The Rights of Human Rights and the Wrongs of Government

Tomorrow and Friday the Council of Europe, representing 47 member states and over 800 million citizens, will meet in Brighton to discuss reforming the figure head institution of the European Court of Human Rights. At the helm of the discussion is Britain, who currently chairs the Council of Europe, although rumour has it that David Cameron himself will not be attending.

Surprising? Perhaps not so. A series of embarrassing and unpopular defeats for the Government by the ECHR, such as the ban on deporting Abu Qatada to Jordan, has led to widespread media outcry over the supremacy of European law over British law. Since the ECHR was established in 1959, 61 per cent of judgments have gone against the UK government.

David Cameron has often come out and publicly condemned decisions made in the Strasbourg court, and following pressure from his own backbenchers, has promised to dilute the powers of the European Convention on Human Rights over the domestic court system. Earlier this year, he stated that Strasbourg must not "undermine its own reputation" by overruling national courts and has put forward reforms including restoring powers to national courts, which will be discussed at the summit in Brighton this week.

However rumour has it that the latest draft of the planned reforms has massively watered down British suggestions, before the summit has even commenced.

The main thrust of the British authored reform proposals involve a change in the synergy between national law courts and the ECHR.

One proposal suggests Strasbourg should rarely rule over cases which have already journeyed through the entire domestic court process. Already, this demand has been effectively erased.

Instead the UK Government proposed a more advisory role for the ECHR, witht he jutification that this would reduce the need for certain cases to be taken to Strasbourg. Instead it would come under an agreement that the “interaction between the court and national authorities could be strengthened” suggesting closer adherence to the Convention in British law.

The suggestion was made to supposedly reduce the backlog of cases at the ECHR, where more than 160,000 cases are yet to be tried. In its first forty years, only 45,000 cases were presented to the ECHR, compared to the 61,300 the court was asked to consider in 2010 alone.

The British suggestion, which essentially is designed to allow individual states to some extent ignore court rulings and adopt their own positions, comes in the wake of the case of killer John Hirst, where the UK blanket ban on prisoners voting was ruled by the ECHR to be unlawful. The matter reached the Houses of Parliament where MPs voted by 234 to 22 in favour of defying the ECHR judgment and the issue was kicked into the long grass.

David Cameron’s stance is, one imagines, partially designed to make sure this issue, and other controversial media spinners, are kept out of the public eye and are thus non problematic for the Government. However fears that compensation claims of UK prisoners appealing to the ECHR could run into millions has forced the Government to reopen this thorny issue.

The biggest issue faced by both the UK Government and the ECHR is the perception of an existing democratic deficit, whereby unelected judges have primacy over elected decision makers.

Most people often make the mistake of conflating the European Court of Human Rights with the EU. The two are separate institutions. Yet all new signatories to the EU must sign up to the ECHR before accession. As an original signatory, the UK Government’s membership of both is in many respects like being a fully paid up member of two separate clubs.

Despite this, successive Governments have always denied calls of leaving the ECHR, although confusing parallel legislation, such as the proposal to create a British Bill of Rights, to subsume the Convention and create a more idiomatic text, has been recently debated.

The rights set out in the ECHR itself have not been debated. The sticking point has been over how those rights are adjudicated, the main thrust of this week’s proposed reforms, and how rights are counterbalanced and interpreted and ultimately, by whom. Most often trials have to conduct a sort of titration of juxtaposed human rights, leading to conflicts of opinion between judges and legislators. What perhaps is lacking is a democratic override, whereby Parliamentary sovereignty is at the top of the food chain, or indeed the UK Supreme Court. As such assurances have been made that a British Bill of Rights would be “ECHR plus” in order to subsume the extant legislation to which Britain agreed when it signed up to the Convention into the newly drafted Bill.

Currently the House of Commons is obliged to accept Strasbourg’s rulings, however unpopular the conclusions. Yet what is unlikely to happen would be a shift of supremacy to the Commons, whereby all unpopular rulings could be overturned. What the British Government are trying to bargain for instead this week is a shift in priority.

Yet what is perhaps the most interesting aspect in this narrative is the potential sting in the tail that could emanate from Brussels.

This week, Parliament, also in Strasbourg, are debating the EU accession to the ECHR. Despite new signatories having to sign up to the convention, the EU itself is not a fully fledged member. Technical anomalies have thus far postponed the full accession of the EU tot he ECHR, which amounts to judicial positioning rather than the application of European law into EU courts.

What is interesting, essentially, is this:

Currently the UK could conceivably opt out of the ECHR. However if the EU signs up in its own right, the only way out for the UK would be by leaving the EU. This opens the door for future debate on the equilibrium between national sovereignty and ECHR supremacy to be both intruded upon by Brussels, and essentially slammed shut.

No wonder David Cameron is trying to push through these reforms. It may well be the UK’s very last chance.