It is rightly said that 95% of statistics are made up. Today’s Daily Mail front page headline contained a typically exuberant statistical claim: Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals. According to journalist James Slack “Unelected Euro judges” are mounting a “relentless attack on British laws laid down over centuries by Parliament”.
The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.
The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:
Between when it first signed up to the Court‘s jurisdiction in 1966 and the end of 2010, the UK faced over 350 rulings from the judges in Strasbourg… In about three-quarters of these judgements the Court ruled that the UK had breached a Convention right.
This is simply misleading. Only counting final judgments of the court obscures the reality of how it operates. In fact, the number of claims which are brought to the court is enormous compared to the amount which reach full hearings. This is because the vast majority are struck out at an early stage, and those strike outs are effectively victories for the UK.
Judges consider the case and decide that it is “manifestly unfounded”; similar to when a domestic court finds that a claim has no reasonable prospects of success. This is a very high bar, which means that the vast majority of claims don’t reach it. Some of these will be not worth the paper they are written on, but many are genuine claims and to ignore them when considering the court statistics is to miss most of what the court does.
Broadhurst’s figures are taken from the European Court of Human Rights’ own document, which reveals that since 1966, out of a total of 443 judgments against the UK, in 271 there was a finding of at least one violation of the European Convention on Human Rights. This is compared to 86 finding no violation.
But this is just the tip of the iceberg. As demonstrated by the rather nice pie diagram in another of the court’s own reports, since 1966 97% of cases against the UK were declared inadmissible, that is they were struck out. This means that in reality, of all the claims brought before the court against the UK (in the region of 15,700, by my calculation), only 3% made it to full hearings, and a – let’s face it miniscule – 1.7% succeeded.
So, not three quarters, as the Mail suggests, but under one in fifty cases brought before the court against the UK were successful. As it happens, the Strasbourg court is good at publishing statistics, but perhaps could have been clearer with these, for example by including the total number of claims brought in its Violations by State table.
But in any case there is no excuse for a significant report – signed and prefaced by 10 MPs – making such a hash of its statistics (and I haven’t even mentioned the Mail’s “unelected” judges, who are actually elected).
Presenting the figures in this way is a bit like watching X-Factor from the live finals, which begin with 12 contestants, and extrapolating that since one of them wins in the end, therefore almost 10% of X-Factor applicants ultimately win the contest. In reality tens of thousands apply, so only a tiny percentage of them “win”, but most are “struck out” as being bad singers in the months before the finals.
The high proportion of finally decided cases which are successful is interesting, but it hardly represents a court which is mounting a “relentless attack” on the British laws. Indeed, there are so few fully heard cases that any statistical analysis is fairly meaningless anyway.
In fact, what the statistics do reveal is that the European Court hears a tiny amount of cases against the UK each year; just under 30. The success rate for the lucky few Claimants is quite high, but it is about the same the success rate across all states, and is probably is more a reflection of the high “manifestly unfounded” bar the court sets for Claimants than any “relentless attack” on British justice. In other words, only good cases get through, so a lot of those ultimately win.
So, legal researcher Robert Broadhurst can pop up on to the legal naughty step for disservices to statistics, and the Daily Mail and Telegraph journalists can join him for their gleefully unquestioning acceptance of his statistical sleight of hand.
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No surprise there, then. “Research” carried out for politicians tends to have about the same relationship to objective academic research as Lord Scarman did to break-dancing.
As the impugned author, I would like to respond to this.
As Mr Wagner appears grudgingly to accept, the statements made in my report are correct. Quite simply, the focus of that paragraph was on the actual judgements of the ECtHR regarding alleged violations of Convention rights because it is these that can impact on the British legal system, under the UK’s ECHR obligation to abide by final judgements of the Court directed at this country.
Those who read the report will see that its main focus (when it comes to the ECHR) is on the qualitative effect of the Strasbourg Court’s jurisprudence on this country. For example, as we are all aware, that Court has currently demanded that the UK give at least some convicted prisoners the vote. As the MPs who wrote the foreword to the report say, who really believes that convicted prisoners have an inherent right to vote while they are behind bars for their crime? I can’t find many people. And yet we must suspend our disbelief and change a provision of primary legislation that is supported by the great majority of MPs so as to bow to the wishes of Strasbourg (which, of course, is not accountable to the British people). This is incompatible with our democracy and is ruining the reputation of human rights, along with other judgements.
I would advise people to read the report themselves (at http://www.makinghumanrightswork.org.uk) before coming to their own view on it.
I should point out that I do not plan to get drawn into a protracted exchange on this website as I simply do not have the time.
Robert – thanks for the reply. I agree that the issues you raise in the report are important, but don’t you agree that by ignoring the vast majority of cases which get struck out as inadmissible is misrepresenting the figures?
Firstly, I would like to thank Adam for bringing this dodgy report to my attention. Alarm bells ring when it is reported in the Daily Mail and Daily Telegraph, rather than in serious newspapers. Adam restricted his criticisms to the dodgy statistics. I have read the report and conclude that it is as dishonest as the Dodgy Dossier relating to WMD.
The title “Human rights: Making them work for the people of the UK” sounds good. But, you don’t judge a book by its cover. The Foreword is written by “The Dirty Ten MPs”. It begins “We are proud of the United Kingdom‘s record of supporting human rights, both at home and abroad”. However, Vera Baird QC, MP, Solicitor General paints a different picture on 12 November 2008: “Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy.” http://www.attorneygeneral.gov.uk/NewsCentre/Speeches /Pages/EuropeanLawHumanRights.aspx To be proud of a good human rights record is laudable, to be proud of a bad one has to be something only praiseworthy in a dictatorship.
“The Dirty Ten MPs” continue “Fundamental rights are precious and must be constantly defended”. I agree. The ECHR contains fundamental rights. They are precious to those victims of human rights abuse, for example, convicted prisoners denied their human right to vote. The Council of Europe refers to Human Rights Defenders. I am proud to be a Human Rights Defender. I am only too aware, living in Britain, that human rights must be constantly defended. So, why are “The Dirty Ten MPs” attacking fundamental human rights?
“The Dirty Ten MPs” continue “As elected representatives we take that responsibility very seriously”. The evidence does not support that statement. Parliament has abdicated responsibility in relation to Hirst v UK (No2).
“The Dirty Ten MPs” continue “However, it is obvious that something has gone badly wrong. When we are ordered by the European Court of Human Rights, against our firmly held beliefs and those of our constituents, to scrap a provision of an Act of Parliament that stops convicted prisoners from voting, it is time to reflect on how human rights are being applied”.
It is not obvious at all that something has gone badly wrong. Certainly not with the ECtHR or its judgments.What is obvious is that Parliament abdicating responsibility is wrong in the extreme. The ECtHR issued such an order because it was found that the UK was guilty of a human rights violation. The UK’s firmly held beliefs were argued before the Court and found to be wanting. The beliefs of “The Dirty Ten MPs” constituents are totally irrelevant, because Hirst v UK (No2) was a case of the Individual v the State. The UK had tried to shield behind public opinion, but as Judge Caflisch observes “the decisions taken by this Court are not made
to please or indispose members of the public, but to uphold human rights
principles”. Therefore, it is cowardly for “The Dirty Ten MPs” to continue to hide behind the public once the Court has dismissed the argument and pointed out their irrelevance to human rights.
The report’s author states: “In sum, the main problem the United Kingdom faces when it comes to human rights based on the ECHR, both internationally and at home, is one of judicial interpretations of human rights that offend the common understanding of those rights, but which the country is forced to accept. This appears to be a result of both judicial activism and the inherently ambiguous nature of human rights, combined with the UK‟s obligations under the ECHR”.
I don’t see a problem with judicial interpretation by the ECtHR of the human rights under the ECHR. I do see a problem with the concept of a common understanding of those rights, I don’t believe there is such a thing as a common understanding in this specialised area of knowledge. There is no evidence that the public are offended. There is evidence of certain MPs and media claiming that the public are offended. We already know that the ECtHR does not care whether public opinion is offended. The report’s author fails to include that under Labour’s consultation exercise 47% favoured all convicted prisoners getting the vote, whereas only 4 people not 4% supported the Government’s limited franchise option.
The report’s author states: “To ensure the Strasbourg Court did not impose on the British people interpretations of human rights that offended their common understanding of those rights, the democratically accountable UK Parliament should be given the power to overturn such ECtHR judgements directed at the UK”.
As stated an application to the ECtHR involves the Individual and the State not the public. When it comes to human rights, democracy and the rule of law the ECtHR has found the UK to be a failing State. It has identified systemic failures between the Executive, Parliament and Judiciary. Democracy would be a fine thing. A Parliament which cannot act responsibily in fully complying with a ECtHR judgment or abiding by the ECHR, needs its powers curbing and not extending so it can be judge, jury and executioner.
In sum 2/10 could do very much better!
I think criminals should always have the right to vote. Removing it gives an incentive to the government to criminalise people it doesn’t want to vote.
“As the MPs who wrote the foreword to the report say, who really believes that convicted prisoners have an inherent right to vote while they are behind bars for their crime? I can’t find many people. And yet we must suspend our disbelief and change a provision of primary legislation that is supported by the great majority of MPs so as to bow to the wishes of Strasbourg (which, of course, is not accountable to the British people). This is incompatible with our democracy and is ruining the reputation of human rights, along with other judgements.”
Yes? I have no problem with this. Just because a lot of people think something dies not make it right -. Democracy is grossly overrated. (formal fallacy: argumentum ad populum.)
The fact that Strasbourg sometimes ignores what the self-righteous lynch-mob bandwagon barks actually enhances the reputation of human rights rather than ruins it.
Robert – well, you can count me as one person who believes prisoners should be able to vote, and I know many other people who agree. Maybe you’re just hanging out in the wrong circles?
It is misleading to say that the ECtHR is ‘incompatible with our democracy’ and Strasbourg is unaccountable. An elected British government signed the European Convention, and indeed was one of the driving forces behind it. An elected British government chose to allow individual petition to the European Court. An elected British parliament passed the Human Rights Act, which in fact allows a number of safeguards (far more than in other jurisdictions) for ensuring that Strasbourg judgments cannot automatically override legislation. The judges are elected by the Parliamentary Assembly of the Council of Europe, on which the UK is represented by 18 British parliamentarians (most of them elected; there are some House of Lords members in there too).
It is not the ECtHR that is ‘ruining the reputation of human rights’ – it is conservative media organs like the Daily Mail and a group of conservative (including some ‘big c’ Conservatives, yes) politicians who are doing this, through misleading and inaccurate information (including by commissioning biased reports like this).
A good analysis of a flawed report. I intend to write a response trashing the report even further.
Adam,
You appear to be arguing that because there are lots of completely hopeless claims lodged with the Strasbourg Court – where a claimant hasn’t suffered any detriment at all, or where no arguable human rights issue arises – this somehow provides justification, explanation or excuse for the strikingly high proportion of decided cases in which the ECtHR seeks to substitute its policy preference for that of our domestic Courts, Parliament or Government.
The argument you make simply doesn’t bear scrutiny. For example, if you and I tomorrow decide to lodge 50, completely spurious, claims with the ECtHR these would be recorded and form part of the statistics relating to claims which the Court has ‘rejected’. This doesn’t tell us anything at all about how intrusive, or not, the Strasbourg Court is relative to our own democracy.
Any debate about the relationship between the ECtHR and our domestic institutions can only sensibly be conducted by focussing on the treatment of those cases in which some arguable issue of human rights arises i.e. those cases which are not declared manifestly ill-founded and so progress to a final judgment.
In all fairness, it would seem to me that the author of the report (whom I do not know and have never met) is amply justified in focussing attention on this statistic and your charge that he has ‘misrepresented’ ‘the figures’ seems misguided and unfounded.
Joe – thanks for the comment. As I said in the post, I agree that it is important to analyse the number of decided cases in which the court reaches a final judgment. But is it fair to do so with absolutely no consideration of the thousands of cases which don’t make it to a final judgment?
You are right to say that if I or you decided to lodge 50 hopeless cases tomorrow, they would be recorded and form part of the rejected claims statistics. But who is to say what proportion of those struck out claims are entirely spurious, written on the back of an envelope or whatever? The point is that the report and the articles surrounding it don’t engage with that question at all.
It may be that upon proper analysis, it turned out that the court’s “manifestly unfounded” bar was extremely high, making it likely that cases which get through it are going to be successful. It might be that the bar is actually quite low, in which case the question of why so many cases (and I’m not sure it is 3/4, by my maths around it is closer 60%) succeed is a troubling one.
But, none of these questions can be answered without a much more careful consideration of the figures, and I don’t think the report provides that, and this is why it was easy for the Mail and Telegraph to pick up on the headline figures as they did.
Pleasure be assured that such attitudes can easily be found amongst certain groups of politicians and their allies (who do not deserve to be qualified as journalist) allover Europe.
Joe – it’s very problematic to split cases into “inadmissible cases” and “decided cases”. Often a case is deemed inadmissible on the basis of a very considered decision. As an example, the admissibility decision App 71916/01 Maltzan v Germany was taken by the Grand Chamber (17 judges) and is 38 pages long.
Often, too, the inadmissibility will follow explicitly from a conclusion that the state has not overstepped its margin of appreciation; see the last paragraph of App 71074/01 Mentzen v Latvia (a 30-pager).
It’s difficult to maintain that decisions like that have no bearing on a proper analysis of how willing the Court is to interfere.
Adam/Tom,
The inadmissibility criterion is whether the claim is manifestly ill-founded i.e. is there an arguable, or possibly seriously arguable, case. That is, inherently, not a high threshold.
Tom is right to say that occasionally a case’s factual complexity, procedural history or, very rarely, the number/difficulty of the legal issues raised results in a relatively substantial inadmissibility judgment. If the ECtHR has fully analysed the substance of the claim and produced a full judgment before concluding that it is inadmissible then I would agree that these should be included within the relevant sample for discussion (examples which spring to mind are Friend v UK or OBG Ltd v UK).
However, this doesn’t really move the debate much further forward – these are still cases where the Strasbourg Court itself has determined that the claim is so fundamentally flawed as not to merit substantive examination.
Further, some very, very weak claims surmount the admissibility threshold e.g. the Article 10 challenge in regard to the publication of the Naomi Campbell photographs in MGN v UK, the A2P1 challenge in Ali v UK. It is difficult to contend, either by reference to the ECtHR’s own case-law or recent decided cases, that admissibility is a particularly high bar.
We should be able to agree that in assessing the merits or demerits of the ECtHR what is likely to be instructive is what happens in those cases where there is some issue of substance or difficulty to be addressed. It seems a little disingenuous to suggest that the fact that many completely hopeless claims, unsurprisingly, do not go anywhere tells us anything useful at all about the institution or its practice.
In any event, I am not convinced that internet postings are conducive to a sustained discussion so let’s reconvene at a future ALBA event over a beer or glass of wine.
It’s a deal! Have a good weekend
I believe it was a former Conservative Prime Minister, Benjamin Disraeli, who opined that there were ‘Lies, damned lies….and statistics.’ His latter day party colleagues would do well to remember their former leader’s wise words and to avoid rags like the Daily Mail with unsubstantiated lies, damned lies and statistics. I note the “report” has been produced by a self-styled “European Research Group” which, I assume, is trying to ape the kind of antics right wing piliticians in the USA get up to – all very unBritish. I do not argue with the contention that the ECHR and Court should be improved but what is the mechanism for doing so? This is something the “European Research Group” should be examining instead of inventing spurious “statistics”.
Have I missed the point here, even taking on board a very dodgy way of interpreting statistics by a non neutral legal advisor with a clear axe to grind and pocket to line…This is 350 rulings over 45 years or so years? Far less than ten rulings a year? Hardly a “relentless attack on British laws laid down over centuries by Parliament”. Oh I and loved the X factor analogy…..Spot on…!!
14bis was brought in to deal with the avalanche of new claims from places like Poland. The “Supreme” Court was established as the UK was losing so many cases. But don’t worry, 4 years on and S & Marper hasn’t even been implemented!