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Friday, September 09, 2011

David Cameron: You cannot be serious!

David Cameron: You cannot be serious!

The ball is out of your court in relation to Hirst v UK (No2), the Prisoners Votes Case, all that is required is for the UK to fully comply with the judgment.

It would be absurd if the rules allowed John McEnroe to overrule the umpire if he lost a game...

Reform of the European Court of Human Rights
8 September 2011

"Considering some form of ‘democratic override’ or dialogue; in order to recognise the legitimate role of Parliaments and the democratic process in all of the Member States. In states where there is a supreme court with powers to strike down legislation there is always some mechanism, usually requiring an enhanced majority or approval in more than one forum, whereby the democratic will can ultimately prevail over court decisions. Section 33 of the Canadian Charter of Rights and Freedoms is one such power. Some believe that something equivalent should be considered within the Council of Europe and that fundamental reforms of the Strasbourg Court need to balance greater focus and efficiency on the one hand with greater democratic accountability on the other. The Interlaken Declaration called for a simpler procedure to amend Convention provisions of an organisational nature; an extension of that approach could be to empower other institutions of the Council of Europe to add qualifications to Convention rights. This could allow the effect of a Court decision to be overridden if such was the will of the Parliamentary Assembly or Committee of Ministers, or perhaps of both acting collectively. A variant of this approach might be a power in the Committee of Ministers to determine that a Court judgment should not be enforced if it considered that that course of action was desirable and justifiable in the light of a clear expression of opinion by the relevant Member State’s most senior democratic institution. Another variant could be a requirement in respect of proposed ground-breaking findings of violations for the Court first to consult the other Council of Europe institutions and for the Court to take a collective expression of opinion into account.

Those opposed to this concept argue that any possibility of override is fundamentally inconsistent with the Rule of Law inherent in the Convention system and with the concept of the Convention as a charter of fundamental rights and freedoms. They ask how, if a right or freedom is fundamental, it can be right to allow any legislature, however democratic, to override it. They point, for example, to the fact that there are examples in history of discriminatory laws being passed by democratically elected assemblies. They note that the ECHR as a judicial body is an essential protection against majorities voting to discriminate against minorities.

For some members of the Commission, this area is a key issue and of sufficient importance that, in the view of one member at least, they would have wished to have added an additional principle to those mentioned as guiding the interim advice: namely that the democratic legitimacy of the Strasbourg Court should be better assured while at the same time ensuring its judicial independence. This is, however, a matter which the Commission has yet to discuss and address.

Others argue not that there should be a mechanism of democratic override but that the absence of any such override should act as a check on “activism” on the part of the Court. The jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities, particularly those that involve allocation of financial and other resources. However, those who question the charge of judicial activism argue that there is no evidence that the Court can fairly be criticised for over-reach and that the Court in fact allows the State authorities a wide margin of appreciation or area of discretionary judgment based on the principle of subsidiarity. They point to the fact that UK courts are criticised in the same way when they interpret and apply the law in ways that create controversy, but that a purposive approach to statutory interpretation, which updates the law, is well established in the common law

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