UK vs. Strasbourg: don’t believe the hype – Alice Donald

The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.

A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.

Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.

First, the figures.

As is well known, the vast backlog of cases in Strasbourg – more than 150,000 – is largely due to a few serial offenders: Russia, Turkey, Italy, Romania and Ukraine, which between them account for some 60 per cent of pending applications. The UK accounts for less than three per cent.

Contrary to assertions that Strasbourg frequently overrules domestic courts, the UK’s ‘rate of defeat’ is in fact very low (as this blog has previously reported). Of some 12,000 applications lodged against the UK between 1999 and 2010, only three per cent were declared admissible and less than two per cent resulted in a judgment finding at violation of the European Convention on Human Rights. Put another way, the UK ‘lost’ only one in 50 cases brought against it.

The report further analyses these statistics for the effect of repetitive cases – where the violation has the same root cause and therefore multiple judgments are counted as a single judgment, arguably producing a more meaningful picture. The adjusted figures show a rate of defeat between 1999 and 2010 of 1 in 70. Although annual figures are no more than a snapshot, it is striking that the ratio of applications to adverse judgments in 2011 equates to a rate of defeat of just one in 200.

What of criticisms that the Court is meddling in minutiae, involving itself in matters which are best left to domestic decision-makers? Overall our research undermines  this proposition. Judgments against the UK, while few in number, have frequently been serious and substantive in nature. Almost one in 12 of all judgments relating to the UK have concerned the most fundamental of human rights: the right to life and to freedom from torture and inhuman or degrading treatment. UK cases have also gone to the heart of individual liberties: around one-third involved the right to a fair trial.

Our report also examines the relationship between the UK courts and Strasbourg, in the context of the intense debate about the precise meaning of section 2 of the Human Rights Act. We present a typology of cases in which, variously:

  • Strasbourg has deferred to national authorities
  • Strasbourg has adopted the reasoning and analysis of the UK courts
  • Strasbourg and the UK courts have disagreed, or
  • the UK courts have consciously leapt ahead of Strasbourg.

Since the Human Rights Act came into force in 2000, the European Court has been particularly respectful of UK court decisions. Jurists in both the UK and Strasbourg told us that this is because of the high quality of domestic judgments, which greatly assists the Strasbourg judges in their adjudications. On the rare occasions that the UK courts have disagreed with Strasbourg case law (and to repeat, they are not bound by it) the European Court has shown itself willing to engage in dialogue with UK courts – as happened recently in the case of Al-Khawaja, concerning the use of hearsay evidence in criminal proceedings. This two-way relationship belies depictions of the Strasbourg Court as a body which habitually imposes its will unilaterally on domestic courts.

Another critique of the European Court is that it has been overly-expansive – inventing rights by applying the Convention in ways that would not have been foreseen by its drafters. The Court does indeed take a dynamic approach to the Convention – and this approach has permitted the development in recent years  of positive Convention obligations, the effect of which has been to provide increased human rights protection for vulnerable groups, such as the victims of rape, domestic violence and human trafficking. The Strasbourg Court is of course not alone in adopting a dynamic approach to interpretation: the common law has also done so. We document, for example, the way in which domestic courts evolved the concept of rape within marriage, where previously husbands had enjoyed immunity from such a charge.

The report considers, too, the impact of Strasbourg judgments on the UK through changes to the law or the way that law is applied (see also Guardian readers’ interesting contributions on this issue). Where deaths occur at the hands of the state, the resulting investigatory obligations have been substantially shaped by European Court judgments. Strasbourg rulings have protected people from unwarranted intrusion into their privacy through surveillance and from the indiscriminate retention of their DNA profile. It is due to a Strasbourg judgment that police can no longer stop and search people without needing any grounds for suspicion and that the UK now has a law outlawing forced labour and servitude. Judgments have also been significant milestones towards equal rights for lesbian, gay, bisexual or transgender people.

Strasbourg rulings have had such impact on the lives of people in the UK precisely because the UK has a generally excellent record in implementing judgments against it. The Council of Europe describes the UK as leading by example when it comes to remedying violations of Convention rights. For example, Russian prosecutors investigating grave human rights violations in Chechnya visited Northern Ireland to  learn from the Historical Enquiries Team about investigative techniques and how best to engage with bereaved families (see paras. 22 and 23 here).

It is therefore paradoxical that the national discourse about the Court has become dominated by an example of the non-execution of a judgment – the failure by successive governments since 2005 to resolve the question of prisoner voting rights

(see previous posts here and here). We should recall that it was the indiscriminate  nature of the ban on prisoners’ voting that Strasbourg found problematic, not the ban as such – a fact ignored by some commentators. As with all Strasbourg judgments, the government has considerable discretion about how to remedy the violation.

We detected palpable concern at the Council of Europe that the UK’s stance on prisoner voting, and the accompanying hostile rhetoric about the Court, could impact upon the capacity of the Committee of Ministers to influence governments, and thus weaken the notion that states should act collectively in order to uphold human rights standards. As Nicolas Bratza put it:

One worries about contagion. There is a risk of this attitude in the UK to judgments of the Court negatively impacting on other states … This could  result in a wider refusal to implement European Court judgments across the Council of Europe.

There is much to celebrate in the relationship between the UK and Strasbourg, from the pivotal role played by British jurists in the creation of the Convention (documented compellingly by Dr Ed Bates) to the UK’s largely exemplary record of encouraging compliance by its most egregious violators. This record risks being obscured by an increasingly parochial national debate about the Strasbourg Court. The Wilton Park conference which launched the UK’s chairmanship of the Council of Europe urged politicians and other public figures to ‘tread with conscience’ when discussing human rights protection in Europe – and this exhortation will remain relevant long after delegates have vacated the rain-swept Brighton seafront.

Alice Donald is a Senior Research Fellow at the Human Rights and Social Justice Research Institute, London Metropolitan University

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9 thoughts on “UK vs. Strasbourg: don’t believe the hype – Alice Donald

  1. Very interesting research, both in its lancing of many of the myths and Nicholas Bratza’s comment at the end.

    I have one concern though. How is it that the success rate for these UK cases is so low? At that kind of level I have quite significant misgivings about the client’s interests (if they are paying) and the taxpayer’s interest (sorry to come over Daily Mail) if it is legal aid (or charities or other funders) . Are the lawyers saying to the clients, your chances of winning are extremely small? Do the clients understand how small? Are they saying this to the Legal Services Commission (or other funders)? That’s not to say there are cases that should never be run on small propsects of success, and maybe all these cases fall into that category; but I am a little disquieted.

  2. Good point Richard, it’s something I’ve wondered over the last few days when the discussion of reducing the number of submissions to the court is forefront. However could the success rate not equally be attributed to the disconnect between what a lawyer may be able to see as a fair chance of success within the wording of the ECHR, but that the court already using it’s care over subsidiarity and margin of appreciation throws in a level of uncertainty that their client simply can’t reliably be informed about before it happens?

    It’d be interesting to hear more about what advice individuals are receiving before deciding how much further to take their case.

  3. Interesting research and thanks for bringing it to our attention. I particularly like the decision to count ‘repeat cases’ in the way done here; it reflects the fact that the core problem with domestic law is the same one in all of them (e.g. removal from public housing cases) and the cause of the repeat-defeats is actually failure to respond appropriately to existing decisions rather than anything else.

    In relation to Richard’s comment…I am not sure there’s much need for too much disquiet here. For sure people tell their clients how small the prospect of success is. In addition, much ECHR litigation is very much strategic…it is about getting things on an agenda (often a domestic political agenda) or trying to clarify Convention boundaries as much as it is about individual cases (I am thinking, for example, about A, B & C v Ireland here which was very much strategic in these kinds of ways) and those tend I think to be supported largely by NGOs or philanthropy. In addition, a huge number of cases that are deemed inadmissible are applications done without legal advice where very basic admissibility requirements are not complied with and in relation to which any lawyer would say ‘this will not be deemed admissible’. The Court is (consciously) very accessible at the application stage, so the success rate is in some ways artificial because an enormous number of applications are essentially ‘never going to succeed’ cases. It would be basically impossible to sift through these to come up with a figure that actually showed success rate of viable cases, if I can put it that way, but that figure would be substantially higher I think.

    • Thanks Fiona. Important points. Actually, I’d wager the LSC has some data on success rates (but only for legal aid cases). The twittersphere tells me quite a few of these cases may be litigants in person, which would dampend down success rates quite a bit too.

  4. What a relief to have some clear thinking and careful analysis to counter the increasingly bizarre prejudices about the Court that are dominating the public debate – if only the headline conclusions of this report would be honestly reported in the Daily Mail, the Daily Express and the Sun, we might start to have the glimmerings of a reasoned public debate. Hopefully the coverage of Brighton – and the fall-out from the dispute over the Qatada deadline (rather cleverly being described on Twitter as “Clockup”) – will help to bust a few more of the myths…

  5. Thanks for your comment, Richard. In the report, we compare the stats for the UK with those for Croatia, France, Italy, Sweden, Turkey and Ukraine – an illustrative rather than scientific comparison, of course. The percentage of applications declared admissible varies quite considerably. While for the UK, the rate is around three per cent, for Italy it is almost 13 per cent and for Turkey almost nine per cent. France has a slightly higher rate of applications declared admissible than the UK, while Ukraine and Croatia are roughly the same. Sweden has the lowest rate of applications declared admissible – just over one per cent.

    It is hard to know how to interpret these figures: for example, they may reflect high numbers of repetitive applications in the case of Italy and Turkey and of course there are important differences between these countries (which we discuss). But as a snapshot it indicates that the UK is not wildly out of line with other countries in the high proportion of applications that fail to make it over the admissibility threshold..

    These figures need to be distinguished from the success rate for cases which, having been declared admissible, result in a judgment. In the UK, of all applications declared admissible, around two-thirds result in a judgment finding at least one violation. The proportion of adverse judgments is higher if expressed as a percentage ONLY of judgments which wither found a violation or found no violation, i.e. excluding friendly settlements or other types of judgment. Expressed in this way, the percentage of adverse judgments rises to around 75 per cent. This is the figure which the Mail and Telegraph scurrilously headlined in January (UK ‘loses three out of four cases’ etc).

  6. the fact there are so few success for UK people is not due to any failing of the ECHR or HRA but rather due to the fact that the cases should have been sorted out around a table much earlier in the process.

    What would be interesting is a breakdown of cases which have introduced new definitoions or clarifications of HRA which could and should have been sorted out at county court level.

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