Monday, 12 September 2011

Commission for a British Bill of Rights: interim recommendations and other ideas

Palais de l'Europe
Update - 20th September: - "Rehashing old ideas?  A response to the Bill of Rights Commission proposals" - Graeme Hall, UK Human Rights blog.

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In March, the government announced the setting up of a Commission on a Bill of Rights.    In advance of the UK assuming the chairmanship of the Council of Europe's Committee of Ministers, the Commission has published interim advice to government on the reform of the European Court of Human Rights (the court).  The Chair of the Commission has also published a letter to Ministers on reform of the court.

The Interim advice recognises that the court is swamped with some 150,000 applications and that a more rigorous process may be required to ensure that the court only deals with serious questions affecting the interpretation or application of the Convention and serious issues of general importance.  The key question is - just what is serious enough to merit the court's attention?  For example, would votes for prisoners be considered to be worthy of the court's attention?  Writing in The Times 12th September, Ken Macdonald QC also argues that a sensible limitation on the court's powers is now urgent.  Litigation at Strasbourg should be as exceptional as it was always intended to be.  "The threshold to bring a case must be very high."

The Commission is also critical of the ability of the court to award "just satisfaction" by way of compensation to individuals affected by breach of convention rights.  Doubt is expressed as to whether this is a proper task for an "international court of last resort."

A further recommendation seeks to establish agreement on "appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level."  Behind this recommendation appears to be a view that some of the judges are not up to the mark.  The court must
be composed of "persons of sufficient standing and authority to command the full respect of national judges."


In a separate Letter to Ministers a number of more tentative ideas are put forward though the Commission has indicated that these may be the subject of further inquiry.

  • Use retired judges to determine admissibility
  • Authorise officials of the Registry to take decisions on admissibility - this harks back, to some extent, to the former European Commission for Human Rights which acted as the filter mechanism
  • Require applications to the Court to be signed by a lawyer or Non Governmental Organisation - so that the legal profession and NGOs share responsibility for reducing the very high number of manifestly inadmissible cases which currently arrive at the Court
  • Enable the Court to deliver advisory opinions - whether on request from a national court or of the European Court's own motion 
  • Enable preliminary references to be made from the highest national courts
  • Introduce a Statute of the Court which would allow the working practices of the Court to be changed by resolution of Ministers
  •  Introduce subsidiarity reviews by analogy to the EU (Lisbon) treaty
Possibly the most superficially attractive but contentious idea is that some form of "democratic override" is introduced.   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, or perhaps of both acting collectively.  Just how such a decision would be reached is unclear.

The idea that this is a democratic override is questionable on a number of levels.  First, the Parliamentary Assembly of the Council of Europe is made up of nominees from national parliaments - see UK representatives.  It is not a directly elected body.   Secondly, the Committee of Ministers is made up of the foreign Ministers of the member states.  In practice, the Ministers meet around once each year and the day-to-day business is conducted by "Permanent Representatives."  The latter are unelected and are, basically, career diplomats.   Thirdly, in the process of trying to persuade the Parliamentary Assembly or Committee of Ministers to exercise the "override" on some issue or other, there is no doubt that political deals would be done.  Should "rights" be dependent on political wheeling and dealing?  Fourthly, the idea of an override is fundamentally inconsistent with the Rule of Law inherent in the Convention system and with the concept of the Convention as a charter of fundamental rights and freedoms.

The Commission has now offered British Ministers a palette of colours for use when the UK assumes the Chairmanship of the Committee of Ministers.  The Chairmanship will be held from 7th November 2011 to 14th May 2012.  What form the ultimate canvass will take is unclear though there is little doubt that British Ministers will be keen to do whatever can be done to rein in the court which they dislike politically on matters such as votes for prisoners.

So much for reform in the Council of Europe.   We await indications from the Commission as to just what form a British Bill of Rights (and perhaps Responsibilities) might take.

Other blogposts:

UK Human Rights Blog - "Bill of Rights Commission publishes advice (and squabbles) ..."
UK Constitutional Law Group - "Nick Barber: the Commission on the Human Rights Act ..."

Addendum 14th September:

"Ken Clarke is right - the European court of human rights needs reform" - Joshua Rozenberg - The Guardian 14th September

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