Updated | The Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. It has also published a letter to ministers on reform of the Court.
It is already clear that the Commission has its work cut out because of the strong opposing views of its membership. After the publication of its initial consultation document, one of the Commission’s members, Michael Pinto-Duschinsky instantly said “I strongly regret the terms in which it has been presented.” Now the Commission’s chairman has had to publish a letter alongside its advice so that the views of one member (is it Pinto-Duschinsky again?), that there should be some form of “democratic override” of the court’s decisions, could be incorporated despite them not being agreed to by the other members.
The side-letter also, oddly, provides some further ideas which do not carry the endorsement of the Commission, but that have been suggested by either individual members or the public, and it is “highly likely to return to… at a later stage in our work programme”. On the basis of the Commission’s current terms of reference, it is not clear that it needs or has been asked to consider the operation of the European Court save for in this interim advice, but perhaps this will fit into examination of the “operation and implementation of [European Convention on Human Rights] obligations“.
The Government had asked the Commission to provide interim advice in the lead up to the UK’s 6-month chairmanship of the Council of Europe, which monitors compliance with the court’s judgments, beginning in November. The Interim Advice asks “two basic questions”:
(i) what is the central purpose of the European Court of Human Rights for the 800 million citizens of the 47 Member States; and
(ii) how is that purpose most likely to be achieved?
But the side-letter also adds a third question, albeit not one agreed to by the rest of the Commission:
(iii) how can the democratic legitimacy of the Court be assured while at the same time assuring its independence and authority?
In its Advice, the Commission repeat an oft-made criticism of the court, “that the current structure and functioning of the Court, as it struggles with a voluminous and ever-growing case-load, places it in an impossible situation“. The current reform programme is not “sufficient to tackle the serious problems facing the Court“. It offers three solutions:
first, the need to reduce very significantly the number of cases that reach the Court, by introducing new screening mechanisms;
second, the need to reconsider the relief that the Court is able to offer by way of just satisfaction; and
third, the need to enhance procedures for the selection of well-qualified judges of the Court.
The proposals are set out in more detail in the Advice, and we will try to deal with them properly in the coming days. It should be noted that although the UK is assuming a 6-month chairmanship of the Council of Europe, this does not mean it will be able to power through any particular agenda; the Council of Europe is still a democratic body and the approval of other states will still be needed.
In the meantime, hopefully the Commission will be able to find some common ground before it has to make its proper recommendations at the end of next year.
Update, 11 September 2011 – Nick Barber on the excellent UK Constitutional Law Group blog examines the proposals, and makes another sensible one. He argues, following on from Rosalind English’s post of last week, that there is a risk that there are too many competing methods by which a citizen can apply for their rights to be enforced:
The point of the discussion was to show how convoluted rights protection risks becoming in the United Kingdom… There is a strong argument to be made for simplicity in constitutional arrangements: the basic structures of legislation and rights protection should be easy to understand and clear.
It could be that, despite its limited terms of reference, the Commission should think more broadly about the role that international courts should play in our constitution, and the number of different bills of rights we need. To steal a quip from another context, whilst one bill of rights shows caution, three suggests panic.
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