Rehashing old ideas? A response to the Bill of Rights Commission’s proposals

20 September 2011 by Graeme Hall

As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”

But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?

by Graeme Hall

Recommendation 1: Reducing the Court’s caseload by reinforcing the principle of subsidiarity

The principle of subsidiarity means that Member States must bear the primary responsibility for securing the protection of the rights contained within the Convention to their citizens. The Commission cites with approbation the 2001 Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights that the European Court is not a “court of appeal from national courts”. And, indeed, the Report does not state that the Court allows itself to be used as such.

However, the 2001 Report does state that “there are circumstances in which the Court may be called upon to make its own assessment of the facts” because, as the final arbiter of the Convention, the Court must decide whether national systems have failed to secure Convention rights. This, however, is not an infringement of the principle of subsidiarity (i.e. that allegations of human rights abuses must first and foremost be dealt with at national levels).

It may well be that when the Commission refers to subsidiarity, it actually wants to review the ‘margin of appreciation’ which the Court affords to Member States. Its earlier quotation from Buckley v UK would seem to intimate so. It would also chime better with Bringing Rights Back Home, a previous report by one of the Commissioners.

The margin of appreciation is the wiggle-room which the Court may afford Member States over the implementation of the Convention, to take into account each States particularities (culture, history, etc.). Often Member States and the Court disagree as to whether an issue should fall outside of the Court’s jurisdiction and into the Member States’ margin of appreciation. Prisoner voting is one example.

If the margin of appreciation is the real issue, (and a much thornier issue it would be, too) the Commission, comprised of many highly respected lawyers, should make the distinction clear and not conflate two legal principles. However, given that the term ‘margin of appreciation’, a well-known doctrine of the Court, does not appear in the Advice, the recommendation to reinforce subsidiarity is more appropriately directed at Member States rather than the Court; for Member States are best placed to ensure that appropriate domestic mechanisms exist to protect Convention rights. The Court can only review those mechanisms, not change or implement them.

Recommendation 2: Reducing the Court’s caseload by introducing screening mechanisms to reject applications of “minor or secondary importance”

Does this sound familiar? Protocol 14, brought into force in June 2010, introduced Article 35(3)(b) of the Convention, which states:

The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(b) the applicant has not suffered a significant disadvantage…

The two sound pretty similar. Admittedly, the Commission later rewords its recommendation so that the Court can decline cases which do not raise “a serious violation of the Convention.” However, this still falls within the Court’s interpretation of Art. 35(3)(b). In Korolev v Russia the Court stated that:

… the new criterion [of no significant disadvantage] hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court… The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case. (my emphasis).

It is difficult to see what the Commission’s recommendation adds, given that the thrust of it appears to have been implemented by previous reforms.

Recommendation 3: Reviewing how the Court awards ‘just satisfaction’ (damages)

The Commission questions “whether it is properly the function of an international court of last resort to be entrusted with the task of calculating and awarding just satisfaction”. The Commission highlights a recommendation contained within the 2006 Report of the Group of Wise Persons to the Committee of Ministers that the award of just satisfaction should pass to Member States.

The Wise Persons’ Report was considered in 2007 at the San Marino Colloquy, held to consider reform of the Court. In relation to this specific recommendation, the President of the Court, Jean-Paul Costa, stated that it:

…is far from gaining the Court’s approval… Just satisfaction would risk leading to unjustness and dissatisfaction

I agree. While it is not clear how changing the award of just satisfaction will improve the Court’s efficiency and, moreover, why the Court cannot be “entrusted” with this task, surely requiring Member States to award damages will need supervision, appeal mechanisms and add further layers of bureaucracy; in turn causing more delay. The proposal seems self-defeating.

Interestingly, a similar recommendation was made in 2005 by Lord Woolf to the Council of Europe (Review of the Working Methods of the European Court of Human Rights). Here, the introduction of a specialist unit within the Court’s Registry to assess just satisfaction was recommended. It may well be that there is something in Lord Woolf’s recommendation although, again, it is not clear how this would improve efficiency.

Recommendation 4: Enhancing judicial selection

The Commission is worried about the imminent loss of a considerable number of experienced judges. In 2011, 4 judges will retire, including the current President. In 2012, 8 judges will retire, including the upcoming President and UK national, Sir Nicolas Bratza (more details here). Accordingly, it welcomes the implementation of an Advisory Panel of Experts to consider judicial nominations of Member States. So much so that it wants its role to be “enhanced and upgraded”; indicating that further funding may be required.

This is a sensible proposal. It is vital that judges have the requisite qualifications and, as the Commission notes, “sufficient standing and authority to command the full respect of national judges”.  This is even more imperative given that the reasoning of the Court, even in seminal Grand Chamber cases, can be confusing.

However, in reality this recommendation is directed at Member States and the Council of Europe to ensure that there are appropriate procedures for the selection of judicial candidates. Thus, the recommendation is not aimed at reform of the Court per se.

Overreaching

Sending a separate letter to Ministers containing ideas for reform, distinct from the formal interim recommendations, is unusual. While some of the ideas therein are incredible (e.g. allowing Member States to legislate their way out of decisions which they don’t like flies in the face of the rule of law – see Obiter J’s comments,), the fact that its content could not be incorporated into the interim advice, possibly as an appendix of ‘further ideas for consideration’, does not bode well for the Commission’s credibility. It is a stark reminder of the fundamental philosophical deadlock between the Commissioners, and increases the sense that the final recommendations will be a whitewash.

Nevertheless, regarding the Commission’s formal interim recommendations for reform, the Commission clearly views the “considerable programme of reform” already undertaken by the Council of Europe and the Court as insufficient to deal with the “serious problems” of the Court’s ever-increasing caseload. However, before attempting to push through an agenda of reform, the Commission and the UK Government should reflect on the words of the Secretary General to the Council of Europe, Terry Davis, at the 2007 San Marino Colloquy. Regarding further reform proposals he said:

Many of the … proposals are not new. Many of them were examined during the negotiations for Protocol No. 14. This does not mean that we should not re-examine them, but it does mean that we should begin by checking whether the reasons for not including them in Protocol No. 14 are still valid today.” (my emphasis).

I have outlined some of these previous reforms before, and I have also listed some of the major recent reforms and, reports on reform, below. My general view is that current calls for reform are motivated by the belief that the Court’s rulings are too interventionist; that its decisions are intruding into areas which should remain within the exclusive competence of Member States; that it is not affording the appropriate margin of appreciation.

Whilst this may be a legitimate concern, calls for reform based on the Court’s backlog as symptomatic of its dysfunction are a smokescreen. A reality-check is needed. Better to pinpoint the real issue of whether the Court’s competence should remain, and tackle that head-on.

If there is agreement on the need for reform, the interim recommendations won’t produce it; they are either rehashed ideas or would be better directed at Member States. Moreover, the recommendations won’t address whether the Court is overreaching its jurisdiction.

Addendum: Recent examples of reforms and Reports on reform

• Protocol 11 came into force in 1998 – replaces the European Commission and Court of Human Rights with the European Court of Human Rights and rationalised procedures to deal with cases and admissibility.
• Protocol 14 came into force in 2010 –Measures introduced to tackle the backlog of case, including: only 1 judge ruling on admissibility instead of three; implementing the ‘pilot procedure’ for repetitive cases against a State; new admissibility criterion of ‘no significant disadvantage’.
• Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights, (2001), referred to in the Commission’s advice;
• Review of the Working Methods of the European Court of Human Rights (2005) Lord Woolf; Amongst others, recommended introducing a specialist unit within the Registry to assess just satisfaction.
• Report of the Group of Wise Persons to the Committee of Ministers, (2006) referred to in the Commission’s advice;
• San Marino Colloquy of the Committee of Ministers of the Council of Europe, Future developments of the European Court of Human Rights in the light of the Wise Persons’ Report, (2007).

• Prisoner votes and the democratic deficit
• Bill of Rights Commission publishes advice (and squabbles) on European Court of Human Rights reform
• Reform of the European Court of Human Rights: response to a modest proposal