Unelected, underqualified and frankly bonkers
9 May 2011
A near-hysterical reaction has greeted some recent European court rulings. If you believed the coverage, you would think that unelected, underqualified and frankly bonkers judges are dictating our laws and making our Prime Minister physically ill.
With this week potentially heralding another hang-the-judges media storm over Max Mosley’s Strasbourg privacy case, it is a relief to read three sensible and balanced pieces on European courts this week, all of which highlights the courts’ shortcomings, but also the risks of a UK withdrawal.
First up is Charlemagne, the European columnist in The Economist, who finds a European court system which is “bewildering” – rightly wondering what the difference is between the European Council and the Council of Europe – and staffed by judges who “annoy most national politicians some of the time and infuriate some most of the time“.
Charlemagne lists the potential options for various levels of European withdrawal, including pulling out of the EU and drawing back to the Council of Europe instead, or doing the opposite by withdrawing from the Council of Europe and the European Court of Human Rights whilst remaining in the EU. The trouble with the latter option is that it raises questions over EU membership, which probably requires compliance with the European Convention on Human Rights.
Despite the downsides, the article concludes that “Judicial nonsense should be restrained wherever possible but may be a price worth paying for the protection of Europe’s prosperity and freedom.”
Next up is Alex Aldridge on Guardian.co.uk who agrees with Charlemagne that scope for manoeuvre is limited, and the pressing for change from within rather than from without may be more beneficial in the end. He concludes, in a similar vein:
co-operation beats the conflict that defined European relations in the centuries that preceded European union. And with the UK due to assume chairmanship of the Council of Europe (of which the ECtHR is a part) later this year, the government’s stated aim of reform from within looks realistic.
Finally, a briefing paper from the Parliamentary Library, The European Court of Human Rights: the election of judges, which examines the quality of European Court judges and the method of their appointment. The paper, which is aimed at informing MPs, does not reach any conclusions but does provide a useful and detailed review of the reality behind the press coverage.
One fascinating point the report unearths is how long the quality of judges issue has been on the UK agenda, and how closely it has been intertwined with unpopular rulings:
Following the “Death on the Rock” [McCann v United Kingdom] judgment in 1996,11 the UK Conservative Government proposed recommendations to improve the quality of European Court judges. Gary Streeter, a Minister in the Lord Chancellor’s Department, said in a parliamentary reply in December 1996 that the UK Government had proposed improving the procedure at the Court “to provide a high standard among judges appointed to the court; and to ensure that proper weight is given to the national character, traditions, religious beliefs and moral values of the countries that are signatories to the convention”.
That 15-year-old quote almost exactly mirrors our current Justice Secretary’s speech at a Council of Europe conference two weeks ago. He said that although the UK had always been a strong supporter of the Strasbourg court, at times it:
has been rather too ready to substitute its own judgment for that of national courts, without giving enough weight to the strength of the domestic legal system, or allowing for genuine differences of national approach.
Clarke also told the conference that states must “send the best possible judges to serve on the Court.” Plus ça change.
According to the briefing paper, the UK’s approach, which also generated a 2005 report by Lord Woolf on improving procedure in the court, has “often been closely linked to high profile, controversial European Court rulings” which has “led to the view that the UK Government only wants reform in the wake of an unpopular Court rulings“. To that end, a May 2011 survey of the legitimacy of the court by academics at University College London found the UK stood out as “the only country where democracy was understood in opposite ways: both enhanced and deprived by the Court“.
The paper also explains the process by which judges are (contrary to popular opinion) elected in the courts.
It is refreshing to read sensible commentary in relation to the flawed but often scapegoated European courts. It is also useful to get some historical context to the UK’s tendency to shoot the messenger, and it seems likely that we will continue to be the courts’ critical friend. Hopefully, if Max Mosley succeeds tomorrow and Strasbourg imposes onerous new notification rules on the press, MPs will take time to at least read their own briefing paper before making any rash decisions.
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