Wednesday, 25 January 2012

Cameron on the European Court of Human Rights

David Cameron has delivered a well publicised speech on the European Court of Human Rights (ECtHR) in Strasbourg.

The ECtHR is the guardian of the European Convention on Human Rights (ECHR), a European human rights treaty that was drawn up in 1950, at a time when fascism, communism and the Second World War were still recent memories or present realities.  In 1998, the ECHR was incorporated into UK domestic law through the Human Rights Act (HRA), but the UK remains bound in international law to comply with the rulings of the Strasbourg court.  It should be noted that the ECtHR has nothing to do with the European Union, except insofar as the EU is a signatory to the ECHR.  Instead, the ECtHR is part of the 47-nation Council of Europe, an organisation famous mainly for doing nothing other than running the Court.

It looks like the PM is concerned that the Court's cases are too numerous and trivial: he wants the caseload to be lighter, and focused on the more important complaints.  He also wants the Court to show more respect for the discretion of national governments (a doctrine known in Strasbourg as the "margin of appreciation" or "subsidiarity"), in the face of "credible democratic anxiety" about the Court's activities.  He suggested that
the very concept of rights is in danger of slipping from something noble to something discredited - and that should be of deep concern to us all.
And at the heart of this concern is not antipathy to human rights; it is anxiety that the concept of human rights is being distorted.
The ECtHR has certainly received sharp criticism, which I have blogged about elsewhere.  Such criticism is associated with the political right, but it has been backed by Lord Hoffmann, a senior retired judge of impeccably liberal credentials.  Criticism of the ECHR and the HRA is also commonplace in certain sections of the press, either because Euro-bashing sells papers or because the ECHR contains privacy protections that newspaper proprietors dislike.  The most recent controversy over the Court arose last week, when it upheld a challenge by the radical Islamist activist Abu Qatada to an attempt by the UK Government to deport him to Jordan.

The Society of Conservative Lawyers has addressed the shortcomings of the ECHR/HRA system at some length, and their critique deserves to be quoted in extenso:
....A convention which was intended to protect “human rights and fundamental freedoms” has become associated instead in the public mind, not without some justification, with dubious compensation claims, complaints about the trivial, the protection of lawbreakers rather than the law abiding majority, a transfer of decision making on economic and social policy to judges and the enrichment of lawyers. “Human rights” claims feature significantly in compensation claims brought by prisoners, often for minor grievances....

The source of the current dissatisfaction with the HRA, lies, as we see it, in the way in which courts – particularly the European Court of Human Rights – have applied the statements of principle in the text of the Convention to areas far beyond those which the framers of the Convention, living in a continent emerging from the terror of totalitarian regimes, can have had in mind. We do not believe that “fundamental” human rights and freedoms should extend to the following:

(1) The creation of new torts. The Strasbourg court’s decisions have led to the fashioning of a number of new types of claim previously unknown to the common law. These typically involve claims for compensation against the State not for its own wrongdoing, but for failings on the part of its employees to act with sufficient skill and care to prevent or protect from the wrongdoing of others. Thus new causes of action have been created against the police for failing to prevent crime (Osman v United Kingdom; Rantsev v Cyprus) and against social services for failing to remove children from their parents (Z v United Kingdom [2001] 2 FLR 612).... [W]e consider that the fact that the HRA can be used as a “tort statute” has played a significant part in the creation of the Act’s poor image. For example a rash of compensation claims and awards for prisoners who did not receive heroin substitutes timeously has not improved the public perception of human rights....

(2) The creation of socio-economic rights. Elected representatives, assisted by their professional advisers, not judges, are best placed to make decisions on social welfare and the like....

(3) Exempting individuals or sections of society from compliance with national laws. National laws in themselves invariably represent a balancing of competing public and private interests by the legislature.... [T]his year the Supreme Court, following Strasbourg jurisprudence, has held that even where domestic law entitles a local authority landlord to a possession order against a tenant who is in breach of his tenancy, a possession order cannot be made if this would be “disproportionate” to the tenant’s right to respect for his family and private life under article 8 of the Convention. Law abiding citizens are mystified by such glosses and additions to unambiguous domestic legislation....

(4) Micro-managing or second guessing the acts of public authorities and officials. The legislation ought to make clear that the courts must respect the judgments of public officials or ministers in areas where decision making has been entrusted to them by Parliament. The Court’s role ought to be one of genuine review, rather than substitution of its own decision....

(5) Closely connected to (3) and (4) above, restrictions on the use of the concept of “proportionality”. We consider that many of the difficulties which have arisen with the HRA can be traced to this concept. For instance, as article 8 is applied it is not enough for a public authority to establish that an interference in a person’s family life was in accordance with a law democratically enacted, but a judge must additionally be satisfied that the interference was “proportionate”. This vague requirement, dependent upon what particular judges in a particular case consider to be appropriate, undermines legal certainty.... It is the principle of “proportionality” which has led to court decisions allowing foreigners convicted of criminal offences and illegal immigrants to be granted permission to stay in the UK, despite a detailed, democratically mandated, legal code governing this area....
Criticism of the Court, however, has not gone unchallenged.  The Council of Europe itself is undertaking a reform project, known as the Interlaken Process, and in 2010 a new protocol reduced the number of judges needed to hear the most straightforward cases.  Some have argued that criticisms of the Court are overblown.  The president of the ECtHR, the British judge Sir Nicholas Bratza, has written, in reference to British cases before the Court:
[F]ew people today would dispute Strasbourg's 1978 ruling that the birching of a Manx schoolboy as a criminal sanction was unacceptable. Few would contest that the rules on contempt of court in operation at the time of the Thalidomide case were unsatisfactory, or deny that a journalist's right to protect his sources is a cornerstone of a free press.
Nor does it seems strange in 2011 to suggest that child perpetrators, even of the most heinous offences, like the Jamie Bulger killers, should not be tried in an adult court. Rulings on the legal recognition of transsexuals and the lifting of the ban on homosexuals in the armed forces, meanwhile, are surely examples of where domestic UK law was lagging behind societal changes and was brought up to date as a direct consequence of the court's judgments. More recently, the finding that the indefinite retention of DNA samples of persons never convicted of an offence violated the right to private life, was widely applauded in British political and legal circles....
The criticism relating to interference is simply not borne out by the facts. The Strasbourg court has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases.
Nevertheless, there are genuine reasons for concern.  The court's backlog has grown from 18,000 cases in 2001 to 86,000 cases in 2006 and over 150,000 cases in 2011.  This backlog is concentrated on a particular group of member states with poor human rights records.  It is also said that inadmissible applications comprise more than 90% of the Court’s caseload.

Before the last election, the Tories and the Lib Dems took directly opposing views on the HRA: the Tories wanted to replace it with a British bill of rights while the Lib Dems wanted to keep it.  The result of the formation of the current coalition was that the issue was kicked off to a specialist committee, the Commission on a Bill of Rights (CBR).

The CBR has accepted in its interim advice to the Government that overuse of the ECtHR is a real problem:
The Court should be a court of last resort, and not a first port of call for all human rights issues. It should be adjudicating hundreds of cases a year, not thousands, and certainly not tens of thousands, and ensuring that the principle of subsidiarity is observed by national institutions with the primary responsibility for the protection of human rights and the provision of effective remedies for violations of the Convention rights.
The chairman of the CBR has suggested that there might be considered
some form of ‘democratic override’ or dialogue, in order to recognise the legitimate role of Parliaments and the democratic process in all of the Member States.... This could allow the effect of a Court decision to be overridden if such was the will of the Parliamentary Assembly or Committee of Ministers [of the Council of Europe], or perhaps of both acting collectively. A variant of this approach might be a power in the Committee of Ministers to determine that a Court judgment should not be enforced if it considered that that course of action was desirable and justifiable in the light of a clear expression of opinion by the relevant Member State’s most senior democratic institution. Another variant could be a requirement in respect of proposed ground-breaking findings of violations for the Court first to consult the other Council of Europe institutions and for the Court to take a collective expression of opinion into account.
It is still very unclear both how the Council of Europe will end up reforming the Court and how the debate in the UK regarding the HRA and a possible future British bill of rights will be resolved.  What seems clear, however, is that the status quo cannot persist indefinitely.  David Cameron is not a man who throws his weight behind lost causes.

Additional note - 31 March 2012

It may also be worth quoting some words from Lord Sumption, now a judge of the Supreme Court, from his F A Mann Lecture last year:

"The real problem about the Human Rights Convention is not the general principles stated in it, which would be accepted by almost everyone. The problem is that the case-law of the Strasbourg Court has derived from them by a process of implication and extension a very large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail. Many of these sub-principles and rules go well beyond what is required to vindicate the rights expressly conferred by the Convention. In addition, the Strasbourg court has taken it upon itself to decide not only whether contracting states had proper institutional safeguards for the protection of human rights, but whether it agreed with the outcome."