Bill of Rights Commission publishes advice (and squabbles) on European Court of Human Rights reform
9 September 2011
At odds
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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What domestic bill of rights doesn’t have some form of ‘democratic override’ of its Supreme Court’s constitutional ‘interpretation’ (even if it is only the ultimate step of the citizens of the country determining that the terms of their Constitution must be altered).
There are a number of good reasons why such a mechanism is always necessary, not least because no developed democracy has yet subscribed to the notion that ultimate political authority and legitimacy rests in the hands of a small group of unelected, unaccountable (almost invariably upper middle-class, white male) judges.
Does Anthony Lester really think that the UK didn’t subscribe to the rule of law prior to the introduction of the HRA ?
There seem to be some strange notions percolating at the moment.
To advocate for a ‘democratic override’ seems like upside-down logic to me. It would allow majorities to bully minorities.
The Tory government just wants a free reign to attack travellers, disabled people, prisoners, immigrants and other vulnerable groups. They seem to want to replace ‘universal’ with some sort of hierarchy of Human Rights under which only the “deserving” are protected.
The Commission has focussed on the wrong elements in respect of reformation of the European Court of Human Rights. Any lawyer worth his salt will be able to realise that the deficient reasoning in recent judgments is simply far below the standard required of what is supposed to be a bastion of human rights in modern Europe.
Recent judgments revealed that the language barrier between members of the Court mean that the final, published versions are heavily watered down, to the extent that they lose original meaning.
Further the reasoning deployed by the judges (if it was the judges reasoning in the first place) has, as stated, been deficient. The level of intellectual ability is far below that of our own Supreme Court. As such, sprawling, straw clutching reasoning and poor articulation has been a hallmark of the ECHR in recent times. It is unfortunate that the ECHR has been at loggerheads with our own Court. Is it attempting to replace the SC as the highest Court in the land?
Modernisation of the ECHR means:
Transparancy. Let’s have an insight into how the Court really works in practice.
Legitimacy: Let’s ensure that the intellectual ability of judges appointed is at least equal to if not greater than High Court Judges, giving legitimacy to reasoning and judgments.
Deference: When the Supreme Court of the United Kingdom has handed down majority or unanimous judgments, let’s ensure that the ECHR shows some restraint in overturning the highest Court in the land.
Failing to modernise or reform in these areas mean, unfortunately, that the ECHR will lose respect, which in turn will be unfortunate for the quest for universal (but legitimate) protection of human rights and fundamental freedoms.
excellent post, as ever, Adam.
Just a quick comment from me – This post, insofar as it refers to the point about the democratic override, and your earlier one on prisoner voting and the referral of the Scoppola case to the Strasbourg GC are related . Jack Straw complained about the absence of a democratic override in the prisoner voting debate in the House of Commons in February 2011.
To actually require a democratic override within the ECHR system would open up so many issues. So, where is the solid evidence that it is it actually required? There is the prisoner voting issue as one possible example – but it is to be reheard now in Scoppola.
Ed Bates
Any ‘domestic override’ mechanism effectively negates any central rulings issued, and as for a more effective ‘screening mechanism’ being formulated…given that they already issue more ‘automated’ rejection emails than the PHSO and IPCC combined (and that’s LOTS), I fear HRA practice in the UK is ultimately doomed……
RE:- THE CROWN PROCEEDINGS ACT 1947 SECTION 1, 2, 21
RE:- FAMILY LAW ACT 1986 PART 3 DECLARATION OF MARITAL STATUS.
SECTION 58 (1) (2) (3), 59 (1) (2).
RE:- Section 119 of the Courts and Legal Services Act 1990.
______________________________________________________________
I, Ismail Abdulhai Bhamjee of 196 Tiptree Crescent, Ilford, Essex IG5 OST, Tell 020-8252-6462 do say as follows:-
1. The European Commission of Human Rights-
the Retired Judges should not be allowed to make any decision on any application for permission to appeal or to have a case Re-open when judgments orders have been obtained by fraud and non-disclosure of evidence.
2. IT IS OPEN FOR ANY CITIZEN TO BRING A CLAIM AGAINST THE MINISTER OF THE CROWN, FOR MISFEASANCE IN PUBLIC OFFICE AND OFFICIAL MISCONDUCT IN PUBLIC OFFICE.
3. LEGAL FUNDING IS BEING ABOLISHED- THIS SHOULD NOT RESTRICT ANY PERSON WHO CAN’T AFFORD TO PAY THE FEES FOR ANY BARRISTER AS FUNDING SHOULD BE PROVIDED FOR A BARRISTER ALONE BEFORE ANY COURT OR TRIBUNAL.
I HOPE AND TRUST THAT THE MEMBERS OF THE COMMISSION SHOULD NOT TAKE INTO CONSIDERATION OF THEIR OWN PERSONAL INTERESTS BUT SHOULD TAKE INTO CONSIDERATION OF THE PUBLIC INTERESTS.
THE JUDGES IN THE UNITED KINGDOM ARE PRECLUDED FROM MAKING THEIR VIEWS AND OPINION, UNLESS THROUGH THE LORD CHIEF JUSTICE AND THE PRESIDENT OF THE TRIBUNAL.
I THANK YOU IN ADVANCE AND WAIT TO SEE THAT ANY PERSON SHOULD NOT SUFFER INJUSTICE BECAUSE OF SOME JUDGES, BARRISTERS AND SOLICTORS WHO ARE BENEFITING FROM THE PROCEEDS OF UNLAWFUL CONDUCT.
YOURS FAITHFULLY
ISMAIL ABDULHAI BHAMJEE
Clearly the UK cannot plough any agenda through the Council, but they can portray to the UK electorate through this continuing bill of rights fudge the image that they are doing something for all those who agree with their stance on getting rid of the HRA; at the end of the day that is what this Bill of Rights issue comes down to, winning votes and watering down a piece of legislation that is generally inconvenient for a government intent on pushing through draconian, highly deceitful and socially unfair policies and cuts which they were not elected for.
I am however beginning to think given the apparent disarray that this committee seems to be operating from within, that this whole thing will blow over in the end, but will probably continue to rear its ugly head every few months or so when some other insignificant scandal is blown out of all proportion by the tabloids (KFC anyone?) and grabbed upon by vote hungry MP’s. So far I have yet to see anything of value from this commission.