Why no public appointment hearings for UK’s new European Court of Human Rights judge?

23 May 2012 by

Bratza is off

The Guardian reported yesterday that “MPs aiming to claw back powers from Europe have secretly interviewed candidates to become Britain’s next judge at the European court of human rights”. Oliver Heald MP said that a group of MPs from the three main political parties met the 3 candidates, Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The aim is “to improve democratic accountability”.

What would really improve democratic accountability is to hold such meetings in public, and broadcast them online. Currently, the UK public  knows frighteningly little about how the Strasbourg Court works in practice. This is hardly surprising given that it is regularly misrepresented in the popular press, for example the Daily Mail and Telegraph’s recent uncritical coverage of a report which wrongly stated the UK loses 3 out of 4 cases there (the real figure is about 1 in 50).

Contrary The Sun’s claim that they are “unelected dictators”, European Court of Human Rights judges are elected – see my previous post for the details. This is also in stark contrast to our domestic judges, which are usually appointed by committee and are almost impossible to sack.

The current recruitment round is to replace Sir Nicolas Bratza as the UK’s judge at the court. As Joshua Rozenberg has reported, Emmerson is the clear frontrunner, given his stellar reputation as a barrister and judicial experience in the High Court. This seems to be accepted by all commentators. Why not give the public an insight into why?

In the United States, Supreme Court Justices go through a rigorous public confirmation process after they have been nominated by the President. Some, such as one of George W. Bush’s nominations Harriet Miers, don’t survive under the pressure.

It is quite wrong for MPs to complain that the European Court of Human Rights is opaque and distant, whilst at the same time failing to allow the public to scrutinise every stage of the UK’s judicial appointment process. It doesn’t happen very often, and it is not too late to open up the process to the public who are, as we are constantly reminded, the ones who have to live with  rulings from Strasbourg.

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  1. Jeff King says:

    I think confirmation hearings in the US have been on the whole negative for confidence in the justice system. It’s true that some candidates have been prevented from taking their posts – you could add Robert Bork to Harriet Myers in that respect. But it turns the process into theatre, and generates an expectation that the judges have to make statements that will appease and be responsive to the public. In reality they must be responsive to the law, and if pandering becomes part of their song and dance – as it has in the US – then there is the possibility that judges will increasingly feel it both appropriate or even necessary to carry forth those stated views when on the bench rather than give correct legal interpretations. It’s a halfway house to holding judicial elections. You might note that Canada has experimented with a form of this idea of late – holding hearings in front of an ad hoc parliamentary committee. This was done with Justice Marshall Rothstein, and was started by Stephen Harper, the most right wing Prime Minister in a while. If greater accountability is what you want, then perhaps greater involvement of the Judicial Appointments Commission is what is needed? And note that even if we let The Sun itself appoint our ECtHR judges, it would still balk at the way all the others are appointed. So hearings strike me as a high price to pay for little political gain. (We should also be worried about sending a John Bolton-like judge to Strasbourg, one that would disrupt the comity required to make a supra-national institution like that work).

  2. Publicly berate it, but secretly support it. Government policy on Europe, the ECHR and ECtHR. Their whole stance is designed to appeal to mis informed media fed public feeling in order to win votes, as with the prisoner voting issue, PR, spin, PR, spin, PR, spin, but no leadership, that is all they are about, and their ship has long since sailed.

  3. James Lawson says:

    Even if the United Kingdom’s preferred candidate is someone with all the characteristics of Judge Roland Fiesler, he may well appeal to the editors of the Mail and Telegraph but he will still need to pass the selection process under Articles 21 and 22 which mercifully, has nothing whatever to do with the United Kingdom. A call for an open and public selection process in the United Kingdom will meet with the retort that there is no such open and public transparency under the above Articles at European level.

  4. r1xlx says:

    this is a bit more Strasbophobic nonsense and should be consigned ot the rubbish bin immediately.
    The Lord Chief Justice Lord Judge stated juts a few3 week sback that the HRA is UK law and that is the end of the matter.
    As two of the candidate are QCs it is reasonable to expect them to know the basics of HRA and to follow the Lord Chief Justice.
    If on the other hand they think that the HRA isn’t law well perhaps they do need vetting to see what they do believe to be the law.
    David Hercock QC is one QC who thinks White English Transsexuals don’t have any rights.

  5. ObiterJ says:

    “It is quite wrong for MPs to complain that the European Court of Human Rights is opaque and distant, whilst at the same time failing to allow the public to scrutinise every stage of the UK’s judicial appointment process. It doesn’t happen very often, and it is not too late to open up the process to the public ..”

    Absolutely spot on !! Well said.

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