On Monday, the UK took over the political leadership of the body that runs the European Court of Human Rights. Last Friday, the UK’s judge in Strasbourg, Sir Nicolas Bratza, became president of the court. Will the Brits make a difference?
They don’t have very much time. Each member state in the Council of Europe - there are currently 47 - has just six months to chair the policy-making committee of ministers. The job comes round according to alphabetical order, with the UK bridging the gap between Ukraine and Albania. Because new members are still joining the Europe-wide body, it may be a quarter of a century before the UK has another chance to shape policy.
Bratza, who has held judicial posts at Strasbourg since 1993, is left with not quite a full year as the court’s senior judge. He must retire at the end of next October after serving the maximum permitted term. While one admires the enthusiasm of the Ministry of Justice in advertising for Bratza’s successor on the day he took office, it was not perhaps the most tactful thing to do. But a seat on the Court of Appeal is his for the asking and he would be a valuable asset to the UK Supreme Court.
Bratza’s French predecessor, Jean-Paul Costa, stayed on until his 70th birthday last Thursday - perhaps so that he could preside over an Italian appeal a day earlier on prisoner voting. Britain had joined forces with the Italian government to challenge earlier rulings by the human rights court that an automatic, indiscriminate ban on voting by prisoners was a breach of their human rights. Despite receiving a courteous farewell in fluent French from the attorney general Dominic Grieve, Costa and his fellow judges are not expected to overturn their earlier rulings.
The UK’s priority for the next six months will be reforming the court over which Bratza now presides. That is not a matter for him, of course, but it must help to have a British judge in place who has less than a year to make his mark. The sensitivity of his position can be seen from his decision to turn down a recent BBC interview request.
What reforms might the UK achieve? Everybody agrees on the need to reduce the court’s backlog of pending cases, which had reached 155,000 by the end of September. That view is shared by the court’s strongest supporters, such as Anthony Lester QC. Lord Lester sits with a number of Conservative QCs and others on the government’s Commission on a Bill of Rights. While the commission was grappling with what, if anything, might replace the Human Rights Act 1998, it found time to recommend that the Strasbourg court should be reformed to ensure that only the most important cases would come before it.
Member states should assume primary responsibility for dealing with violations, the commission advised the British government, and failure to put compliance machinery in place should itself be a breach of the convention. Strasbourg should be a court of last resort rather than a first port of call: it should be deciding hundreds of cases a year rather than tens of thousands.
These recommendations were welcomed in Whitehall - as the commission’s chairman, a former mandarin, knew they would be. They buttress the government’s plans to strengthen what it calls ‘subsidiarity’, which it defines as ‘new rules or procedures to help ensure that the court plays a subsidiary role where member states are fulfilling their obligations under the [human rights] convention’.
Subsidiarity is better known as a principle of EU law - that the EU should legislate only if action by individual states would be insufficient. But in adapting it to the entirely different system of human rights law, the UK seems to be asking the court not even to hear cases that governments believe would be better settled at national level.
This can be seen from Grieve’s submission to the court last week on the issue of votes for prisoners. ‘We submit that this is, and should be, 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,’ Grieve said.
‘The view that sensitive issues of social policy of this kind should be decided by national parliaments is, we say, entirely consistent with the jurisprudence of the court.’ Grieve was even more explicit in a speech he delivered at Lincoln’s Inn last month, promising to tell the court ‘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 judgment as to the appropriate system of disenfranchisement of prisoners is for parliament; and the court should not interfere with that judgment unless it is manifestly without reasonable foundation’.
This is something of a slippery slope, attractive to governments but not much use to those who wish to challenge them. Unless, that is, you take the broader view: that minor claims need to be sacrificed to ensure that the bigger cases are not lost in the system.
There seems every chance that the UK will win political support for reforming the European Court. It may also mean that issues Britain finds tricky - such as votes for prisoners - don’t trouble the Strasbourg judges too much in the future.
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