David Cameron’s plans to curtail the powers of the European Court of Human Rights have been dismissed by its British president.
By Martin Beckford, Home Affairs Editor, Daily Telegraph, 7:00AM GMT 14 Mar 2012
Sir Nicolas Bratza, appearing before Parliament for the first time, offered a strong defence of the much-criticised institution and insisted it was not interfering with British courts or policies.
He claimed that last year it only found fault with Britain on eight occasions in almost 1,000 cases, and very rarely prevented the deportation of criminals or terror suspects.
And he brushed aside most of the suggestions made by the Government to rewrite the rules that underpin the Strasbourg court, in a blow to David Cameron’s calls for reform.
Sir Nicolas said some of the proposals would be “extremely difficult” to carry out while others would be “fraught with difficulty” and risk “friction and divisiveness” in the 47 states that have signed up to the European Convention on Human Rights.
The Government has had reform of the ECHR in its sights following a series of embarrassing rulings, such as the case brought by a convicted killer that requires prisoners to be given the vote, and the ban on the deportation of the radical preacher Abu Qatada.
It is trying to use the opportunity provided by its six-month presidency of the Council of Europe to bring about important changes, and the topic will top the agenda at a summit in Brighton next month.
A leaked draft declaration states that the Government wants to cut the number of full rulings by Strasbourg judges giving non-binding “advisory opinions” in some cases.
Questioned by MPs and Peers on the Joint Committee of Human Rights about this proposal, Sir Nicolas asked: “Would it lead to a decrease as it is intended to? Or it would lead to an increase in what is already a very heavy workload in the sense that we would be literally swamped with requests from courts from 47 different states for advisory opinions, which probably wouldn’t be binding on the court that had requested it."
Ministers also want written into the Convention the principles of “subsidiarity” – that rulings should be made at lower levels – and the “margin of appreciation” – which allows governments more leeway in interpreting rulings.
Asked why the court was not keen to write the principle of subsidiarity into the convention, Sir Nicolas replied: “I think we feel it is not necessary and I think we would have to see how it was actually expressed.”
He went on: “I think we would have more concern still about the suggestion that somehow the margin of appreciation should be legislated for as well.
“There I think there would be real doubts in attempting to legislate for something which varies very much depending on the nature of the article invoked, the breach of that article.
“I think it would be extremely difficult to legislate for a margin of appreciation which inevitably would vary.”
Asked about the British Government’s plan for new admissibility criteria that would deal with up to 25,000 pending cases, by only intervening when national courts had made a “manifest error” in failing to abide by Convention standards or case law, he said: “I think there are a number of hesitations.”
Sir Nicolas, who will soon step down as Britain's judge at the ECHR after 14 years, questioned if the additional procedure was necessary as many cases are already rejected.
He went on: “Unlike the current criteria which are very well known to us, the new criteria will have to be interpreted by the Grand Chamber. It’s far from clear what would constitute a ‘manifest error’ in interpretation.
“Once it has been interpreted, to apply it to 20 different judges to apply this as single judges would itself be fraught with difficulty.”
He concluded: “Finally I think there is a risk of friction or divisiveness, because I think there would be a danger in our court being forced to say that cases brought against certain states disclosed manifest errors on the part of the national judiciary.
“I think this could be quite unfortunate if we were forced into that situation.”
Sir Nicolas insisted that the ECHR would deal with a backlog of 92,000 cases by 2015 and was coping with other pending rulings, but “can’t currently cope” with up to 25,000 “substantial” cases.
His own solution was to make it easier for judges to tell applicants that “very similar” cases had been dealt with before, returning them to national courts.
Sir Nicolas also rejected the politicians’ allegations that the ECHR was interfering too often in British law and policy, citing figures that in 2011 it had only found eight violations in 955 judgements.
“The vast bulk of the cases against the UK are declared inadmissible, this is in large part due to the high rate of compliance with the Convention in this country.”
He said disagreements with our courts are “relatively rare”.
“I’m afraid I don’t think these criticisms are borne out that we are constantly interfering with the way that matters are dealt with domestically.”
He said there was “nothing exceptional” in the court saying that countries have responsibility if they want to return alleged criminals to places where they may face torture, but accepted he could understand the frustration of the public and politicians.
He claimed that of 776 recent applications not to return people to countries, only 34 had been accepted.
“I don’t agree with the suggestions made that we are micro-managing cases or somehow over-reaching in our powers.”
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