Bratza bites back

25 November 2011 by

I had intended to entitle this post “Bratza goes ballistic” which  would, for reasons I will explain, have been unfair. However, as reported by guardian.co.uk, the new British president of the European Court of Human Rights has pushed back strongly against the “vitriolic and – I am afraid to say, xenophobic – fury” of the reaction to recent rulings by the UK government and press, which he says is “unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years.”

Safe to say, if anyone in the UK Government had been expecting an easy ride from the new, British born, president of the court, they will be disappointed by Bratza’s article in the European Human Rights Law Review. However, reading beyond the incendiary first few paragraphs, Bratza ends in a more conciliatory fashion, accepting many of the criticisms of the court and indeed offering suggestions for change.

I cannot link to the full text of The relationship between the UK courts and Strasbourg as it is only available on Westlaw, but I will quote some of the choice paragraphs.

On those unelected European judges:

Whatever else might be said about these charges, the epithet “unelected” is untrue. We are elected. t is indeed ironic, in view of the repeated use of the term by members of the House of Commons in the recent debate, that it is Governments that put forward lists of candidates to become judges of the Court and that it is politicians in the Parliamentary Assembly who elect us to the Court and who should carry the responsibility, if any, for appointing judges with inadequate experience.

On calls to withdraw from the European Convention on Human Rights:

The Human Rights Act, and the manner of its implementation by judges of the United Kingdom, have set a shining example to other states of how Convention rights can be brought home. The withdrawal of the United Kingdom from the Convention would do untold damage to the system itself. It would also, in my view, do immeasurable harm to the standing of the United Kingdom within the wider community of Europe in which it plays such an important part.

On the often made point that the court should do more to strike out cases and deal with only those which are the most important (see most recently Attorney General Dominic Grieve’s speech):

Taking the United Kingdom as an example, last year (2010) some 1,200 applications were considered by the Strasbourg Court. Of these, some 1,177 were declared inadmissible or struck out; only 23–less than 3 per cent of the total–resulted in a judgment of the Court, several of which ended in findings of no violation.

He has a strong point here: for all the talk about minimising the number of judgments the court makes, it is hard to see how 23 rulings per year could be reduced much further.

On whether the court pays adequate respect to judgments of the UK’s highest courts:

the Strasbourg Court has… been particularly respectful of decisions emanating from courts in the United Kingdom since the coming into effect of the Human Rights Act and this because of the very high quality of the judgments of these courts, which have greatly facilitated our task of adjudication. In many cases, the compelling reasoning and analysis of the relevant case-law by the national courts has formed the basis of the Strasbourg Court’s own judgment.

Moreover:

In the great majority of cases our Court followed the conclusions reached by the appeal courts in the three United Kingdom jurisdictions

And as to the court seeking to interfere with established law and impose uniform standards on member states:

The Court’s judgments are replete with statements that customs, policies and practices vary considerably between Contracting States and that we should not attempt to impose uniformity or detailed and specific requirements on domestic authorities, which are best positioned to reach a decision as to what is required in the particular area.

That said, the court does sometimes make controversial decisions and Bratza does not apologise for this. He gives examples:

the laws criminalising all homosexual acts in Northern Ireland (Dudgeon), the total ban on homosexuals joining the military (Lustig-Prean ); the court-martial system, with its lack of structural independence between the prosecution and the court itself (Findlay) and more recently and much more controversially, the blanket restriction on the voting rights of serving prisoner (Hirst (No.2).

In those cases,

the Court has been careful not only to explain the nature of the incompatibility but, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State.

Some argue that the problem with Hirst No. 2 is that whilst in itself it did not impose “specific requirements” on the state, subsequent decisions such as Frodl have – see my post Prisoner votes and the democratic deficit. So watch that space when the Grand Chamber rules on the most recent prisoner voting case, Scoppola, in which the UK intervened (the Attorney General’s speaking note is here).

As to the nationalistic furore in Scotland prompted by the UK Supreme Court’s “aggressive” interpretation of Strasbourg’s rulings on police interviews (see Rosalind’s latest post on the fallout):

I find it difficult to accept some of the criticisms that have been made. The fact remains that it was a judgment which was a foreseeable development of the Court’s more recent case-law; it was a judgment which was consistent with contemporary standards in the procedural protection of those suspected of a criminal offence; and it was a judgment supported by the practice in a substantial number of Member States, including, as pointed out by the Supreme Court itself, in the jurisdiction of England and Wales

Patching things up

Bratza ends on a more conciliatory note, suggesting some ways in which Strasbourg could ensure a more harmonious relationship with domestic courts.

First, he accepts that the court is “not omniscient” and should “show greater awareness of the consequences of its judgments on domestic law and practices“.

Secondly, he suggests that when deciding the correct balance between competing Convention rights, Strasbourg should be “particularly cautious” about interfering where national courts have already attempted to apply the Convention in a way which is “reasonable and not arbitrary“.

Thirdly, judgments should be expressed with “greater clarity” as they “too frequently seem to have caused exasperation among national judges, confronted with the task of interpreting and applying them

Fourthly, while the court’s case law should evolve to address new situations, the Court “should show respect for precedent and recognise the vital need for consistency” and “legal certainty“. This may be an implicit acceptance of the problems generated by the inconsistent prisoner vote cases – we shall find out when Scoppola is decided.

Finally, there should be “increased dialogue between the judges of the courts, both informally and through their judgments“.

So, Bratza begins his term by biting back against criticisms of Strasbourg in the strongest terms, although he is right to call out some of the criticism as factually wrong and in some cases unpleasantly nationalistic. Thankfully, he also offers some very reasonable ideas for reform, all of which accord with the recently stated views of the UK government. Hopefully, now that the UK is temporarily in charge in Strasbourg, the warring parties can call a ceasefire and get on with the negotiating.

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5 comments


  1. Richard says:

    on behalf of all disabled people in the UK* we are sick and tired of being portrayed to the media by the Condem* coalition. as work shy and scroungers* all we want is to live independently in peace with our disabilities! I say* come on Nick and David! play fair* don’t discriminate! I am watching* so is the EU* your masters!
    Richard*

  2. The Guardian headline is incorrect to describe Sir Nicolas Bratza as a European judge. He’s a British judge who also happens to have been appointed to the ECtHR, and is now the President of the Court.

    It is a pity that the Guardian provided no link to the speech or identified at which conference the speech was given. It would be helpful if the ECtHR published the speeches on its website like the UKSC does.

    I am pleased that Sir Nicolas Bratza has decided to fight back.

    As Martin Kuijer observes in THE ACCESSION OF THE EUROPEAN UNION TO THE ECHR: A GIFT FOR THE ECHR’S 60TH ANNIVERSARY OR AN UNWELCOME INTRUDER AT THE PARTY?: “It is useful to have a critical mirror in which to view one’s own legal order from a greater distance”.

    South Africa “abolished the colonial-inspired system of parliamentary supremacy and established a constitutional democracy with a justiciable bill of rights” http://www.guardian.co.uk/commentisfree/libertycentral/2011/nov/25/constitutional-south-african-law.

    Supremacy of Parliament is alien to European law. The Council of Europe has warned about the rise of nationalism, and the Parliamentary Assembly of the Council Europe (PACE) has criticised the UK for its references to the sovereignty of Parliament http://assembly.coe.int/Main.asp?link=/Documents/Records/2011/E/1101261500E.htm. As each Member State appoints a judge, it is obvious that to the other 46 Member States the judges are foreign. But, it appears to be only in the UK where the issue of foreign judges is a cause for criticism. This is obviously xenophobic. Certain elements of the media stir this up, and it beggars belief that some MPs born here to immigrant parents dare to criticise foreign judges for being foreign!

    European law recognises the sovereignty of the people. Our rights need to be in a written constitution, and the courts given the jurisdiction to strike down offending primary legislation. It would not require much amending of the HRA to obtain the desired result. The ECtHR would remain the highest authority on the issue of human rights. Given that human rights are universal, it is very irresponsible for MPs, Lords and judges to attack this because they wish to uphold an outdated doctrine rather than human rights in the UK.

  3. Jeffrey Dudgeon says:

    “That said, the court does sometimes make controversial decisions and Bratza does not apologise for this. He gives examples: the laws criminalising all homosexual acts in Northern Ireland (Dudgeon)…”

    Odd he omits the fact that he worked for the UK government on this case in its attempt to maintain the criminalisation of homosexuality in Northern Ireland and permit prosecutions being brought forward at the time in Belfast for acts legal in London.

  4. mike farrell says:

    Nice to see a judge fight back against political criticism. Too often ministers attack judges and courts merely because they issue a ruling that is inconvenient to the government of the day, or unpopular with the public stoked by politicians, and two often judges remain tight lipped and seemingly unwilling to defend themselves.
    More often than not judges are criticised as ‘unelected’ ‘undemocratic’ and ‘out of touch’, (I believe Michael Howard often does a good line on such arguments, as does virtually every Home Secretary regularly (excuse me, must go feed my cat!)). Ironically these terms could apply also to a government such as we have that promises one thing before an election, then does something entirely different and unwanted when they win, or a government that leaks lies and false propaganda about Human Rights law into the press which they then use to justify an unwarranted and unnecessary campaign to have the Human Rights Act abolished and replaced when a simple amendment would do to solve the problems they complain about.
    Judges, Strasbourg, the Supreme Court, the Human Rights Act; none are 100% perfect, none of them are beyond criticism, but they should be defended when it is right to do so, as it is now, and there is nothing wrong with them standing up to political posturing.

  5. Rachit Buch says:

    An interesting contribution to the debate (are we playing judicial top trumps – matching our President of the Supreme Court with Judge Bratza?).

    Isn’t the conciliatory note you say Bratza ends on entirely consistent with the substance and tone of Strasbourg judgments? Doesn’t this article show that UK judges’ and people’s ire is misdirected?

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