Council of Europe in a few months – the UK will have little influence on the reform of the court save for using its vote in the Council of Europe.

So, watch out for a spirited debate but expect little change in this Parliament at least.

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