Be careful what you wish for? UK takes over in Strasbourg

7 November 2011 by

King of the hill... for a bit

After months of wrangling over the influence of Europe on our human rights law, today the United Kingdom begins its 6-month chairmanship of the Council of Europe (CoE)’s Committee of Ministers. Amongst other things, the CoE supervises compliance with judgments of the European Court of Human Rights.

The CoE, not to be confused with the European Council, European Union, European Commission, Court of Justice of the European Union or European Parliament, is an international organisation with 47 member states comprising over 800 million citizens – see its Wikipedia entry for more on its many functions. The UK was one of the CoE’s founding members when it joined on 5 May 1949.

Coincidentally, the court’s new British president, Sir Nicholas Bratza, began his presidency on Friday; only the third British judge to do so (see my post from July). So there is a genuinely British feel to the organisation, at least for the next 6 months.

Two questions arise. First, what does the UK want to do with its presidency, and second, will it be able to achieve those aims?

As to the first question, the UK has set its priorities in its Priorities and Objectives document. It will also push forward an ambitious reform agenda for the European Court of Human Rights, including:

 a set of efficiency measures, which will enable the Court to focus quickly, efficiently and transparently on the most important cases that require its attention;

 strengthening the implementation of the Convention at national level, to ensure that national courts and authorities are able to assume their primary role in protecting human rights;

 measures to strengthen subsidiarity – new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the Convention;

 improving the procedures for nominating suitably qualified judges to the Court, and ensuring that the Court’s case law is clear and consistent.

These aims follow those recommend by the Bill of Rights Commission, but it is important to note that they are not really new. In fact, as Graeme Hall pointed out on this blog, they represent longstanding criticisms of the court and they are also not shared by all of the CoE’s 47 members.

It is also important to note that the CoE is, contrary to reports, a democratic organisation where major changes have to be voted in by its Committee of Ministers and/or Parliamentary Assembly.

So, in answer to the second question, the democratic structure of the CoE and the views of its members mean that the UK will not be able to drive through, by force of will, any particular agenda whilst it is President.

That being said, the reform proposals do to a large extent represent agreements already reached at the recent Interlaken and Izmir conferences on the future of the court, so it is not inconceivable that the UK may be able to speed up the reform process during its short tenure – see the CoE’s webpage on reform of the Court.

A clue to the UK’s expected timing of the reforms is in the title of the conference the UK will be hosting on 17-19 November 2011: “2020 Vision for the European Court of Human Rights“. The high-level conference is invitation only but the programme can be downloaded here.

The European Court of Human Rights has become something of a pariah in the UK’s popular press, which as readers of this blog will know, has led to some silly political statements and reporting. The UK now has a good opportunity to remould the court and perhaps even public opinion, at least a bit. Hopefully, the Government will be able to put this controversy aside and get something useful done whilst it is, temporarily, king of the hill in Strasbourg.

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  1. ObiterJ says:

    I am not quite so sure as James Lawson that the UK’s footprint will be ineffectual. There is a determination to make certain changes and, I suspect, a lot of effort will be put into it – e.g. the conference to be hosted by the UK. There is also a general wish among CoE members to see a number of reforms such as reducing the court’s massive workload.

    The “subsidiarity” argument bothers me greatly.

    ” …measures to strengthen subsidiarity – new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the Convention; ….

    Does the British government mean that each Member State determines whether it is fulfilling its obligations? States, any more than individuals, must not become judges in their own cause. Looking over the years, the UK has been found wanting more times than is comfortable.

    1. It is not that long ago that the Tories did not know what the Interlaken process was, and even now they think they can pick and choose which bits they will get involved in. So far, I have only heard the UK talk about reform of the Court and have remained silent upon the other element of reform needed within Member States. 50% of the Court’s admissible cases are repetitive or clone cases where Member States have failed to comply with the Court’s judgments. It is a disgrace that the UK has been allowed to take up the chairmanship of the Committee of Ministers, responsible for supervising execution of the Court’s judgments, given that 3,500 of the backlog cases are as a result of the UK’s failure to implement my case. There needs to be some serious finger pointing going on. And, invoking sanctions for non-compliance.

      In the same way that Charles Falconer misinterpreted my judgment, Dominic Grieve and Kenneth Clarke have misinterpreted the margin of appreciation and subsidiarity principle.They are looking at them from an English law perspective and need to see them from a European law perspective.

      The Interlaken process requires that Member States employ the subsidiarity principle. I think that this is a good idea. However, the ECtHR interprets the Convention. It is precisely because the UK failed to fulfill its obligations that I was in a position to go to Strasbourg in the first place, and the continuing breach proves that it is still a failing State. This is the problem with the UK being judge in its own cause. It has shown that it cannot be trusted.

      There may well be some backroom deals going on. If this is the case then some of the 800 million Europeans will not be fooled. There is a big question mark over why the Grand Chamber allowed Scoppola to be appealed? Then Thorbjørn Jagland, Secretary General of the Council of Europe, inexplicably referred to “the UK with its long-standing tradition as a human rights defender”, when, as you say, “the UK has been found wanting more times than is comfortable”. In my book, you are either a human rights defender or a human rights abuser. To praise a human rights abuser as a human rights defender is totally against what the Convention stands for. I hope I do not have to wait 6 years for him to apologise for his remark. I know that the Council of Europe did a deal with Russia, which resulted in Russia ratifying Protocol 14. Now, the UK is in check. Will the Council of Europe finish the game or give the UK a chance and/or let the UK upset the chessboard?

  2. James Lawson says:

    A six month tenure rotated between the member states is purely symbolic. It is a political gesture designed to allow the illusion of influence to operate within a time period far too short for one member state to affect (or inflict!) any major structural change (or damage!).

    The United Kingdom’s footprint will be as brief and as ineffectual as those which preceded it.

    1. On the other foot, the Council of Europe’s influence in the UK for major structural change…

  3. I wonder when we will get an answer to this question?

  4. Facts, dear boy, facts.

    Thorbjørn Jagland is the Secretary General of the Council of Europe. There is no Chairman of the Council of Europe. Therefore “today the United Kingdom begins its 6-month chairmanship of the” Committee of Ministers.

    Given the UK’s 6 year delay in fully complying with Hirst v UK (No2) it is nonsense to claim that “it is not inconceivable that the UK may be able to speed up the reform process during its short tenure”.

    The UK fails to appreciate that the Convention, ECtHR decisions, margin of appreciation and subsidiarity principle are not pick ‘n’ mix but must be taken as a whole.

    Indeed, be careful what you wish for. The Scoppola judgment will be handed down during the UK’s tenure. I can’t wait for The Sun, Daily Express and Daily Mail to attack those bloody foreign British in Europe!

    1. Adam Wagner says:

      Fair enough! I have changed the first para

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