I am very happy to welcome another guest post of Ed Bates of the University of Southampton. This time it relates to the reform plans for the Court of the current British chairmanship of the Council of Europe: British plans for reform of the European Court of Human Rights
The United Kingdom took over as Chair of the Committee of Ministers on 7 November 2011. It has published its ‘Priorities and Objectives’ and these include details of how the British government proposes to push forward the on-going reform of the European Court, and to strengthen the implementation of the ECHR.
Priorities and ObjectivesThe British government is seeking ‘effective and enduring solutions’ to the work overload crisis facing the Court. The call is for:
‘[1] a set of efficiency measures, which will enable the Court to focus quickly, efficiently and transparently on the most important cases that require its attention;
[2] strengthening the implementation of the Convention at national level, to ensure that national courts and authorities are able to assume their primary role in protecting human rights;
[3] measures to strengthen subsidiarity – new rules or procedures to help ensure that the Court plays a subsidiary role where member states are fulfilling their obligations under the Convention;
[4] improving the procedures for nominating suitably qualified judges to the Court, and ensuring that the Court's case law is clear and consistent’.
It is stated that the UK ‘will aim for a package of measures to be agreed by means of a Declaration at a Ministerial conference in the UK on reform of the Court’. The Declaration ‘will provide the basis of a Decision of the Committee of Ministers to be adopted at its annual meeting on 14 May 2012’.To get the ball rolling, the UK will host a conference (invitation only) at Wilton Park on a ‘2020 Vision for the European Court of Human Rights’ on 17-19 November 2011 (programme).
The UK statement adds that it ‘will aim to provide the Court with political support from the Committee of Ministers for the measures it is already taking to prioritise and better manage its workload, and to provide a wide margin of appreciation to member states’ authorities in its judgments’ (emphasis added).
Advice on reform from the (British) Commission on a Bill of RightsThe Priorities and Objectives may be read against the background of the interim advice offered by the (British) Commission on a Bill of Rights regarding reform of the Court. This body was set up by the British government earlier this year to examine the case for a British Bill of Rights, but its remit included offering advice on reform of the European Court.
As can be seen from the interim advice, the Commission called for a review of the operation of Article 41, ECHR and the Court’s role with respect to it.
It also called for a programme of fundamental reform establishing 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’. This no doubt reflects (at least partly) point 4 from the Priorities and Objectives (and see E8 of the Interlaken Declaration). Here we note that the Council of Europe has recently established an Advisory Panel of Experts to consider judicial nominations from Member States. This initiative was welcomed by the Commission, but there was also some criticism and it was suggested that the new procedure needed to go further. Incidentally, a job advert for the next ‘British’ Judge on the Court, to succeed Judge (now President) Bratza, was published recently.
The main points made by the Commission, however, corresponded to points 1 and 2 from the Priorities and Objectives as set out above. Against the background of the Court’s unmanageable workload emphasis was placed on the need for the effective application of the principle of subsidiarity and effective screening of applications. Here the Commission’s interim recommendation was for ‘an urgent programme of fundamental reform address[ing] the need to give practical effect and meaning to the essential role of the Court, by establishing a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention’ (compare to point 1 above as regards as the ‘most important cases that require [the Court’s] attention’).
Such a proposal endorses the approach originally found in the Evaluation Group’s Report of 2001, but which met with resistance at the time. It will be viewed as controversial by those who insist that the right of individual petition and access to the Court for well-founded human rights violations must never be curtailed in any way (on which, see the Joint Statement issued by NGOs in response to the United Kingdom’s Priorities and Objectives, at p 2).
To be clear, the proposal(s) just described is not set out in the British Priorities document, but it could come under ‘new rules or procedures’ as described in point 3. And, of course, with respect to subsidiarity, this lies at the heart of the Strasbourg jurisprudence whilst the need to strengthen this has been central to the philosophy of the Interlaken (especially ‘PP 6’ and ‘B4’)and Izmir declarations (points 5-7 and ‘B’).
It has been suggested, however, that the emphasis on subsidiarity may have another dimension to it, at least as far as the British government is concerned. And here we may also recall the comment above about British support for the Court when it affords States a ‘wide margin of appreciation’.
Subsidiarity - the (British) Attorney General’s London SpeechSuspicions were raised by a speech delivered in London by the British Attorney General, Dominic Grieve, on 24 October, when he stated that he looked forward to the British Chairmanship of the Committee of Ministers. This London speech was cautiously welcomed by some in the United Kingdom, but others expressed concern that there was something more sinister afoot. In this regard see especially the Joint NGO statement (on p 2 at paras 1-4), stressing that subsidiarity should not be a basis to ‘limit the Court’s substantive jurisdiction’ or significantly reduce its mandate to assess compliance with the ECHR.
The Attorney General’s overall point on subsidiarity was that ‘the Court [should] afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention’.
As to the role of domestic courts, it was argued that ‘the [Strasbourg] Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention’. Of course, a question arises here as to who actually says what ECHR law is in the first place. Other than that I can see no problem with the Attorney General’s approach noting, of course, the proviso ‘not normally’, and, even more importantly, that the national court must have properly applied Convention principles in the first place. The approach taken by the Court in MGN v United Kingdom (2011, see para 150 especially) appears to be in keeping with the Attorney General’s proposal, and paragraph 9(a) of the Interlaken Declaration may be relevant here too.
Regarding the role of national Parliaments, however, it has been suggested that the British government’s agenda is to water down the power of European Judges and preserve greater freedom of action on the part of individual states.
In fact, the Attorney General’s points (as made in his speech) were not made at such a general level. Instead they were specifically linked to the United Kingdom’s intervention in Scoppola v Italy No. 3. That case concerned the controversial matter of whether certain convicted prisoners should be able to vote, and how any regime regulating this might be organised. The United Kingdom retains a blanket ban here, contrary to Hirst v United Kingdom (2005) and subsequent case law. In his London speech Mr Grieve was clear that:
‘… the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation…’.Subsidiarity as argued in Scoppola v Italy No. 3Indeed, when he appeared before the Grand Chamber on 2 November (the United Kingdom acting as a third party intervener in Scoppola v Italy No. 3– Dominic Grieve addressed the Court in person), the Attorney General argued that Hirst should be overturned. He stated that there were:
‘serious and reasonably held views within the UK (and it appears elsewhere within the Council of Europe and the broader community of nations) that individuals who commit criminal offences which are serious enough to warrant a term of imprisonment should not be permitted to participate in the democratic process, by voting, for the duration of their period of detention (or perhaps even thereafter.’Accordingly, the issue of prisoner voting was ‘a political question - by which I mean a question for democratically elected representatives to resolve, against the background of the circumstances and political culture of their own particular state’. It was argued that it was entirely consistent with the Strasbourg jurisprudence that ‘sensitive issues of social policy of this kind should be decided by national Parliaments’. Reference was then made to the margin of appreciation doctrine:
‘The Court has frequently held that in matters of social or economic policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight, and that the Court should intervene only in those rare cases where the decision of the national authorities is "manifestly without reasonable foundation"’.
Subsidiarity and British plans for the CourtLet us put to one side the controversy associated with the fact that the British government is attempting to get Hirst (itself heard by a Chamber and a Grand Chamber) overturned and consider the general arguments put as regards the role of the Court as against national Parliaments. Do the submissions made in Scoppola and the statements made in the London speech offer an insight into some of the ‘new rules’ (point 3 of the Priorities and Objectives) that the British government would like to promote, and, assuming so, what should we make of them?
The real issue is how far the emphasis on the principle of subsidiarity may be pushed. When presented along the lines of the London speech, a key question is what the yardstick would be for assessing whether there exists strong/ reasonable opposing views, and so what areas would benefit from the type of super-irrationality review approach being advocated.
Of course, context will be everything. However, if the yardstick was whether the/ any individual national Parliament strongly opposed a change in relation to the matter in issue we would arrive at a sort of national veto on what the Court could do (at least for these special ‘social policy’ matters, however these are defined).
By contrast, if the yardstick meant that Strasbourg rulings addressing such social policy matters had to accord with a sufficient European consensus, then the implications would be less radical. After all, this was the position (broadly speaking) adopted by the minority back in Hirst, reflecting the Court’s general position. Undoubtedly, however, in a Europe of 47 nations this would reduce the Court’s capacity to signal a gentle lead on certain human rights matters, prisoner voting being a very good example. (On this see, perhaps, the dissenting judgment in S. H. and others v. Austria (3 November 2011)).
Here, of course, the burning question would be: what level of European consensus would be required? Strasbourg jurisprudence to date reveals that this depends on the context. At the very least it seems that the British wish to send a sharp reminder to Strasbourg judges that,when it comes to questions on which there is no clear European consensus,they are part of an international, not domestic constitutional court, implying limitations on their mandate - they should follow not lead.
Domestic politics in the United KingdomThere are plenty of indications that a reduction in the power and influence of Strasbourg Judges would accord with the domestic political mood in the United Kingdom. The Strasbourg Court’s stance on prisoner voting has come in for intense criticism there, and sits alongside a number of other areas of law (notably concerning immigration matters and Articles 3/ 8) that have stirred controversy and given rise to a perception that the Court has become too intrusive and too often sets uniform, European standards.
The Court has been the subject of high profile criticism on the basis that it lacks ‘constitutional legitimacy’, which was a key theme of a debate held in the House of Commons in February 2011 (a debate which was purportedly about prisoner voting, but was dominated by criticism of Strasbourg generally). And in this connection here we may return to the work of the Commission on a Bill of Rights in the UK. We learn from a separate letter published at the time of its interim advice on Court reform that there had been some debate about the Court’s ‘democratic legitimacy’.
The Commission was clearly divided here (see page 5 of the letter). However there was discussion as to whether there was a need for a ‘democratic override’ in relation to Strasbourg judgments, or if not, ‘[t]he jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities’. Other members of the Commission rejected these suggestions, arguing that they were not required.
With the Court’s legitimacy under scrutiny various pieces have been written (in their personal capacity) by individuals very closely connected to it (see, for example, Judge Bratza’s recent article in the latest edition of European Human Rights Law Review, and Deputy Registrar Michael O’Boyle’s piece in the German Law Journal). It is undoubtedly the case, however, that a significant body of opinion in the United Kingdom remains hostile to the Strasbourg Court.
We therefore wait to see if there is indeed a broader agenda behind point 3 of the British government’s proposals as noted above. Are we witnessing the first steps of an attempt to institutionalise a reduction in the Court’s power of review over aspects of domestic law, and related to this, its power to interpret the Convention in ways that may give rise to incompatibilities with domestic law? Of course, whether this would be achievable politically at the European level is a different matter.
Ed Bates, University of Southampton.
(Thank you to Antoine for permitting an unusually long guest blog!).
