Wednesday, 29 February 2012

UK seeks to minimise the influence of Strasbourg

Post updated 1st March

A leaked document has revealed the hand which the UK government is playing in the run up to the High Level Conference on the Future of the European Court of Human Rights due to be held in Brighton in April 2012.

The document may be read at The Guardian - Draft Brighton declaration on the future of the European Court of Human Rights

Since taking on the Chairmanship of the Council of Europe's Committee of Ministers, the UK has made it plain that reform of the European Court of Human Rights is on the agenda.  The Attorney-General spoke on the subject at Lincoln's Inn in October 2011.    In January 2012, the Prime Minister addressed the Parliamentary Assembly of the Council of Europe and Cameron's speech prompted an article in EuropeanVoice by Nicolas Beger of Amnesty International - "A proposal to restrict human rights" - 23rd February 2012.

The package of proposals now put forward by the UK are extremely far-reaching.  They seek to include in the European Convention itself two principles: the margin of appreciation and subsidiarity.  The formal incorporation of these ideas into the convention has the potential to severely restrict the role played by the European Court.  Further proposals relate to
admissibility of cases at Strasbourg.  The time limit to make an application would be reduced - perhaps to as low as 2 months.  Another proposal seeks to ensure that a case is inadmissible if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the convention, unless the court considers that (i) the national court clearly erred in its interpretation or application of the convention rights, or (ii) the application raises a serious question affecting the interpretation or application of the convention.   This proposal, if implemented, could well have massive impact on the number of cases held to be admissible at Strasbourg.

There are proposals relating to enforcement of the court's judgments and these include inviting the Council of Ministers to consider whether further measures or sanctions should be introduced to exert pressure on States that fail to implement judgments in a timely manner.  Whilst the UK generally has a good implementation record, there are some examples where implementation has been deferred.  This is most noticeably the situation with prisoner voting where the Hirst No.2 decision of October 2005 still remains unimplemented.

Other proposals include introducing Advisory Opinions which Strasbourg would deliver at the request of "highest national courts" but this procedure would only apply to States which "opt in."  It is not made clear whether the UK would opt in.

The UK sees these proposals as addressing the "immediate issues."  For the longer term, a Commission to examine the future of the convention and the court is proposed.  It is argued that it will be necessary to consider the fundamental role of nature of the court so that it becomes more focused and targeted.  The focus would be on serious or widespread violations of rights; systemic and structural problems (neither of which are explained) and important questions of interpretation and application of the convention.

The proposals come on top of the Legal Aid, Sentencing and Punishment of Offenders Bill which will remove  legal aid from numerous important areas of law and also the recent Justice and Security proposals for closed material procedures in civil cases and inquests.  The UK government is also known to be incandescent about certain decisions from Strasbourg such as the recent Abu Qatada case.

Whilst the draft paper will require further analysis and will doubtless be the subject of much comment, we are seeing a serious attack on the role of the court and the ability of the individual to access that court.

As Joshua Rozenberg concluded : - "However much the government insists that it is trying to make the court operate more efficiently, it is hard to escape the conclusion that its main objective is avoiding any more rulings such as the decision that the UK's blanket ban on prisoners voting was a breach of their human rights, and the recent decision that Abu Qatada cannot be tried in Jordan on evidence tainted by torture."

Addendum 1st March 2012:  Tinkering with the powers of the human rights court could be dangerous - Philip Leach in The Guardian.

Head of Legal Blog - Carl Gardner - "Draft Brighton declaration on reforming the ECtHR"  Another post on Head of Legal blog is "Strasbourg emphasises subsidiarity in freedom of expression rulings" - these are the cases of Von Hannover and Axel Springer. 

In Von Hannover, the court referred to its "supervisory function" and "not taking the place of the national court."  However, interestingly, the ECtHR does not use the word "subsidiarity."  The margin of appreciation is a long-standing doctrine in the ECtHR's jurisprudence.


  1. Add in the Justice Department's proposals for the Lord Chancellor to have a greater role in choosing senior members of the judiciary and you have a range of policies intended to to ensure the Government keeps court scrutiny of its policies and behaviour at bay: "Ken Clarke gets his Henry VIII clause into judicial appointments"

  2. Alrich - thanks for the comments and link to your blog. I agree that these proposals give rise for concern - like much the is being done at the moment. The proposals are in a PDF file issued by MoJ. (The consultation period closed mid-February). A response from the Judicial Appointments Commission is available via their website - here. See also University College London and Martin Partington blog.

  3. Binary Law is Nick Holmes's blog on issues of legal information: how it is authored, edited, managed processed and published. who uses it. harassment at work