Reforming or redefining the European Court of Human Rights? – Noreen O’Meara

8 March 2012 by

This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical.  Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights. 

It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.

The UK’s chairmanship of the Council of Europe will be defined by the reform measures to be agreed at April’s Brighton Conference.  Most of the current proposals should come as no surprise.  Some clearly stem from previous agreements at Interlaken (2010) and Izmir (2011) and have long been discussed within Council of Europe circles.  Heavy hints had been dropped by Attorney General, Dominic Grieve and interim advice (with accompanying letter) was provided to the government by the Commission on a Bill of Rights, influencing the blueprint.  Days before the it was made public, the ECtHR adopted its own Preliminary Opinion confirming that the Court supports the reform process subject to two conditions: first, that the right of individual petition is preserved, and second, that effective mechanisms (national or international) are put in place to accommodate well-founded cases the Court cannot deal with (para 25).

The proposals, as currently drafted, do not meet these conditions in a way which successfully preserves the essential role and function of the Court.  They may also represent a missed opportunity for the Council of Europe to really grapple with the tricky issues of remedies and resources, which should be comprehensively reviewed if the Court’s caseload is to be made manageable.  Granted, problematic suggestions raised in recent months have not made the draft (mooted “democratic override” ideas have wisely been rejected, with more promising ideas to reconsider remedies at the ECtHR level shelved (para 42(e)(iii)).  The Draft is a melting pot of proposals which—one should hope—will be significantly refined during the coming weeks.


“Subsidiarity” is the theme which underscores the proposals and the UK-led debate surrounding them.  While the importance of the concept of subsidiarity in the ECHR context is commonly recognised, it is not always clear whether the drafters and the Court are on the same page (on the UK government’s apparent take on subsidiarity, see Ed Bates’ discussion).

The UK’s approach to subsidiarity in the Draft has led to a mix of proposals.  Some are clearly pragmatic measures (envisaged at both national and ECtHR levels) to help the Court function more effectively (much needed reforms to the judicial appointments process and measures aiding implementation of the Convention at national level arguably fall into this category).  Other proposed measures in areas of priority for the Court have the potential to go further than this—not only streamlining the Court’s procedures, but potentially impacting on its essential nature (certain proposals relating to admissibility—the Court’s most urgent problem).

Two examples of reforms in this latter category relate to measures which would help the Strasbourg court control its docket.  First, para 23c of the Draft would enable the Court to find applications inadmissible unless (i) the national court “erred” when interpreting Convention rights; or (ii) “a serious question” is raised relating to the interpretation or application of the Convention.

In a rare interview given before the proposals became public, Sir Nicholas Bratza (President of the European Court of Human Rights) was careful to emphasize the Court’s role in interpreting and applying fresh admissibility criteria.  Reacting to an earlier version of the proposal, Judge Bratza observed

We would have to decide whether there was a manifest error on the part of the state authorities concerned, and in particular of the national courts concerned … Ultimately, in those cases we would be the ones who would be interpreting the provision and applying it.

There seems to be a tension, with a drastic admissibility criterion aiming to cull the Court’s docket on one hand, and a Court naturally keen to assert its control over the docket on the other.  This approach risks orienting the Court towards what Bates describes as “irrationality review” (a risk reinforced by the (deliberate?) choice of words in paras 16 and 17 of the Draft discussing the respective roles of the Strasbourg court and national courts – see Bates’ detailed commentary here).  The suggested approach also has considerable potential to damage judicial comity—undermining the “strong and open dialogue” which the Draft seeks to promote (para 19c).

Advisory opinions

A second reform which strays into the territory of affecting the role and function of the Court involves a new mechanism entirely.  The proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of cases.  Once the national judge does so, this would (in all but exceptional circumstances) prevent a further application to the Strasbourg court.

Too much is left to chance.  This human rights version of the ‘preliminary reference’ model in EU law is couched in language which could harm comity and access to justice.  Its current loose drafting should itself be a warning bell to the negotiators.  Every proposed element of the procedure is optional (the mechanism is opt-in, highest national courts would have discretion on whether to use it, advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  The extent to which this initiative would impact the Strasbourg court’s docket would depend on its approach to delivering advisory opinions—the ECtHR may have considerable latitude here.

While this proposed mechanism may achieve aims of developing a more co-operative dialogue between national judges and the Strasbourg court, its strict approach against applications to Strasbourg where the mechanism is used seems to be a further attempt to relegating the EctHR’s function as the ultimate arbiter in human rights disputes concerning the Convention.  Nevertheless, it’s possible that this measure may have more continental appeal and that a more robustly drafted version may prove workable.  The ECtHR plans to issue a ‘reflection paper’ on this proposal in the near future.

Lacking rigour

Reform proposals must be considered in context.   Impacts on the Strasbourg court, on its relationship with the Court of Justice of the European Union (in light of imminent EU accession to the Convention), and on adjudication in national systems should be considered (for a UK perspective, see Mark Elliott’s excellent analysis).  Given the enthusiasm for reform, it is a shame that many of the key proposals either lack rigour or appear misplaced.  Logical recommendations are made on the appointment of judges and implementation of the Convention, but the overriding needs to tackle the docket and admissibility are not yet successfully addressed.

If the Court itself openly called on states to help “identify solutions” to its problems, a mature debate on the Court’s future must be long-overdue.  Negotiators should take steps to eliminate the Draft’s riskier elements, reforming without redefining the Court’s essential character and role.  The resulting Brighton Declaration must genuinely rise above the often fractious political and media backdrop to present coherent plans to maximize access to and the delivery of justice by a Court which is better equipped to do so.  It isn’t in the interests of the UK—or any other states involved—to fail.

Noreen O’Meara  is a Lecturer in Law at the University of Surrey and a Doctoral researcher at Queen Mary, University of London. This is an edited version of a post which first appeared on the UK Constitutional Group Blog

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: