Leaked proposals set out Britain's tough line towards Strasbourg

Leaked proposals set out Britain's tough line towards Strasbourg

UK wants to stop cases reaching European court if question is "substantially identical" to one that a national court has already considered

Joshua Rozenberg
guardian.co.uk, Tuesday 28 February 2012 15.49 GMT

Cooling off at Brighton beach. The town will host the Council of Europe's summit in April 2012. Photograph: Chris Ison/PA

The UK's plans to water down the human rights convention have emerged as a key element of the Council of Europe summit that Britain is hosting at Brighton in April.

Although the government has refused to publish the draft declaration it circulated last Thursday to the other 46 states that are signed up to the European court of human rights, a leaked French text makes it clear that the UK wants more cases decided at national level and fewer embarrassing rulings from Strasbourg.

The UK is seeking an amendment to the human rights convention to enshrine what the Strasbourg court refers to as the margin of appreciation - which allows states a level of discretion in applying the convention.

If Britain gets its way, the principle of subsidiarity would also be written into the convention. Explaining this, the draft Brighton declaration says that national authorities are normally best placed to enforce convention rights. The UK argues that national parliaments and courts should decide how to implement convention rights, limiting the Strasbourg court's role to reviewing decisions taken at national level and ensuring that those decisions were within the state's discretion.

A series of options designed to reduce the court's workload are on the table for the Brighton summit. The simplest of these would reduce the six-month time limit within which an application must be brought.

More dramatically, the draft declaration proposes amending the human rights convention to make a case inadmissible if the claim was substantially identical to a question that had already been considered by a national court. There would be exceptions for cases where the national court had "clearly erred" or where the case raised a serious question of interpretation.

Reducing the number of cases declared admissible would be balanced by a new procedure under which the court could deliver advisory opinions. The UK supreme court and its equivalent in other states would be able to put questions to the Strasbourg court, in much the same way as courts in the EU can seek advice from the court of justice in Luxembourg.

Crucially, it would be for the national court to apply the Strasbourg judges' opinion to the facts of the case.

The broad outlines of these proposals have been debated for some time but, almost inevitably, the devil is in the detail. What's proposed is that officials at the Council of Europe should draft amendments to the human rights convention within the next year.

The Strasbourg judges have no problem with the principle of subsidiary or the margin of appreciation. But as Sir Nicolas Bratza, the court's president, told me in January, the judges are not prepared to relinquish their ultimate authority. In the judges' view, they and not the member states should decide whether a case should be decided in Strasbourg or resolved at local level.

Ministers are confident that a text will be hammered out in negotiations over the next six weeks and agreed at the English seaside on April 20. How far that text will go remains to be seen. And it will be some months more before Britain learns how effective the reforms will be at reducing the defeats that governments regularly suffer at the European court.

However much the government insists that it is trying to make the court operate more efficiently, it is hard to escape the conclusion that its main objective is avoiding any more rulings such as the decision that the UK's blanket ban on prisoners voting was a breach of their human rights, and the recent decision that Abu Qatada cannot be tried in Jordan on evidence tainted by torture.