Court Out

‘Britain has a once-in-a-generation opportunity to reform the European Court of Human Rights’

Britain is well placed this autumn to bring about fundamental reforms at the European Court of Human Rights. Perhaps by way of a reward, the court has said the government can wait another year or more before taking steps to lift the ban on voting by prisoners.

It’s now six years since the Hirst judgment, in which the court’s grand chamber — its final appeal tier — decided that Britain’s blanket ban breached the first protocol to the human rights convention, which guarantees free elections. Confirming that decision last year in the case of  Greens and MT v the United Kingdom, the court told Britain it “must introduce legislative proposals” by October 11, 2011 to amend section 3 of the Representation of the People Act 1983, which disenfranchises serving prisoners.

How could the government avoid complying with this order? It took advantage of the fact that another country is trying to overturn the Hirst judgment. Italy has persuaded the grand chamber to hear what amounts to an appeal against a ruling earlier this year in favour of Franco Scoppola, a murderer. He had established that his country’s indiscriminate ban on voting by prisoners serving five years or more also breached the convention. 

A hearing has been scheduled for November 2 and the grand chamber is not expected to rule before next spring at the earliest. There is no reason to think that it will overturn its ruling in Hirst. But, just in case it does, the court recently told Britain that it would be extending the government’s deadline for legislation until six months after the ruling. Ministers breathed a sigh of relief, telling the joint committee on human rights that they welcomed the extended deadline.

Britain may be able to repay the compliment by using its once-in-a-generation opportunity to push changes through the court’s sponsoring body, the Council of Europe. Each of its 47 states takes it in turn to chair the council’s committee of (foreign) ministers for six months. The UK, which comes between Ukraine and Albania in the alphabetical list, takes over the decison-making body in November. That fits in very nicely with the court’s decision to elect Sir Nicolas Bratza, the British judge, as president from early that month.

And what reforms might Britain initiate? A good starting point must be the interim advice of the Commission on a Bill of Rights. This is a rather curious body, consisting of seven QCs and the Standpoint writer Michael Pinto-Duschinsky, chaired by Sir Leigh Lewis. At least three of the QCs strongly support human rights legislation; three others, along with Pinto-Duschinsky, are seen as deeply sceptical. That fault line is deftly handled by Lewis in the interim recommendations he drafted. You don’t get to be a permanent secretary without making sure that the advice you give ministers is the advice that ministers want to receive. 

The commission’s leading recommendation is that the human rights court should be reformed to ensure that only the most important cases come before it. Member states should assume primary responsibility for dealing with violations, and failure to do so 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.

To achieve this, according to the commission, judges must be given the power to dismiss cases that raise no serious violation of the convention or issues of European public importance. Similar advice was given to the committee of ministers a decade ago, when there were 18,000 cases awaiting a decision. The backlog has now reached 160,000 cases.

That seems sensible enough, but the commission’s second recommendation is less persuasive. Noting that the compensation governments must pay successful applicants is notoriously low, the commission questions whether the court should have to work out how much to award in routine cases. Fine, but if there were fewer cases before the court then less time would be spent calculating compensation.

Next, the commission recommends that states should nominate better qualified people for appointment to the court. At the moment, one infers, some countries nominate judges on the basis of whom rather than what they know. The Council of Europe has set up a panel to consider nominees, but it turns out that there is not enough money to interview all candidates, a state of affairs that the commission rightly regards as indefensible. 

All these reforms, of course, would make it less likely that Britain would suffer adverse judgments in matters such as voting by prisoners. But only a cynic would suggest that this is one of its motives for recommending reform.

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