Two easy answers are offered by those who object to a rights based approach to legal decision making – repeal the Human Rights Act and remove the right of individual petition to the European Court of Human Rights. Neither of those things will happen. Therefore much effort is being expended on finding more complicated ways to satisfy their concerns.
Wednesday’s Today programme started with a great debate between Helena Kennedy and Martin Vickers MP. Martin Vickers argued that his constituents had enough difficulty understanding bizarre judgments from British Courts (fair point, there is little attempt in the press to explain judgments). The use of torture evidence in trials was a matter for British courts, not the ‘foreign’ European Court of Human Rights. Baroness Kennedy said that the European Court was not a problem for Britain, having considered only 8 cases about Britain in 2011 (strictly, having found 8 violations). The European Court problem was the inclusion of countries with bad human rights records - the Court could not cope with the workload.
Surely there is something a bit odd about arguing that an international Court should either concentrate on other countries or should not consider other countries at all. We’re all in this together.
The Court problem
Delay in access to legal process can be a breach of article 6. The European Court should worry then about its backlog of over 150,000 cases - 3,100 from before 2005. We can imagine all sorts of admissibility systems to restrain the flood, most obviously:
Requiring that references are made by domestic Courts in member states (as with EU references on a point of law).
Requiring that cases have support from some domestic body – perhaps being made by a member of Parliament. This might filter out the hopeless cases and has been used by some Ombudsman schemes.
Acceding to Russia’s requests for protection – 40,000 cases relate to Russia. It is said that many of the Russian cases are disagreements with particular decisions from people with nowhere else to turn.
The obvious flaw is that all these systems are likely to leave those most in need of protection with least protection and give protection to governments least deserving of it.
The other difficulties are practical – the need for unanimity from 47 governments for any changes and the apparent failure of the procedural reforms introduced in 2010. The admissibility system isn’t going to change. Anyway, it would not help Mr Vickers – all the cases concerning Britain which he objects to would clearly pass any permission type threshold.
In a speech to the London Common Law and Commercial Bar Association on Thursday the Attorney General sketched out an approach based on subsidiarity, specifically:
The European Court should afford a wide margin of appreciation to member states where rights have been implemented in national law and are applied by the Courts.
The domestic Courts should be ready to ‘rebut’ decisions of the European Court, for example if it has failed to understand domestic law.
To adopt the terms of the devolution debate we might call number 1 “margin max”. The requirement for unanimity makes this difficult because some governments would effectively be agreeing that they would be focussed on. It also flies in the face of Russian calls for a different sort of subsidiarity – what has been put as a call for the Court not to see as regressive any legal tradition other than the West European mainstream.
Also, would margin max help Britain if it adopted a new British Bill of Rights? Surely in any case where the Bill of Rights led to a different result from the European Convention, Strasbourg would have to conclude that Britain had not implemented rights fully in its law?
Ignoring the European Court
Dominic Grieve points out that s2 of the Human Rights Act 1998 only requires courts to “take into account” European Court decisions. He was in Parliament and voted against an amendment – which was not passed – requiring British courts to follow Strasbourg decisions.
Since then British courts have generally said that they will usually follow Strasbourg because “That Court is the highest judicial authority on the interpretation of those rights, and the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles it lays down” (Lord Bingham in Kay, 2006). Conversely, if a decision of the Strasbourg court does not “sufficiently appreciate or accommodate particular aspects of our domestic process” the domestic courts can refuse to follow Strasbourg opening up a “valuable dialogue” (Lord Phillips in Horncastle, 2009).
It is less clear how the domestic Courts can sustain a refusal to follow Strasbourg if the European Court maintains its view despite all dialogue.
None of this will give Mr Vickers satisfaction. Trends in legal decision making will flow one way or another, only an amendment to the Human Rights Act to encourage domestic Courts to be less obedient to Strasbourg might secure a long term change in approach. It would be possible to amend s2 HRA, perhaps to include a toughened up Horncastle principle (noted above).
Section 3 HRA could be amended to reduce the role of the Convention as an aid to statutory interpretation – but that is less and less logical the further away we are from 1998 because an ever greater proportion of the statute book will have been drafted in order to be compliant. Both of these ideas sit uneasily with allowing full individual petition to Strasbourg – why try to reduce the effect of Strasbourg decisions if this only encourages more petitions to Strasbourg and greater delay?
What would really throw some red meat to the Strasbourg sceptics is to find a way to undermine article 8 – surely responsible, at least at national level, for 93.5% of the decisions which annoy some of the press.
Dominic Grieve intervened in Scoppola v Italy, another prisoner voting rights case, to argue that a greater margin of appreciation should be shown on this sort of issue. If Strasbourg robustly accepts that submission then it may even be possible that some consensus will be found and the issue will fade away (ok, unlikely). Although it is sometimes portrayed as a plot by lawyers to undermine democracy it is worth noting that at present the lack of consensus about the use of the Convention includes senior members of the judiciary:
National communities are diverse, even within a region such as Europe with a strong common identity... Rights are necessarily claims against the claimant's own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community … but the Strasbourg Court has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other (Lord Sumption’s 2011 FA Mann lecture).
If social support has become a property right, then the judges in Strasbourg have succeeded in making an owner of he who owns nothing. Even Marx was not able to do that (Marc Bossuyt, President of the Constitutional Court of Belgium, in an interview with Gazet van Antwerpen, May 2010 quoted in the Times).