I spent last week in Strasbourg taking stock of the government’s efforts to strengthen European human rights protection. Its ambitious aim is to muster enough support during the British chairmanship of the Council of Europe for much needed reforms at European and national level.
There is to be a high-level conference in Brighton in April – the third since 2010 – to approve a declaration on what needs to be done to ensure that the European convention on human rights and the Strasbourg court are effective in protecting the rights and freedoms of 800 million people. The central question is whether the momentum can be built up to make sure that the proposals are at last put into effect.
The European court of human rights is drowning in paper. There is a backlog of 150,000 applications, most without merit. The court is reducing this backlog rapidly, but even when the backlog has been dealt with, there will remain a hard core of 25,000 admissible and important cases that must somehow be decided in Strasbourg or the state concerned. There is no obvious solution to this problem.
The proposals in the draft declaration are mainly sensible and not new. The Strasbourg court, in an unpublished opinion, has said that it supports their main thrust, subject to two conditions: that the right of individual petition is preserved; and that effective measures are put in place to accommodate well-founded cases with which the court cannot deal. The court’s president, the British judge Sir Nicolas Bratza, has played a courageous part in rebutting British myths and misconceptions about his court.
The Brighton proposals rightly focus on what parliaments, governments and courts need to do. The prime responsibility for securing our rights and providing remedies is at national level. Strasbourg is a court of last resort. The proposals also rightly emphasise the importance of improving the national selection process of judicial candidates for the court, and strengthening the role of the committee of ministers in supervising the execution of the court’s judgments.
One of the government’s problems is the adverse impact of the attacks made by media and politicians who play to populist prejudices by calling for the repeal of the Human Rights Act, withdrawal from the convention, a narrowly literal and static interpretation of it, and a “democratic” veto or override to curtail “judicial legislation” – arguments that undermine the rule of law.
This reactionary approach is misinterpreted as being what the coalition seeks to bring about. That misconception weakens the government’s negotiating hand, as does the UK’s failure to abide by the court’s judgment seven years ago on prisoners’ voting rights that stains our good reputation for abiding by our international obligations.
Liberal Democrat ministers fully support reforms designed to strengthen human rights protection across Europe. But many NGOs do not trust the government’s aims and continue to argue against the UK initiative on the basis that reform is not needed. It saddens me to read their joint coordinated statements opposing the UK initiative, ignoring the practical problems and lacking strategic vision.
There are elements in the UK proposal with which I disagree: notably, the proposal to restrict the admissibility of complaints where national courts have taken account of the convention rights and not clearly erred, or that raise serious questions of interpretation or application of the convention. That might work in the case of the UK which has an independent and enlightened judiciary, but would undermine European supervision in states where the rule of law remains a fiction. However, it is one thing to focus on particular proposals; it is quite another to argue against the need for constructive reforms to improve the efficiency, accessibility and legitimacy of the court.
The great change that has occurred in my lifetime has been the development of a common law of Europe based on rule of law and respect for fundamental freedoms and rights. During this period of economic austerity, social tension and disillusionment with European and national institutions, we need to unite to strengthen the protection of human rights here and in Europe.
By Anthony Lester QC, a human rights lawyer and Liberal Democrat peer.