The 'democratic override' that some in Britain favour would be "totally destructive", Sir Nicolas tells the Guardian in an exclusive interview
Allowing states to override decisions of the human rights court would be contrary to the rule of law and "totally destructive of the system," Sir Nicolas Bratza, the court's British president, has told the Guardian.
Although some campaigners have argued that governments should have a veto over rulings by the Strasbourg court, Bratza said he was glad to see that this idea was not included in David Cameron's speech to the Council of Europe last week or among the UK's draft proposals for a meeting taking place in Brighton in April of ministers from the 47-nation body.
In a rare interview, the court's 66-year-old president said he had mistakenly believed that critics of the court would have welcomed the decision by its members last year to elect a British judge as their head. Instead, press reports focused on Bratza's partly-foreign ancestry.
Bratza told a news conference in Strasbourg last Thursday that, whatever some newspaper headlines might suggest, "there is no open conflict" between the court at the British government. "We don't, of course, agree on everything," the judge said. But he had read the prime minister's "very measured" speech to the Council of Europe's parliamentary assembly a day earlier and "found much in it to which we, as a court, can subscribe".
Bratza agreed with Cameron that the backlog of inadmissible cases was unacceptably high; that the court should not simply give claimants a fourth bite of the cherry; it should not act as an immigration tribunal; and it must not "substitute its own judgment for that of reasonable national processes".
But he rejected the suggestion that this was what the court was doing, pointing out that it had found against the British government in just eight cases out of around 1,000 decided last year.
In his speech to the Council of Europe's parliamentary assembly, Cameron said that where an issue such as prisoners' votes had been "subjected to proper, reasoned democratic debate and has also met with detailed scritiny by national courts in line with the [human rights] convention, the decision made at a national level should be treated with respect."
But Bratza did not see that proposal as comparable to the "democratic override" which, as the government's commission on a bill of rights disclosed last July, is supported by some of its members.
According to the commission, this would allow the effect of a court decision to be overridden by the Council of Europe's parliamentary assembly or the international body's ruling committee of ministers. Alternatively, the committee of ministers could decide that a judgment should not be enforced "in the light of a clear expression of opinion by the relevant member state's most senior democratic institution".
Speaking to me last Friday at the modernist 1990s building designed for the Strasbourg court by by Richard Rogers, Bratza did not mince his words.
"One of the central pillars of the Council of Europe and the [human rights] convention system is that of the rule of law. The rule of law must mean that where a court decides and delivers a final and binding judgment, it is complied with - whether it is approved of or not by the authorities concerned.
"I believe it would be totally destructive of the system if one was to have any kind of system of democratic override: that is, that members of the national parliaments, the parliamentary assembly of the Council of Europe or, indeed, the committee of ministers could simply say: 'This is a decision we don't like and we are not going to implement it.'"
Noting that the override had both proponents and opponents within the UK's commission on a bill of rights, Bratza said he was "very glad to see that the [British] government has never suggested this as a measured reform which would be regarded as one they would espouse or one that would be acceptable".
And if some sort of veto were put forward, presumably the judges would regard it as unacceptable?
"I hope it wouldn't just be us. I hope there would be a large number of member states of the Council of Europe who would make it clear that this was something they couldn't possibly contemplate."
What, though, if we were to reach some impasse on the issue of prisoners voting? The issue is currently under consideration in an Italian case called Scoppola, and a decision is expected later this year. Assuming, as seems likely, that the court will not overturn its previous decision in the Hirst case, Britain would then have six months to end the blanket ban on voting by prisoners. What if Cameron were to dig in his heels and insist that the UK's refusal to comply with the court's ruling should be "treated with respect"?
"I would like to treat this as a hypothetical question because I don't think we have ever faced that situation," Bratza said. "It's one that would be a matter for the committee of ministers to try to resolve through negotiation. Other than through persuasion and peer pressure though other states, the only sanction for non-compliance or some other breach of the obligations of the member state is expulsion of the member state. But this is inconceivable in the case of the United Kingdom, who are a very important part of the convention system and always have been a leading state within the Council of Europe."
But for how much longer? Might Britain simply pull out?
"Again, I'm glad to say that, so far as I can judge, the UK have ruled this out," Bratza told me. "The secretary of state for justice [Kenneth Clarke] has made it quite clear that this is not something which is in the UK's contemplation. I welcome that."
But there is no denying that some sections of the media would support withdrawal. I show him an article in last week's Daily Mail headlined Arrogant Judges Trample on UK Law. A caption in the print edition describes him as "not the best qualified" judge. The online version of the story has a different headline and claims he seems to have "gone native". Why, I ask him, is the human rights court seen in such a toxic way in Britain?
"Your guess is as good as mine on this," he replied. "I do find it very puzzling as to why there is this strong feeling. It's not just a feeling against the court or against the convention. It's a feeling directed more generally against the Human Rights Act."
That was seen as the "whipping-boy", in his view.
"I think this is clear from the attacks that are made not just on our court but even on national courts, where they take a decision which is unpopular: the problem is always seen in terms of the Human Rights Act which grants rights but doesn't actually impose responsibilities on the individual. I think there is an anti-European element in this. I think there is to some extent the rather insular feeling that we should not have a foreign court - and we are seen as a foreign court - interfering in matters which are better dealt with domestically.
"But I think there is also this sense that, when anything goes wrong, it must be the result of the Human Rights Act. And, in the great majority of cases, where something has gone wrong, it has nothing whatever to do with the act."
The Human Rights Act is based, of course, on the human rights convention, ratified by the UK as long ago as 1951. The convention, and the court, are the responsibility of the Council of Europe, which is chaired for six months at a time by each of the member states. As the UK is currently in the chair, Britain is responsible for developing the latest proposals to reform the court. These will be put to an international ministerial conference in Brighton in April, although any decisions will be for foreign ministers to take back in Strasbourg in May.
The latest draft of these propoals, known quaintly as a "non-paper", offers three main options: a "sunset clause", new admissibilty criteria and a "pick-and-choose" discretion for the court. As far as Bratza is concerned, none of these options would involve any transfer of powers from the court to member states.
"I don't think any of them are intended to prevent cases coming here," he told me. Under the planned sunset clause, applications would drop off the court's list of pending cases if they had not been notified by the court to the government concerned with a specified period of a year or two. "But of course it would still be for the court to avoid that by communicating the case within the time allowed," Bratza pointed out.
The thinking behind proposed new admissibility criteria - the second option - is that cases would not come before the court if they had already been examined by a national court applying the convention. An exception would be made if the national court had "manifestly erred" or if the case raised a serious question of interpretation. The British non-paper argues that this would reduce the number of cases in which the court could substitute its own view for that of the national court.
Not quite. "A new inadmissibility criterion would of course, if it were adopted, be for the court to apply," Bratza insisted. "We would have to decide whether there was a manifest error on the part of the state authorities concerned, and in particular of the national courts concerned, before we could reject a case as inadmissible under the new criterion... Ultimately, in those cases we would be the ones who would be interpreting the provision and applying it."
The third option - giving the court the discretion to choose its own cases - would seem to put the judges in the driving seat. But Bratza feared it could let governments off the hook.
"The problem with a pick-and-choose idea is: who does the picking when we have that number of cases [nearly 65,000 applications last year] coming in in 39 different languages and from 47 different legal systems?"
Surely the judges would continue to do so?
But that would leave the court deciding hundreds of cases rather than thousands as at present, he reckoned. What should it do with the cases that were not picked and chosen?
Send them back for a decision by the national courts, I suggested, perhaps with some guidance.
"It's fine sending cases back if one were satisfied that the national authorities would - where there has been, on the face of it, some non-compliance with the convention - do something to remedy that at national level... That's admirable; but only if one is satisfied that the national authorities would deal seriously with a case where they have already let down the applicant in the first place."
So that would mean trusting some countries and not others, I suggest: an invidious choice for a court to make. But doesn't the US supreme court choose its own docket?
"We are not in the same position as the US supreme court," Bratza explained. They could refuse to hear a particular case knowing that it had already been heard by at least two federal courts and probably by one or two state courts as well. That's not the case with some of the emerging democracies of Europe.
The president saw difficulties in moving to a system under which the court might have no regard to cases that raised substantive problems. "Only if we were really satisfied that by returning them to the respondent state they would be dealt with would we really espouse such a system."
But that would still benefit the UK, I suggest, because Strasbourg would have to put more trust in British courts.
"The [Strasbourg] court is not a problem for the UK anyway. If less than one per cent of [UK] cases end up with a finding of a violation, it's very difficult to see any need to send cases back. We are rejecting the great majority of cases against the UK and in summary form."
Bratza is a very private man and this is only the second press interview he has ever given as a judge. The first, also with me, was in 2003. He has not given any broadcast interviews since taking over a president last November, and he must retire when his term of office finishes at the end of October this year.
Indeed, he was apparently not at all sure whether it was worth doing the president's job for just a year. What seems to have persuaded him to put his name forward to his fellow judges was the constant criticism he read in the press that the human rights court did not have anyone at the very top who was familiar with a common law system.
But Bratza clearly didn't understand the British media.
"When I was elected as president of this court... I thought it would be widely praised that at last they had a UK president. And it is interesting that the focus was, instead, about the fact that my father was born in Serbia and that he was a musician and that I hadn't been a true judge at home because I'd only been a recorder [part-time judge in England and Wales] for 10 years.
"It seems to me that you can never succeed. If they have a British president well, he's not really British. And if you don't, then you don't have anyone who understands the national system. Well, when I was born, bred, educated, practised law, became a judge in the United Kingdom, I thought I did have quite strong UK qualifications. But perhaps not."
I reminded him that he is descended on his mother's side from the Russell of Killowen family, which produced three successive generations of law lords.
"That was conveniently ignored as well," he noted ruefully. "My great-grandfather was the lord chief justice; my grandfather was a lord of appeal and my uncle was a lord of appeal as well."
Is that where he would like to end up? He is already a judge of the high court, on secondment, and would certainly sit in the court of appeal if he chose to return to London. He would be a valauble asset to the supreme court. Bratza refused to be drawn, protesting that there were plenty of judges in Britain with "profound knowledge" of human rights.
But none has his 40 years experience as advocate and judge. If the courts don't snap him up, there will be plenty of others who'll value his skills and expertise. What direction Strasbourg will take after he retires in October is altogether another question.
Comment:
When Sir Nicolas Bratza was elected President of the Court I did see reports in the press welcoming this move. However, there were expectations that he would suddenly automatically support the UK simply because he is British. When this expectation was not met it led to criticisms of him and I did see a reference to him being the son of a Serbian violinist, as though he is not really British at all but instead a foreigner. This anti-foreign attitude in the gutter press sickens me.
I was alarmed when I first heard mention that there should be a democratic override of decisions of the Court. I agree that such a move would be contrary to the rule of law and have a negative impact upon the whole system.
I don't think it is enough to simply say that there is no open conflict between the Court and the British government. The statement fails to tackle the inaccurate media reporting claiming that a war exists. Article 10 of the ECHR is not absolute and Sir Nicolas Bratza could have reminded the media that it should act responsibly when reporting the Court's judgments. This problem must be tackled head on and not ducked because otherwise the media will continue to take liberties if not challenged.
Sir Nicolas Bratza also failed to tackle this issue. “In his speech to the Council of Europe's parliamentary assembly, Cameron said that where an issue such as prisoners' votes had been "subjected to proper, reasoned democratic debate and has also met with detailed scrutiny by national courts in line with the [human rights] convention, the decision made at a national level should be treated with respect"”. As he was a judge in Hirst v UK (No2) he knows that I argued and the Court accepted that there had been no proper, reasoned democratic debate on the issue in Parliament. Too late the Backbench Business Committee put forward an unlawful motion which was followed by a sham debate in the Commons. The High Court abdicated responsibility and there was no detailed scrutiny of the issue Had it been in line with the ECHR then the High Court would have issued the declaration that s.3 of ROPA 1983 was incompatible with the HRA and Article 3 of the First Protocol of the ECHR. A failure to decide at a national level deserves no respect.
Sir Nicolas Bratza did not answer this question: “What, though, if we were to reach some impasse on the issue of prisoners voting?”. In my view, over 6 years has passed since Hirst v UK (No2) was decided and if the stand off is not an impasse then I don't know what is. It is not a hypothetical question but a valid question requiring a proper answer. It beggars belief that Sir Nicolas Bratza can say “ I don't think we have ever faced that situation”. In my view, the Court, Council of Europe and Committee of Ministers have not faced up to the situation. That is, the act of defiance by the UK. It is no good saying that it is for the Committee of Ministers to try to resolve. That is according to the rules. But neither the UK nor the Committee of Ministers are playing by the rules. Therefore the impasse must be resolved if the ECHR and Court are to be effective in protecting human rights for all citizens in Europe. As a recent BBC documentary showed the corruption within the Committee of Ministers prevents Member States attacking other Member States for non compliance with the Courts judgments for fear that the finger pointing Member State will in turn be finger pointed for its non compliance with the Court judgments. It is a weakness of the system that the Court judgments do not have direct effect. Another weakness is that there is no complaint mechanism allowing the individual to air a grievance when the system fails to protect human rights. Sir Nicolas Bratza is part of the problem and not the cure when he states it is inconceivable in the case of the United Kingdom that it can be expelled. Instead of requiring a two-thirds majority of the Committee of Ministers to send a case back to the Court for a ruling that a Member State has failed to comply with a judgment, this should be the right of the individual whose case has not been complied with. The UK has shown that given an inch it will take a mile. This margin of appreciation must be reduced to fully comply with a judgment within 6 months or else face immediate sanctions.
I am disappointed that Sir Nicolas Bratza saw fit to give an audience to Jack Straw and David Davis both of whom have attacked the Court decision on prisoners votes, and yet neither my barrister, nor my solicitor, nor myself were allowed an audience with the President of the Court! He has given Joshua Rozenberg two bites at the cherry whilst denying us even one bite. The Committee of Ministers rules are clear, there is to be no rehashing of arguments lost before the Court. And yet, the UK has done precisely that in Greens and MT v UK, and Scoppola v Italy (No3). If Sir Nicolas Bratza is to have any credibility he must demand that the UK fully complies with Hirst v UK (No2) without any more undue delay, otherwise the President of the Court is just as guilty as the UK in allowing the principle of justice delayed is justice denied to be meaningless.
