Strasbourg Court Flouting Democratic Self-Government
Lib Dem peer joins Tory MP in call to avert ‘collision’ between Parliament and Human Rights Court
Following Parliament’s rejection of votes for prisoners, a new Civitas report calls for urgent reform of human rights legislation to keep European judges from deciding British law.
Strasbourg in the Dock, by international lawyer and Conservative MP Dominic Raab, argues that judges have gone beyond their legitimate powers of interpretation in their now infamous Hirst ruling. He finds some of the European judges are ‘woefully lacking in experience’ and, as a consequence, ‘are undermining the credibility and value of the Court’. [pp. 43-44]
A coup for ‘naked usurpation’
Instead of sticking to the definitions of human rights, as agreed in the First Protocol to the European Convention in 1952, the Strasbourg Court has established a new right for prisoners to vote. As a result, the Court is no longer following the law agreed by member states of the Council of Europe. It is also making it. Democratic policy-making increasingly stands at the mercy of unelected judges who are asserting a single, brittle law for the whole of Europe on a broad range of issues. Raab explains:
‘The judges have assumed a legislative function, fully aware that there are limited means for elected governments subject to their rulings to exercise any meaningful democratic oversight over them. This judicial coup represents a naked usurpation, by a judicial body, of the legislative power that properly belongs to democratically-elected law makers.’ [p. 9]
Lord Carlile comments in the foreword to the report:
‘[T]he Court of Human Rights has set itself on a collision course with our own jurisdiction, and with Parliament.’ [p. xii]
Raab explains how the Hirst ruling is one of a growing number of perverse decisions by the Strasbourg Court and other courts acting under the aegis of human rights. Combined, they have ensured that criminals can draw on society’s resources, as if they were limitless, even to protect them from their ex-associates:
‘…an increasing amount of police time is diverted to provide witness protection to gangsters giving evidence in mafia trials – in effect protecting gangsters from the risks they pose to each other’. [p. 12]
Security for all, regardless of past misdeeds, is a desirable goal. But Raab reveals the problem with turning all possible desirable policy ends into enforceable ‘human rights’. It means that scarce resources have to be devoted equally to the deserving and undeserving alike, with serious criminals, who have violated the rights of others, often being the first to demand that the state come to their aid at all costs:
‘Human rights are universal, so the police must offer the same level of police protection to innocent members of the public as to the worst criminals.’ [p. 12]
No deportation means greater threat to public safety
Foreign nationals convicted of serious crimes, including homicide offences, have avoided deportation by merely asserting their right to family life. Raab commented:
‘The massive expansion of human rights law threatens to frustrate Britain’s ability to deport convicted criminals and terrorist suspects. The goal-posts keep shifting, because of unaccountable judicial legislation – especially the expansion of claims around the right to family life.’
Raab argues that human rights decisions have not weighed the rights of the community, and other individuals, to be protected proportionately with the rights of convicted criminals and others who intend to cause harm to society. This has had particularly damaging implications in the area of counter-terrorism:
‘Britain has lost a degree of control over its borders, which inevitably means we are importing more risk… [T]his has contributed to the growing terrorist threat and pressure on MI5 and counter-terrorism police.’ [p. 18]
This has a knock-on effect on traditional British liberties. With the possibility to deport dangerous foreign nationals reduced, the Government has been restricted to chipping away at hard-won rights, such as restrictions on detention without charge, which are not valued as highly in European jurisprudence:
‘The last government responded… with a series of draconian measures, from Control Orders to proposals to increase detention without charge. Ironically, the expansion of human rights to defeat deportation proceedings has imposed additional pressures on traditional British liberties, including the ancient right of habeas corpus.’ [p. 18]
Lord Carlile comments on the threat to the public:
‘A narrow interpretation of the Convention has had a chilling effect on deportation, and thereby on public safety.’ [p. xii]
Not exactly King Solomon – not even Judge Judy
Strasbourg’s perverse rulings can be attributed partly to the quality of judges appointed to the court. Reviewing the bench, Raab finds that a remarkable number of judges had no judicial experience before their appointment:
‘[I]n 2007, only 20 of the 45 European judges had any prior judicial experience before joining the Strasbourg bench. By 2011, the judicial calibre had not improved much: 23 out of 47 of the judges had prior judicial experience.’ [p. 42-43]
He notes that ‘the judge for San Marino… only completed her training as a lawyer in 2002’ [p. 43] and that some judges come from member states with poor institutional respect for human rights. Some have little understanding of the rule of law in more advanced democracies. As a result, rather than a court of experienced jurists engaging in sophisticated deliberation, Strasbourg also includes a range of unqualified judges who owe their position to political influence and diplomatic lobbying.
Justice on a waiting list
The report also notes another damaging consequence of expanding human rights law to micromanage vast areas of governmental activity. The European Court cannot cope with the volume of applications coming before it, with six times as many cases in 2010 as 2000:
‘The backlog of cases at the start of 2011 had reached almost 140,000 cases.’ [p. 41]
Strasbourg can safely be ignored
Raab suggests a platform of reform to reinforce the overwhelming cross-party vote against prisoner votes. He notes that there are no real practical consequences for refusing to implement a European Court decision on democratic grounds. In fact, Britain is hardly the worst ‘offender’ in choosing to defy the Court on occasion:
‘As of 2009, there were 8,661 cases “pending” before the Committee of Ministers – i.e. unimplemented judgments. Eighty-eight per cent of the total number of unimplemented rulings affect the following state parties, in order of non-compliance: Italy, Turkey, Russia, Poland, Ukraine, Romania, Greece, Bulgaria, Slovenia and Hungary. Britain has 27 cases pending, less than one per cent of the total and three more than Germany.’ [p. 28]
As a result, ‘[T]here is no practical risk that Britain would be suspended from the Council of Europe for failure to adhere to the Hirst ruling.’ [p. 28]
To halt the European judges’ imperial march, the report proposes:
Amending the Human Rights Act 1998, in order to:
- Enshrine Free Votes on Strasbourg Rulings: by amending the Human Rights Act to ensure that adverse Strasbourg rulings against the UK are subject to a debate in the House of Commons, coupled by a political commitment by the main parties to permit ‘free votes’.
- Strengthen the Independence of the Supreme Court: by amending Section 2 of the Human Rights Act to check the wholesale importation of the Strasbourg case-law into the UK, strengthen respect for the common law and guarantee that the Supreme Court has the last word on the interpretation of ECHR rights as the UK’s final court of appeal.
- Defend the Will of Parliament: by amending Section 3 of the Human Rights Act, to prevent the courts from re-writing the express terms of legislation in order to pre-emptively avoid any inconsistency with the ECHR, where doing so would undermine the ‘object and purpose’ of the legislation according to the intentions of Parliament at the time of enactment. Section 6 should also be amended to prevent the courts from striking down the decisions of public bodies, where it would undermine the ‘object and purpose’ of the authorising legislation according to the intentions of Parliament at the time of enactment.
- Remove fetters on Deportation: by amending the UK Borders Act 2007, deleting Section 33(2) to remove the express human rights exception and make a distinction between the bar on deportation to face torture or death and the bar on deportation that disrupts family life. This clause should be replaced by a specific regime for handling claims that a deportee may be tortured or killed on return home. In addition, the UK should avail itself of the ‘margin of appreciation’ to facilitate automatic deportation under the UK Borders Act 2007 for criminals convicted of serious offences and terrorist suspects, irrespective of claims that deportation would disrupt their family ties.
Pursuing reform of the Strasbourg Court with the UK’s European partners, through an amending Protocol that would:
- Amend the Convention Regime for Deportation: to create a specific regime to cover deportation, that reflects the distinctions drawn by the United Nations Convention Against Torture 1984. The UN Convention bars deportation to face torture but not lesser forms of mistreatment. The amendments should also clarify and confirm the express intention of the architects of the ECHR, that deportation on security or law enforcement grounds is not barred by claims of the right to family life under Article 8 of the ECHR.
- Focus Strasbourg on the most serious Human Rights abuses: by setting criteria whereby the Strasbourg Court only intervenes to hear claims that amount to the most serious or systemic violations of rights under the ECHR.
- Introduce Judicial Quality Control: by tightening the procedure and criteria for judicial nomination and appointment, and increasing transparency and accountability over the process.
Avoiding the ‘triplication’ of judicial legislation through developments at the EU, and in particular:
- Ensure EU Accession to the ECHR does not increase the Liabilities of the British Taxpayer, by refusing to agree the terms of accession without further guarantees that it will not give the European Court of Justice in Luxembourg jurisdiction over the application of human rights in or by the UK.
For more information contact:
Dominic Raab on 020 7799 6677
Dr David Green (Director) on 020 7799 6677
Notes for Editors
i. Dominic Raab is the MP for Esher and Walton, elected in May 2010, and sits on the Joint Committee on Human Rights. He started his career as an international lawyer at Linklaters, worked on secondment at Liberty, and advised as an international lawyer at the Foreign & Commonwealth Office from 2000 to 2006.
ii. Lord Carlile of Berriew QC is a Liberal Democrat member of the House of Lords, a practising barrister and the Government’s independent reviewer of anti-terrorism legislation.
iii. Strasbourg in the Dock: Prisoner voting, human rights & the case for democracy (RRP: £6.00) is available from the Civitas website or by calling 020 77996677. It is also available from Amazon, and on Amazon Kindle (priced £3).
iv. Civitas is an independent social policy think tank. It has no links to any political party and its research programme receives no state funding.