Future of human rights court must not be decided by shadowy late night deals – Angela Patrick

13 March 2012 by Guest Contributor

This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.

His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.

Not quite on a par with Rupert Murdoch and “pie-gate”, but for those of us engaged in the human rights debate, the exchanges between Sir Nicholas and the members of the JCHR are likely to be essential viewing.

What’s all the fuss about?

JUSTICE – together with other international and domestic NGOs – last week published a first response to the leaked Brighton declaration, highlighting the corrosive relationship between its most damaging proposals and the politicisation of the human rights debate at home. There are too many parallels to avoid the corrosive link between the increased calls for repeal of the Human Rights Act 1998 at home and the UK attempts in the Chair at the Council of Europe to change the function of the Court from enforcer to advisor.

The draft starts well. We welcome the continued recognition of the important role of the Court – and the right of individual petition – in the protection of rights across Europe. Together with the proposed commitment by States to improve national implementation of the Convention, including through the involvement of national parliaments, this is a solid foundation for the future. For us all to enjoy the rights guaranteed in the Convention, work must begin at home. Integrating the Convention into domestic decision making is the only way to make rights work first time. It is also the principal means of reducing the demand on the Court’s time and resources by diverting cases away from domestic and international courts alike.

Unfortunately, at the heart of the draft Declaration are a series of proposals which would irrevocably change the function of the European Court of Human Rights and reduce its effectiveness.

Ousting the jurisdiction of the Court

The draft proposes to change the admissibility criteria to oust the Court’s jurisdiction except where there is a ‘serious’ question of interpretation or where domestic courts have ‘clearly erred’. This reflects political rhetoric in the UK which calls for greater focus on domestic interpretation of the Convention. However, the Convention sets universal standards binding across Europe. Without a right to ask for an authoritative interpretation, the Convention loses its teeth.

This proposal has two possible outcomes: either the Court shifts its resources in order to conduct an effective qualitative analysis of the decision made at a domestic level (which would slow down its work significantly) or it adopts a twin-track approach, excluding cases which are now admissible without any significant degree of substantive review. This second approach would fundamentally undermine the credibility of the Convention. The Government has not been able to give any examples of cases it would see kicked out under the new criteria. However, it is clear that the Government intends that this new approach to admissibility would significantly reduce the jurisdiction of the Court.

Amending the Convention: Subsidiarity and the Margin of Appreciation

The draft proposes amending the Convention to include direct references to the principles of subsidiarity and the margin of appreciation. This proposal would be far less political (and possibly more convincing) if it were accompanied by accurate descriptions of either judicial principle. Instead, the draft Declaration inaccurately describes a “considerable” margin of appreciation with no distinction drawn between different types of Convention rights, including those where no margin is appropriate. Together with the description of the Court’s jurisdiction as subsidiary as opposed to “supervisory” and its providing “an” authoritative interpretation of the law, this proposal lays bare the political ambition of the draft Declaration to change the functions of the Court substantively.

Advisory Opinions

The draft Declaration explores the possibility of the Court taking the jurisdiction to offer domestic courts advice on request. This seems innocuous, but the draft’s proposes to oust the right to individual petition in any case where an opinion is sought. This is in stark contrast to the impact of judgments in references to the CJEU, which have direct effect in our law, binding our courts. Under the proposals in the draft, it would be open to any Government to ask the Court to ask for an Advisory Opinion.

If an Opinion is given, the domestic courts are not bound by its terms, but the putative applicant is locked out from the Court. So, in, for example, Othman, the UK courts could have asked for an interpretation and then choose to disagree. It could apply the Opinion to the facts in a way which appeared inconsistent. Regardless, Abu Qatada would be deprived of a remedy. Expanding this approach across Europe could ultimately lead to the demise of the right of individual petition, in favour of a judicial dialogue where the Strasbourg Court is used as a sounding board rather than an authoritative voice.

Another day, another Commission?

The UK Government again shows its fondness for a Commission on Human Rights. This time, the draft Declaration proposes the creation of a standing Commission on the future role of the European Court of Human Rights. Sir Nicholas Bratza has already called for the Court to enjoy some “respite” after this round of discussion. While we welcome the recognition in the draft Declaration that any future discussions should involve representatives of applicants, their lawyers and civil society, we query why the UK Government feels the need to include a future hit list for discussion while this one remains so controversial. Proposals which appear to have been too marginal for discussion this time round appear to be parked for discussion by the Commission, including

We agree that there needs to be time for the existing efficiency measures – and the full impact of Protocol 14 – to be properly evaluated. Without evidence for any further reform, it begs the question what purpose any Commission will serve. However, its inclusion may be the lesser of many evils and designed as a political compromise which will allow the Coalition Government to claim a success.

See no evil; hear no evil; speak no evil? (or Who’s afraid of Brighton Mark II?)

Unfortunately, the lack of transparency in the debate about the protection of human rights is frustrating debate both at Strasbourg and in Westminster. Responding to the Commission on a Bill of Rights’ discussion paper earlier in the year, we called on that body to recognise the limits of its functions. Wholly unrepresentative, with a political remit, and with strictly limited resources, the Commission lacks the legitimacy to engage in a real, informed and engaged public discussion of the kind needed to create a Bill of Rights for the UK. Mr Pinto-Duschinsky has complained that his voice was passed over in favour of “NGOs” and the “human rights establishment”. Speaking from the heart of the “establishment”, the Commission has remained as closed and remote from our input as to others.

A year in, we know that the Commission is looking to find a more effective means of consulting with the public. However, we only know this from their own obscure minutes, published two months after their meetings have happened.

The draft Brighton Declaration suffers from the same behind-closed-doors secrecy. Subsequent drafts are to be produced by the UK but published as official Council of Europe documents, which may only be disclosed on agreement of all 47 States. In the Chair, it would be open to the UK to suggest that all members agree to publish.

As it stands, until drafts are leaked, civil society, the press and others are unable to contribute effectively to the speedy negotiations. The future of the European Court of Human Rights must not be determined in a shadowy late night deal in a Brighton hotel. We have written to each of the permanent representatives of the delegations participating in the discussions to call for greater openness in the run up to the Brighton Conference. Without that commitment, we can only watch from the sidelines until the latest leaks appear… Watch this space.

Angela Patrick is Director of Human Rights Policy at JUSTICE.

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Read more

• Part 1 – Who should have the final word on human rights? – Dr Ed Bates
• Part 2 – Reforming or redefining the European Court of Human Rights? – Noreen O’Meara
• Part 3 – Law, politics, and the draft Brighton Declaration – Dr Mark Elliott
• Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates
• A grown-up speech on human rights reform