Ben Emmerson: The European Court of Human Rights enhances our democracy

Ben Emmerson: The European Court of Human Rights enhances our democracy

Lord Hoffmann is one of the country's greatest legal minds. But his quarrel with Strasbourg goes back to the Yorkshire Ripper

Tuesday, 8 February 2011

The European Court of Human Rights is once more under attack. In an intervention yesterday, triggered, in part, by the debate over voting rights for prisoners, Lord Hoffmann, the former law lord, called on the Government to consider withdrawing from the Strasbourg court's jurisdiction.

Lord Hoffmann forms part of a perfectly respectable body of opinion about the European Convention, which includes Lord Rees-Mogg and the journalist Melanie Phillips, who feel passionately that the Council of Europe's constitutional court lacks democratic accountability. Even if they appear to pander to a Europhobic sentiment, these views are not to be dismissed out of hand. They deserve serious consideration. Lord Hoffmann is, after all, one of this country's greatest legal minds. But like any effective advocate, Lord Hoffmann is selective in the points that he chooses to make.

His quarrel with the Strasbourg court can be traced back to the days of the Yorkshire Ripper, Peter Sutcliffe. In the late 1980s, Doreen Hill, the mother of Sutcliffe's last victim, Jacqueline Hill, brought a negligence claim against West Yorkshire Police, arguing that if they had done their job properly, Sutcliffe would have been caught before he killed her daughter. The House of Lords in 1989 decided that the police were effectively immune from civil claims for negligence in carrying out criminal investigations. The ruling remained the law for another 10 years, and it was gradually applied to more and more public bodies. So when a local authority failed to remove children from abusive parents, despite the most shocking evidence of a failure to perform their statutory childcare responsibilities, the House of Lords applied the Peter Sutcliffe principle. It didn't matter how much damage had been caused to the children, the English courts simply refused to entertain or examine the merits of the claim.

When the odd and unjust rule was finally considered in Strasbourg, it was swept away. That was hardly surprising. Shortly afterwards the Court took the same approach to child victims of domestic abuse, holding that where a local authority is faced with overwhelming evidence of ill-treatment, it is under a duty to use its statutory powers to remove the children to a place of safety. Would anyone now seriously quarrel with those propositions?

Well, er, yes. Lord Hoffmann would. In fact, he accused the ECHR at the time of seeking to impose a "Voltairian uniformity of values". He believed that the question of whether the police or local authorities should be held accountable in court is a local matter to be decided in the national courts.

Since then he has warmed to his theme. He has no quarrel with the "noble" principles enshrined in the Human Rights Convention. The devil, he says, is in the detail, and the detailed record of the ECHR shows an expansionist tendency to micromanage national legal systems, so that the concept of human rights is now a byword for "foolish decisions by courts and administrators".

As a judge, Lord Hoffmann would of course expect his arguments to be held up to close scrutiny. So what are the examples he cites? Before prisoners' voting rights, he charged that the Strasbourg Court took an accused person's right to silence too literally. He cited a case in which two English motorists tried to challenge convictions on the ground that the speed camera regime infringed their protection against self-incrimination. The European Court found no breach of the drivers' human rights. Undeterred, Lord Hoffmann quoted a minority dissenting judgment to make his point. When I was training to be a barrister we were warned that citing minority judgments to make a point was the last refuge of the desperate advocate.

Another of Lord Hoffmann's bugbears is a 2003 case involving night flights over Heathrow. Local residents argued that they were an infringement of their right to respect for home and private life. Lord Hoffmann told the Judicial Studies Board last year that this was "about as far from human rights as you could get". It is difficult to see what Lord Hoffmann is so exercised about. The Court initially found in favour of the families. But the Government appealed to the Grand Chamber (the second tier appeal in Strasbourg) and won the case on the merits. That is the way a judicial system is supposed to work.

In the debate over voting rights for prisoners it is important to scotch the notion that the Strasbourg court has issued a judgment dictating that murderers and rapists should have the right to vote. They have done no such thing. What the Court decided was that this country's blanket prohibition on voting rights for prisoners is potentially unfair and that some account needs to be taken of the gravity of a person's crime. It has then left it to Parliament to work out which prisoners should get a vote. That's why the matter is being debated in Parliament on a free vote.

David Cameron says extending voting rights to prisoners makes him feel physically sick. He is not alone in that. The last two Labour governments both kicked the issue into the long grass. Of course no politician wants to stand up in public and argue for the rights of prisoners. Why? Because there are (currently) no votes in prisoners' rights. But it is in situations such as this that a charter of legally enforceable rights becomes most important. The very reason we need human rights laws, and courts to enforce them, is precisely because society's most vulnerable, including unpopular minorities, are often unprotected by the ordinary democratic process. Extending voting rights to prisoners might, in a very modest way, provide some voice in Parliament for those who have lost their liberty.

Any advocate who had the pleasure to appear in front of Lord Hoffmann in the House of Lords will have the greatest respect for his intellect, his integrity and the quality of his reasoning. But it didn't follow that he always got it right. The same is true now.

The overwhelming majority of the senior judiciary have been working constructively with the Human Rights Act to strike a sensible balance and to build a credible body of British human rights jurisprudence. They have handed down judgments which have influenced the ECHR. Where necessary, they have declined to follow the judgments, or have adapted them to our own legal values, as they are perfectly entitled to do. Exaggerated attacks on the legitimacy of the ECHR have the potential to undermine that careful work and risk upsetting the balance of mutual respect that has been gently developing between the national and international courts, working in partnership.

Public criticism of judicial decision-making is one of the hallmarks of a healthy democracy. But if it is to contribute to informed debate it has to be accurate and balanced. Otherwise there is a risk of undermining public confidence in the rule of law. European Court of Human Rights judgments must be open to informed debate. In that kind of debate, Lord Hoffmann's contribution is to be welcomed and critically examined. Former senior judges are in a special position. They have a valuable contribution to make, by sharing the benefit of their knowledge and experience with the public, even where it could be inadvertently drawn into a political fray. But they must not carry their message too far because there is always a risk that their views might carry more weight with the public than they truly deserve.

The writer is a QC who specialises in international human rights law at Matrix Chambers.