For many British politicians and for much of the UK press, the European Court of Human Rights is the very embodiment of foreign meddling in British life. Two particular findings of the Court have stirred passions in Britain: a 2005 ruling that anyone in prison should be allowed to vote in elections (not currently permitted under UK law); and the recent judgement that the militant Islamist preacher Abu Qatada, currently held in a British jail, could not be deported to Jordan as long as any witness testimony against him in a Jordanian court might have been obtained through torture.
These rulings provoked storms of protest and fed into calls for Britain to withdraw from the European Convention on Human Rights and other European organisations.
Against such a political backdrop it is little surprise that prime minister David Cameron has used the opportunity of Britain’s chairmanship of the Council of Europe Committee of Ministers to demand reform to the workings of the Court.
Cameron’s rendez-vous in Strasbourg on January 25 was played in the British press as if it were to be a full frontal attack on the Human Rights Court, on the Convention and on the Council of Europe as a whole. That’s how the mood music was played for press and politicians in advance of the speech. The reality was more nuanced.
The prime minister’s main aim was to bring down the temperature. He used the classic device of calling for reforms which are in fact well under way, and of assuming progress over time. Attacking the case backlog he cited the 160,000 cases which built up, partly owing to the surge in countries joining the Council of Europe after 1989. The backlog is now being dealt with because of changes in the Court’s practice, although judges are still having to handle more than 50,000 cases a year.
Cameron used the example of “the applicant taking a bus company to court for 90 Euros compensation, because they felt their journey from Bucharest to Madrid hadn’t been as comfortable as advertised” to suggest that the Court of Human Rights was becoming “a small claims court” and said that “we are hoping to get consensus on strengthening subsidiarity – the principle that where possible, final decisions should be made nationally”.
In a most unusual intervention, President of the Human Rights Court, Sir Nicolas Bratza (a British lawyer educated, just like David Cameron, at Brasenose College, Oxford), decided to respond to criticism of his Court in the Independent newspaper (which also outlines the most pertinent ECHR cases involving Britain). Sir Nicolas notes that of 955 applications to the Court against the UK in 2011 only eight were found to violate the Human Rights Convention. He spells out how ECHR judgements have extended human rights in Britain over many years.
Still, there is no question that the European Court of Human Rights must accelerate reform. Until 2010 the Russian Duma blocked a protocol which would have helped speed the handling of cases, but that obstacle has now been lifted.
As to Cameron’s demand that national courts be regarded as final arbiters in human rights cases, it has its dangers. National courts across 47 countries cannot always be relied upon to uphold the provisions of the Convention on Human Rights. It is surely no coincidence that a majority of cases coming to the Court relate to Russia and the Ukraine, where individual rights are often under pressure.
Implementation of rulings is also a big challenge for the Court, but for the UK or others to question the Court’s jurisdiction would make it all the more difficult for the provisions of the Human Rights Convention to extend across Europe – a debate which may have particular topical relevance to Hungary.
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November 4, 2022