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Friday, 4 May 2012

The ECHR and democratic legitimacy

Two interesting articles on the UK Human Rights Blog recently raised once again the question of the legitimacy of the European Court of Human Rights.

Both are thoughtful contributions and therefore welcome relief from a debate which at times descends into variations on Godwin’s law. On the one side argument often reduces to xenophobic insults about the impudence of Europe telling anyone else what to do. On the other side some lawyers seem to respond to criticism of the ECHR with the sort of arrogance that one associates with Latin American military dictatorships of years past, who insisted that they had specialist knowledge and experience that justified their undemocratic hold on power.

To begin with, it is worth reiterating that the Convention was drafted by English lawyers and that by and large it reflects the values of the common law as they had evolved over centuries. Moreover, for all the tabloid fodder, not all of Strasbourg’s decisions (or domestic decisions made pursuant to the Convention) offend majority public opinion by any means. In fact almost all applications from Britain fail to get past the admissibility stage, and of those which do only a handful attract media interest (raising a separate issue about the advice and funding behind the multitude of failed applications – perhaps a similar provision to the requirement of permission to appeal to the Court of Appeal could be introduced at the domestic level).

It might also be argued that incurring some uncertainty in our domestic law and living with the odd derisory decision is a price worth paying for all of Europe – including former Communist countries with a shocking history of governance in the past century – to be subject to a regime of rights and freedoms based substantially on British values. If Britain considers itself above decisions with which it happens to disagree, then the entire institution of Strasbourg will weakened and other countries with less regard for the rule of law will follow suit.

Yet there remains an objection which needs to be confronted, and which, incidentally, will not be answered (merely replicated) by a British Bill of Rights. Fundamental questions involving freedom of speech, freedom of religion, the right to life, the right to vote and so forth have come before the courts in recent years. Until the Convention was brought into domestic law, most of those arguments would have been held before and settled by Parliament. In those days the true guarantee of freedom in Westminster countries was usually said to be the regular ballot box rather than the judiciary.

Two questions follow: first, whether the Convention and the Strasbourg court have sufficient democratic legitimacy, and secondly, more generally, whether the courts are a better forum to determine hotly contested ethical, moral and religious questions.

As to the first question, the democratic authorisation of the European Court comes from the fact that it was Parliament who passed the Human Rights Act 1998 and thereby brought the Convention within the jurisdiction of the domestic courts. Parliament always retains the option of withdrawing, though there would be turbulent international and domestic political fallout if it ever did so.

It should also be remembered that tyrannous regimes have sometimes come to power through elections. Further, the rights of the majority are rarely threatened: Convention rights, it can be argued, are needed to protect the unpopular minority.

As to the second question, irrespective of whether one agrees with the answers they come up with, courts can only flesh out the broad detail of Convention rights slowly, as and when cases come before them, which leaves much uncertainty (uncertainty being an obvious and damaging blow to the rule of law) as well as handing significant power to the judges (“government of the people by the judges for the lawyers” went a saying when I was at law school).

Moreover, the Strasbourg court is seriously in need of reform. It is severely overburdened, with many thousands of applications outstanding. It is composed of one judge from each member state – meaning that tiny political enclaves make the same contribution as countries with enormous legal resources such as Germany and Britain. The appointment process of some member states’ judges is also questionable, as (consequently) are the qualifications of some judges. These points exist whether or not one supports the court all, and I would add that logically Strasbourg’s supporters should also be the strongest advocates for its reform.

There were other possibilities for bringing British law into line with the Convention whenever it fell short. A cross-party committee primarily composed of legal experts could have studied Strasbourg decisions and advised whenever domestic law needed to be altered, for example. This would have answered any question about democratic legitimacy since any substantive change would have had to go through Parliament.

In this regard readers might consider the Australian position. That country does not have a Bill of Rights, though in a series of five cases in the 1990s the Australian High Court controversially found an implied constitutional protection of freedom of political discourse, despite no precedent for any such right being found in the ninety years of the Constitution’s history to that point. Moreover, the Constitutional Committee of 1898 had specifically rejected a proposal to incorporate a US-style Bill of Rights in the constitution.

A national human rights consultation took place in Australia in 2008 - 2009, and recommended the introduction of a Human Rights Act. The government rejected the recommendation, but did introduce a 'human rights framework', which among other things changed the way in which legislation in the Commonwealth Parliament was scrutinised by reference to international human rights instruments.

Australia is anything but a tyranny compared with the vast majority of states past and present, so its experience merits consideration. But it may be – and it remains my own view - that the best step would be for Britain to remain subject to the ECHR, but advocate strongly for its reform to clear its backlog and improve the standard of appointments.

Note: see also this interesting contribution on the UK Constitutional Law Blog.

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