A proposal to reform the European court plays to the myths of Strasbourg's supposed interference and undermines protection
Philip Leach
guardian.co.uk, Thursday 1 March 2012 10.30 GMT
How best to protect human rights across Europe? Governments will meet in Brighton next month to consider the future of the European court of human rights. The UK chairs the Council of Europe, and it has just published its proposals for reforming the court in a document called the Brighton Declaration.
Some UK politicians and commentators have the European court in their sights. The court unjustifiably interferes in national decisions with its over-activist approach, they argue, and the European convention on human rights is a "villains' charter". Much of this criticism has followed the Strasbourg ruling that banning all prisoners from voting breaches the convention, along with the court's refusal to allow the UK to deport radical Islamist cleric Abu Qatada.
There has been much mischievous peddling of myths about the court, which needs to be corrected. In fact, Strasbourg agrees with the decisions of the UK courts most of the time. The UK loses only one case in 50 in Strasbourg and it has an exemplary record in implementing European court judgments (the prisoner voting case being the recent notable exception).
Strasbourg decisions have had a significant impact on the rights and freedoms of individuals in the UK, for example, improving the effectiveness of investigations into deaths where the state is responsible, and protecting people from unnecessary intrusion into their privacy through surveillance. Legislation outlawing forced labour and servitude has its origins in a Strasbourg ruling. The court has also provided a vital safety net for some of the most vulnerable people across Europe, including the Kurds in Turkey, civilians caught up in conflict in Chechnya, the Roma people and victims of human trafficking. Debate in the UK has been far too parochial – we need to remember the role played by the court across 47 European countries with a population of more than 800 million people.
The Brighton Declaration rightly emphasises the primary importance of national bodies both in preventing human rights violations in the first place and in providing effective domestic remedies when things go wrong. One of the principal reasons for the court's huge backlog of cases (more than 150,000) is that states are failing to implement Strasbourg judgments, with the result that the same issues return to the court time and time again. It is welcome that the UK is proposing that the enforcement mechanism should be strengthened.
Yet the declaration does contain an alarming proposal – to limit the court's jurisdiction where a case has already been examined by a national court, unless it has "clearly erred" or the case raises a serious question about the convention. How are such decisions to be made, and who should make them? An example of a UK case that might never have been considered by the Strasbourg court under the proposed new criterion concerns the indefinite retention of the DNA profiles of about one million innocent people. The House of Lords had ruled that the blanket retention of DNA did not interfere with the right to respect for private life. The Strasbourg court ruled that it did. The government is now correcting this serious infringement.
This particular proposal in the declaration is an unnecessary and flawed idea that plays to the myths of Strasbourg's supposed activism and interference. We need to maintain the right of individuals across Europe to apply to the Strasbourg court, and it should be that court which decides the cases it needs to review. It is imperative that this idea, which threatens the system of human rights protection in Europe, is exposed for what it is – an attempt to say to Strasbourg: "Hands off the UK."
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