The ECtHR to be reformed in the New Year

The ECtHR to be reformed in the New Year



Inside Time can exclusively reveal that the European Court of Human Rights is to be reformed in the New Year 2010. The news comes following a Round table discussion in Bled, Slovenia, on 21-22 September 2009, addressed by Erik Fribergh, Registrar of the ECtHR.

There is a sense of irony in that the meeting was called Bringing Rights Home, because before the 1997 General Election the Labour Party published a consultation document, Bringing Rights Home, in which it was proposed to introduce a Human Rights Act incorporating the European Convention on Human Rights into English law.

There will be a conference on the future of the Court which will be taking place on 18-19 February 2010 in Interlaken, when Switzerland will be chairing the Committee of Ministers of the Council of Europe.

After outlining the problems faced by the Court, Erik Fribergh stated: “Put simply, the solutions to the Court’s problem are either to reduce the volume of incoming applications or to simplify or speed up the process by which cases are dealt with, indeed both are necessary. There are some measures that can be introduced almost immediately, while other proposals will require legislative reform. Experience has shown that that may take many years. What I hope is that the result of our discussions this morning will be a strong message to the Governments, parliaments and public opinion, so that when the Government representatives meet at the political conference in Interlaken they will launch the necessary process of reform”.

One of the problems Erik Fribergh refers to is repetitive cases arguing the same violations against the same States coming before the Court. In the Prisoners Votes Case Hirst v UK(No2) the Court expressed concern that it did not want to see further cases on this issue, therefore placing an obligation on the UK to amend legislation in such a way that it was compatible with Article 3 of the First Protocol of the Convention. In R (on the application of Chester) v SECRETARY OF STATE FOR JUSTICE and another, it was stated that the proposals following the two consultation exercises by the Ministry of Justice “The Government believes that this is compatible with the ECtHR ruling in Hirst (No 2)”. Given that I was a post-tariff lifer, and that Chester is a post-tariff lifer and excluded from the franchise, I beg to differ with the government’s interpretation of compatibility with both the Convention and the Prisoners Votes Case.

Erik Fribergh could have been talking about the Prisoners Votes Case and Jack Straw’s inordinate delay in remedying the situation when he stated: “Firstly, there are cases raising issues of a systemic nature, which stem from a defective legal provision or administrative practice and which can in fact be remedied fairly easily, by modifying the law or practice concerned, provided of course that the political will exists”. I would contend that there has been a systemic failure from my first taking the case to the High Court, through to the MoJ’s failure to respond to the ECtHR judgment, and now the failure to address the issues by the High Court in Chester.

Erik Fribergh argues that the Court is taking on the guise of a small claims court and proportions blame: “The very existence of all these repetitive applications is clear evidence that the States and the Committee of Ministers have not adequately fulfilled their obligations when it comes to executing previous judgments. Should future policy in respect of repetitive applications not, therefore, impress upon the States once and for all that they must effectively honour their obligations? And impress upon the Committee of Ministers that it must effectively supervise the execution of judgments”.

In Rights Brought Home: The Human Rights Bill the government stated: “The United Kingdom is bound in international law to observe the Convention, which it ratified in 1951, and is answerable for any violation”. The UK also has an obligation to abide by the decisions of the Court. A main purpose of the Bill being: “to make the Convention rights enforceable directly in this country”. This was to save cases having to go to Europe to be decided. While this has worked in some cases, the notable exceptions tend to be prisoners rights cases. The Judiciary can be fairly criticised for misapplying the “hands-off” doctrine, otherwise known as deference to Parliament. The Human Rights Act 1998 was meant to solve these problems.

An obvious weakness in the Act is that the High Court is not given the power to strike down offending legislation, like the US Supreme Court can, and can only declare that an Act or part thereof is incompatible with the Convention and/or HRA. If the High Court so makes a declaration: “It will then be up to the Government and Parliament to put matters right”. However, neither of these institutions can remedy the situation if the High Court sits on the fence whilst Jack Straw kicks the ball into the long grass. This problem arises because: “The Convention consists of 18 articles and six protocols containing additional rights added since the Convention was prepared. However, not all of these are brought into UK law by the Human Rights Act. One significant omission is Article 13, which guarantees "an effective remedy before a national authority". The result is that, even if your rights have been violated, you may not get a proper remedy from a UK court. This will arise particularly where UK law conflicts with the Convention. In this situation you will still have to apply to Strasbourg, as before” (RNID Human Rights Act (factsheet)). We do not want to have to keep going back to Europe every time a prisoner feels he/she is being denied the human right to the vote.

Another weakness in the HRA is section 6. While it states at 6(1) “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. For example, Jack Straw failing to do his duty and submitting the Prisoners Votes Case to Parliament to amend the necessary legislation, it states at 6(6) ““An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order”.
In effect, this appears to deny an effective remedy. However, I would contend that by adopting a “hands-off” approach the High Court is acting unlawfully under s.6(1). As it stands, in effect, Jack Straw is claiming to be above the law. Furthermore, he is stating that he can do no wrong. The High Court must act on what is a constitutional issue when the Executive and Parliament are not in a position to act. If there is an obstacle to a solution then the obstacle must be removed. I would contend that an Order of Mandamus could be sought from the High Court forcing Jack Straw to do his duty. In this way it bypasses s.6(6) of the HRA. I am not convinced that s.6(6) negates 6(1) as this would be absurd. In my view, 6(6) allows for deference to Parliament where the case has not already been decided by the ECtHR. Where it has been decided, for example Hirst v UK(No2), the High Court must adopt a “hands-on” approach, to ensure the human right is no longer in the position to be violated further and to prevent the High Court from breaking s.6(1) of the Act.

Originally published in Inside Time.

Iain Dale drops a bombshell in the lap of the government Government stalls on prisoner voting.

More on the Committee of Ministers meeting 1-4 December 2009 here.

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