Reforming or redefining the European Court of Human Rights? – Noreen O’Meara

This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical.  Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights. 

It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.

The UK’s chairmanship of the Council of Europe will be defined by the reform measures to be agreed at April’s Brighton Conference.  Most of the current proposals should come as no surprise.  Some clearly stem from previous agreements at Interlaken (2010) and Izmir (2011) and have long been discussed within Council of Europe circles.  Heavy hints had been dropped by Attorney General, Dominic Grieve and interim advice (with accompanying letter) was provided to the government by the Commission on a Bill of Rights, influencing the blueprint.  Days before the it was made public, the ECtHR adopted its own Preliminary Opinion confirming that the Court supports the reform process subject to two conditions: first, that the right of individual petition is preserved, and second, that effective mechanisms (national or international) are put in place to accommodate well-founded cases the Court cannot deal with (para 25).

The proposals, as currently drafted, do not meet these conditions in a way which successfully preserves the essential role and function of the Court.  They may also represent a missed opportunity for the Council of Europe to really grapple with the tricky issues of remedies and resources, which should be comprehensively reviewed if the Court’s caseload is to be made manageable.  Granted, problematic suggestions raised in recent months have not made the draft (mooted “democratic override” ideas have wisely been rejected, with more promising ideas to reconsider remedies at the ECtHR level shelved (para 42(e)(iii)).  The Draft is a melting pot of proposals which—one should hope—will be significantly refined during the coming weeks.

Subsidiarity

“Subsidiarity” is the theme which underscores the proposals and the UK-led debate surrounding them.  While the importance of the concept of subsidiarity in the ECHR context is commonly recognised, it is not always clear whether the drafters and the Court are on the same page (on the UK government’s apparent take on subsidiarity, see Ed Bates’ discussion).

The UK’s approach to subsidiarity in the Draft has led to a mix of proposals.  Some are clearly pragmatic measures (envisaged at both national and ECtHR levels) to help the Court function more effectively (much needed reforms to the judicial appointments process and measures aiding implementation of the Convention at national level arguably fall into this category).  Other proposed measures in areas of priority for the Court have the potential to go further than this—not only streamlining the Court’s procedures, but potentially impacting on its essential nature (certain proposals relating to admissibility—the Court’s most urgent problem).

Two examples of reforms in this latter category relate to measures which would help the Strasbourg court control its docket.  First, para 23c of the Draft would enable the Court to find applications inadmissible unless (i) the national court “erred” when interpreting Convention rights; or (ii) “a serious question” is raised relating to the interpretation or application of the Convention.

In a rare interview given before the proposals became public, Sir Nicholas Bratza (President of the European Court of Human Rights) was careful to emphasize the Court’s role in interpreting and applying fresh admissibility criteria.  Reacting to an earlier version of the proposal, Judge Bratza observed

We would have to decide whether there was a manifest error on the part of the state authorities concerned, and in particular of the national courts concerned … Ultimately, in those cases we would be the ones who would be interpreting the provision and applying it.

There seems to be a tension, with a drastic admissibility criterion aiming to cull the Court’s docket on one hand, and a Court naturally keen to assert its control over the docket on the other.  This approach risks orienting the Court towards what Bates describes as “irrationality review” (a risk reinforced by the (deliberate?) choice of words in paras 16 and 17 of the Draft discussing the respective roles of the Strasbourg court and national courts – see Bates’ detailed commentary here).  The suggested approach also has considerable potential to damage judicial comity—undermining the “strong and open dialogue” which the Draft seeks to promote (para 19c).

Advisory opinions

A second reform which strays into the territory of affecting the role and function of the Court involves a new mechanism entirely.  The proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of cases.  Once the national judge does so, this would (in all but exceptional circumstances) prevent a further application to the Strasbourg court.

Too much is left to chance.  This human rights version of the ‘preliminary reference’ model in EU law is couched in language which could harm comity and access to justice.  Its current loose drafting should itself be a warning bell to the negotiators.  Every proposed element of the procedure is optional (the mechanism is opt-in, highest national courts would have discretion on whether to use it, advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  The extent to which this initiative would impact the Strasbourg court’s docket would depend on its approach to delivering advisory opinions—the ECtHR may have considerable latitude here.

While this proposed mechanism may achieve aims of developing a more co-operative dialogue between national judges and the Strasbourg court, its strict approach against applications to Strasbourg where the mechanism is used seems to be a further attempt to relegating the EctHR’s function as the ultimate arbiter in human rights disputes concerning the Convention.  Nevertheless, it’s possible that this measure may have more continental appeal and that a more robustly drafted version may prove workable.  The ECtHR plans to issue a ‘reflection paper’ on this proposal in the near future.

Lacking rigour

Reform proposals must be considered in context.   Impacts on the Strasbourg court, on its relationship with the Court of Justice of the European Union (in light of imminent EU accession to the Convention), and on adjudication in national systems should be considered (for a UK perspective, see Mark Elliott’s excellent analysis).  Given the enthusiasm for reform, it is a shame that many of the key proposals either lack rigour or appear misplaced.  Logical recommendations are made on the appointment of judges and implementation of the Convention, but the overriding needs to tackle the docket and admissibility are not yet successfully addressed.

If the Court itself openly called on states to help “identify solutions” to its problems, a mature debate on the Court’s future must be long-overdue.  Negotiators should take steps to eliminate the Draft’s riskier elements, reforming without redefining the Court’s essential character and role.  The resulting Brighton Declaration must genuinely rise above the often fractious political and media backdrop to present coherent plans to maximize access to and the delivery of justice by a Court which is better equipped to do so.  It isn’t in the interests of the UK—or any other states involved—to fail.

Noreen O’Meara  is a Lecturer in Law at the University of Surrey and a Doctoral researcher at Queen Mary, University of London. This is an edited version of a post which first appeared on the UK Constitutional Group Blog

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