Post-Brighton: the future of the European Court of Human Rights
by Angela Patrick
With a backlog of more than 150,000 cases and two-thirds of its caseload coming from only six countries, the European Court of Human Rights has been a victim of its own success
After a blustery few days at the seaside, the 47 nations of the Council of Europe head home with their souvenir Brighton rock. Now, it is time to judge British efforts to secure the future of the European Court of Human Rights in the Brighton Declaration: the product of the six-month long United Kingdom chairmanship at the CoE. Snap assessments of the progress made herald a success or a damn costly failure because early UK proposals designed to neuter the role of the Court were rejected. However, the legacy of Brighton is yet to come.
Brighton - the third in a series of conferences, following Interlaken and Izmir - was sold domestically as an answer to a handful of politically unpopular and popularly unattractive judgments. At a European level, the rhetoric was different. The UK wanted to secure the future of the European court. That the court has been under pressure for more than a decade is no secret. With a backlog of more than 150,000 cases and two-thirds of its caseload coming from only six countries, it has been a victim of its own success. Measures already taken including significant efficiency measures proved positive, with the backlog to disappear by 2015. Yet - the UK called for greater, faster reforms, arguing the court could not meet the number of genuine admissible cases coming its way within its current resources.
A leaked first draft of the UK's proposals seemed a big ask: a divisive opening gambit to negotiations. Concrete commitments for national governments, parliaments and courts to improve rights standards - and enhance respect for Strasbourg judgments at home - were enthusiastically welcomed by civil society groups and academics, less so by some states. Three specific proposals appeared designed to feed the politicised UK debate about the justice of rights. Advisory opinions would oust the right of individuals to take claims to the court; principles of interpretation designed to recognise the primary responsibility of states to protect convention rights - subsidiarity and the margin of appreciation - codified and cases ruled out of bounds unless the national courts "clearly erred". Although much changed, the final Brighton Declaration is built on solid ground: better national implementation together with a strong and more effective European Court of Human Rights. The right to take your claim to Strasbourg is affirmed as a cornerstone of the convention system; the goal of the declaration, to protect it for future generations. This premise alone has angered some.
Coverage has focused on reform of the court. The UK's original proposals were blunt and had the potential to create a twin-track system, fundamentally undermining the universal nature of the convention. While the rough edges of the first draft have been knocked off, its broad goals remain. Advisory opinions are on the table; for further negotiation in an optional protocol. Amendments to the convention were agreed - with the text to be settled. These include expanding the power of the court to reject cases where there is little evidence of harm; reducing the time-limit for applications from six to four months and committing the judicial principles of subsidiarity and margin of appreciation to the convention - albeit in the preamble. This work will begin in June, as the UK passes on the chairmanship. Argument over the amended convention and its implementation by the court is on the horizon.
Speculating over the impact of these amendments is difficult, if not impossible. The declaration sends a strong political message to the court. Take, for example, the inclusion of the admissibility criteria in the preamble of the convention. Either the court continues to apply its own principles of judicial interpretation as it always has, guiding the degree of discretion appropriate to states under some circumstances or moves to prioritise the principles of margin of appreciation and subsidiarity over all others. Sir Nicolas Bratza, the UK president of the court, suggested the amendment was neither needed nor wise. He expressed discomfort that in effect though the declaration, states should be seen to be telling the court how to determine its cases - endangering its independence and authority. We share his concern. Significant changes to the legal approach could undermine both the authority of the court and the credibility of the convention system in the long-term.
Although changes to the deadline for application may have little effect where there is relatively easy access to legal information and modern means of communication, the impact on countries where claimants may rely upon assistance from civil society is less clear. This should be fully assessed. Reductions in the court's caseload should not arise from injustice in some of the most significant cases for some of its most vulnerable claimants. Proposals to improve national implementation have not survived unscathed. Valuable commitments to possible sanctions for states that ignore court judgments or who are repeat offenders; to a stronger, more defined role for national parliaments and to improved engagement with civil society have been lost or watered down. However, states facing up to their responsibilities to their citizens remains at the heart of the Brighton declaration. In the words of British minister Ken Clarke, the time has come for states to "pull their weight". Getting it right first time reduces the caseload of courts at home and in Strasbourg. The declaration commits states to more open acceptance of technical assistance and to discuss strengthening the enforcement of court judgments. It recognises a need for greater transparency and engagement with national parliaments. These commitments must be welcomed and built upon.
Tales of failure arise from the oversell of Brighton as a cure to UK "frustration" with the court. It was clear, that even under the most controversial proposals, cases at the heart of this anxiety - Hirst on voting or Abu Qatada - would remain within the jurisdiction of the court, raising serious and novel questions about the scope of the convention. Together with the suggestion that subsidiarity was shorthand for greater discretion without responsibility; this created an unrealistic picture of the UK's hopes for Brighton. The challenge of the Brighton declaration is for states to create mechanisms to better protect individual rights at home: for governments, parliaments and courts to integrate the convention into domestic law, policy and practice. Retrogressively reducing substantive protection for rights or removing enforceable remedies - as critics of the UK Human Rights Act 1998 advocate - would ignore the spirit of Brighton. How governments will respond remains to be seen. The bottom line from Brighton is – it is too soon to tell.
Angela Patrick is director of human rights policy at JUSTICE, the all-party law reform organisation and British section of the International Commission of Jurists