Judicial dialogue? Straw and Bratza deliver choice words on Strasbourg
It is time for the European court of human rights to "pull back from the jurisdictional expansion it has made in recent decades", said Jack Straw on Tuesday evening. "Otherwise, Strasbourg will be the architect of its own demise."
The former lord chancellor was delivering the second in his series of three Hamlyn lectures. But, even as he was speaking, Sir Nicolas Bratza, who retired as president of the European court at the end of last month, was offering a few choice words of his own.
Neither man knew what the other was going to say. While Straw was lecturing at the University of Exeter, Bratza was speaking in Lincoln's Inn at a dinner in his honour given by the Human Rights Lawyers' Association. The evening, which included a Mozart duo performed by the Razumovsky Ensemble that left Bratza "moved beyond words", was sponsored by Blackstone Chambers and Linklaters.
Straw has no problem with the Human Rights Act 1998, which he saw through parliament and regards as a success. His concern is over the way in which the human rights convention has been interpreted by the Strasbourg court. Although the UK knew what it was signing up to when it joined the EU, he maintained, nobody realised when we ratified the human rights convention that we were accepting the jurisdiction of a court with an "ever-widening mandate to determine what shall constitute human rights".
There was bound to be a conflict at some stage between this increasing jurisdiction and the "will of the people of member states", Straw said. That conflict turned out to be over the court's rulings that a blanket ban on votes for convicted prisoners amounted to a breach of their rights.
According to Straw, Bratza had said it was "damaging that a country as important as the UK has not complied with a court judgment yet". Straw disagreed: "I'm afraid that I see it as damaging that this court should seek to tell my constituents what to think, when they have no opportunity to agree or to decline that invitation." He predicted that Strasbourg would be the loser if it continued in its present approach.
The irony, of course, is that it is Bratza who has done more than most to soften that approach. I gave an example here last week of a case where the British judge would have allowed the UK greater discretion.
Welcoming him home after more than 40 years as an advocate and then a judge in Strasbourg, the retired appeal judge Sir Stephen Sedley said Bratza had recognised that the court should not be "micro-managing the implementation of convention rights" in member states.
His presidency had moved the court "beyond the basic concept of the margin of appreciation towards the more profound and principled concept of subsidiarity". Sedley gave examples of cases which Strasbourg had recognised that national courts had done as much as should be asked of them and had stopped short of retaking decisions as if it had been a national court itself.
Looking back over his career in Strasbourg, Bratza said he was not going to pretend his year as president had been an easy one. Among the court's "alarming number of pending cases", some 40,000 were repetitive — "that is, cases deriving from a systemic problem within the state concerned which, for want of money, or political will, or both, the state has done nothing to remedy".
He went on: "The year has also one of a crescendo of criticism of the court from many quarters in the United Kingdom, in which it has been accused of inefficiency, incompetence and meddling in affairs for which it was not created."
Bratza had three points to make in response.
What next for Bratza, now 67? On returning to London, he retired from his post as an English high court judge. He is eminently qualified for appointment to the UK supreme court but is too modest to put himself forward. Bratza could make an immensely valuable contribution to the work of the UK's highest court, not least in reducing the risk that its future judgments will be overturned in Strasbourg. Someone there should have a word in his ear.
The former lord chancellor was delivering the second in his series of three Hamlyn lectures. But, even as he was speaking, Sir Nicolas Bratza, who retired as president of the European court at the end of last month, was offering a few choice words of his own.
Neither man knew what the other was going to say. While Straw was lecturing at the University of Exeter, Bratza was speaking in Lincoln's Inn at a dinner in his honour given by the Human Rights Lawyers' Association. The evening, which included a Mozart duo performed by the Razumovsky Ensemble that left Bratza "moved beyond words", was sponsored by Blackstone Chambers and Linklaters.
Straw has no problem with the Human Rights Act 1998, which he saw through parliament and regards as a success. His concern is over the way in which the human rights convention has been interpreted by the Strasbourg court. Although the UK knew what it was signing up to when it joined the EU, he maintained, nobody realised when we ratified the human rights convention that we were accepting the jurisdiction of a court with an "ever-widening mandate to determine what shall constitute human rights".
There was bound to be a conflict at some stage between this increasing jurisdiction and the "will of the people of member states", Straw said. That conflict turned out to be over the court's rulings that a blanket ban on votes for convicted prisoners amounted to a breach of their rights.
According to Straw, Bratza had said it was "damaging that a country as important as the UK has not complied with a court judgment yet". Straw disagreed: "I'm afraid that I see it as damaging that this court should seek to tell my constituents what to think, when they have no opportunity to agree or to decline that invitation." He predicted that Strasbourg would be the loser if it continued in its present approach.
The irony, of course, is that it is Bratza who has done more than most to soften that approach. I gave an example here last week of a case where the British judge would have allowed the UK greater discretion.
Welcoming him home after more than 40 years as an advocate and then a judge in Strasbourg, the retired appeal judge Sir Stephen Sedley said Bratza had recognised that the court should not be "micro-managing the implementation of convention rights" in member states.
His presidency had moved the court "beyond the basic concept of the margin of appreciation towards the more profound and principled concept of subsidiarity". Sedley gave examples of cases which Strasbourg had recognised that national courts had done as much as should be asked of them and had stopped short of retaking decisions as if it had been a national court itself.
Looking back over his career in Strasbourg, Bratza said he was not going to pretend his year as president had been an easy one. Among the court's "alarming number of pending cases", some 40,000 were repetitive — "that is, cases deriving from a systemic problem within the state concerned which, for want of money, or political will, or both, the state has done nothing to remedy".
He went on: "The year has also one of a crescendo of criticism of the court from many quarters in the United Kingdom, in which it has been accused of inefficiency, incompetence and meddling in affairs for which it was not created."
Bratza had three points to make in response.
First, the Strasbourg court is not a foreign court, as it has been frequently characterised by senior members of the government. It is an international court, in a system in which the UK has, from the outset played, and continues to play, an important role; and in which a UK judge sits in all cases of substance against his country.But Bratza devoted most of his speech, which is not available in written form, to the achievements of the court and those who worked for it. References to his fact-finding missions to Turkey in the mid-1990s reminded those present that there are rather graver abuses of human rights than being deprived of a vote while in prison.
Secondly, abiding by judgments of the court with which there is disagreement is not a matter of discretion. It's a matter of legal obligation, imposed by the convention itself to which the UK voluntarily signed up. To disregard judgments is to fly in the face of the rule of law, which applies as much in the international as in the national context.
Thirdly, the negative attitude to the court, and the hostile language in which it is frequently expressed, not only does damage to the authority of the court within the UK, it also regrettably does damage to the standing of the UK within the international community.
What next for Bratza, now 67? On returning to London, he retired from his post as an English high court judge. He is eminently qualified for appointment to the UK supreme court but is too modest to put himself forward. Bratza could make an immensely valuable contribution to the work of the UK's highest court, not least in reducing the risk that its future judgments will be overturned in Strasbourg. Someone there should have a word in his ear.
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