Monday 7 February 2011

Five myths about the European court of human rights

The row over giving prisoners the right to vote has revived many scare stories – but what is the truth about the ECHR?
Jean Paul Costa, president of the European court of human rights
Jean Paul Costa, president of the European court of human rights, emphasises that states have some latitude to interpret judgments on their own terms. Photograph: Vincent Kessler/Reuters/Corbis
In the midst of the row over giving prisoners the right to vote, the thinktank Policy Exchange has called for the government to withdrawfrom the European convention on human rights if negotiations to limit and reform the European court fail. The ensuing debate has led to various myths about the court being recycled. Here are five.

Myth one: the court is another "European" institution interfering with the UK's sovereignty

Sixty years since the UK signed up to the European convention on human rights, most people still have no idea what it is. It has nothing to do with the EU. It is not a vehicle of European integration. It is a human rights treaty that the UK and other European countries spearheaded after the second world war, in an attempt to prevent the kind of atrocities that happened during the war ever being repeated in Europe. One of the things that makes the convention more effective than other international treaties is the fact that it has a court. Without one, the rights it sets out would be aspirational, rather than legally binding protection for people in European countries. The UK exercised its sovereignty by becoming party to the convention in the first place, and deciding that the court should have the power to deliver rulings which UK governments would respect.

Myth two: the court is incompetent

An increasingly popular myth in recent times, most prevalent when the court delivers a judgment people don't like. Instead of accepting unpalatable rulings about UK law, the tendency is to attack the institution instead. Lord Hoffmann accelerated this trend in 2009, attacking the court in a speech and claiming it had "been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states". At the heart of this view is a distrust of the civil law jurisdictions of other European countries, and a view that the UK, with its common law adversarial system, must jealously guard against European ways of doing things being imposed on domestic law. It is true that adversarial proceedings (unlike the inquisitorial system in the rest of Europe) has its own complexity, but inbuilt into the UK's relationship with the court is the ability to depart from Strasbourg judgments, as it did in the case of Horncastle in 2009.
There have been less sophisticated attacks on the judges themselves, coming as they do from small countries with less impressive judicial histories than the UK. But the whole point of having a Europe-wide human rights institution is to bring all its members in with the common purpose of providing their residents with protection from human rights abuses. Inevitably, the less robust a country's judicial history, the more important this safeguard is. There may be judges on the court who are less impressive than others, but that would make it the same as any court within the UK, where the quality of judges varies unavoidably. The way to improve this is by scrutinising the selection process, not by attacking the institution itself.

Myth three: the court is micromanaging the UK's legal system

The crux of this criticism is that the court is interfering with the UK's "margin of appreciation" – the latitude that governments should be given to interpret the court's rulings for itself. But the current controversy about prisoners voting shows that this is a red herring – it is not the manner in which the government implements the court's ruling and allows prisoners the vote that is proving controversial. It is the simple fact that the UK is having to change the law, no matter how much discretion they are given to do it, that is so unpopular with politicians.
When I asked the current president of the court – Jean Paul Costa – about this, he emphasised how seriously the court takes its duty to leave states with a margin of appreciation to implement judgments on their own terms. The UK government has benefited from this margin of appreciation in the way it has dealt with two of the most controversial of the court's recent judgements – the decision on the DNA database in 2008, and the ongoing saga about prisoners voting. The court declared that UK law was incompatible with the convention. But the detail of legislation to remedy the problem has been very much within the control of parliament (hence the delay in implementing it).

Myth four: the court's caseload is a problem

This is actually largely true. Last time I checked the backlog was 120,000 cases, a workload that would take three years to clear, were it not for the fact that thousands of new cases are still pouring in by the week. This problem is caused in large part by the fact that hundreds of people in former Soviet countries are using the court as a first port of call for human rights abuses, instead of an avenue of last resort, as it is meant to be. There is some hope that a protocol agreed last year will lead to a speedier way of doing things, although its benefits are yet to be seen.

Myth five: the UK should not accept judgments from the court with which it does not agree

This is by far the most irritating aspect of European court of human rights-bashing. If the court only delivered judgments with which countries agreed, there would be no point in its existence. The court's purpose is to bring states in line with human rights standards when they err – by design coming into conflict with a government's intended way of doing things. As those who created this system after the second world war realised much more acutely, the irritance of states when judgments don't go their way is a far lesser evil than the alternative – the ability to pick and choose when human rights apply.

Afua Hirsch

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