Thursday, 19 April 2012

An update on the Brighton Declaration (ECtHR Reform)

So it is said that an agreement has now been reached at the Brighton Conference as to the nature of reforms going forward, and the word seems to be that it is good. Of course when both "sides" claim victory it is also worth looking at exactly who has won or loss.

For an analysis of the original text, severely detrimental to the accessibility of the European Court of Human Rights (ECtHR), read my post on the Brighton Declaration to reform the ECtHR from yesterday.

So what has changed? Reports are that the various issues that would hamper the court's ability to take on legitimate cases, have all been watered down in some way. No longer will it be part of the European Convention on Human Rights (ECHR) that judges must consider a state's desire to bend the rules as a priority, nor that cases involving advice from the ECtHR would mean the victim would be unable to take their case to the court.

It also retains the safeguard against denial of justice, regardless of level of damage, by retaining the right of those who deserve justice to seek it. Unfortunately it does sound like the timelimit for bringing a case has been reduced, but not to the lower levels that were put on the table.

So how is it then that Ken Clarke can say the following?(1)

"These reforms represent a substantial package and are a significant step towards realising the goals that the prime minister set out in Strasbourg,"

In my view it is bluster, all for show. The Tories talked big leading in to this conference...the idea was that the ECtHR would be brought to heel and the UK would lead a revolution that saw nation's in greater control of interpretation of human rights law, indeed one blogger suggests this is the real reason for the changes, to pave the way to abandon the Human Rights Act (HRA) in favour of Bill of Rights(2) that would be less compatible with the ECHR.

The reality seems to be that Ken Clarke is actually putting forward a few half truths, or information without context, to sell a Tory win where there has in fact been a defeat. Take the following statements:

Ken Clarke has brushed aside judicial opposition to the UK's proposals for reforming the European Court of Human Rights, claiming that the "Brighton declaration" by 47 member countries would result in fewer cases being appealed to Strasbourg.

Since the reports are that the declaration doesn't restrict any individual from taking a case to the ECtHR than they can currently, there is nothing that this declaration will do to help reduce cases taken to Europe. It may be the case that national reforms to be more proactive in correcting human rights abuses may help reduce the incidence of appeals, but this was already agreed in previous conferences on the issue of ECtHR reform, not this one.

Dismissing criticism by the British judge Sir Nicolas Bratza – the court's president – the justice secretary insisted the declaration would speed up the process of tackling the backlog of more than 150,000 cases waiting to be heard.

Given that the reports are that there are no changes to the admissibility of cases to the court, this opinion appears to be entirely unfounded. The only thing that will speed up the backlog is more resources, and more staff, to go through the initial stage of verifying the admissibility of individual cases. It would seem nothing in the declaration improves this.

"These reforms represent a substantial package and are a significant step towards realising the goals that the prime minister set out in Strasbourg,"

Woolly language. "Substantial"? I suppose you can define a document that is longer than two sides of A4 as substantial. "significant step"? Most of the things included in the declaration do nothing but reiterate and slightly improve the decisions of previous conferences on ECtHR reform. A step has been made, perhaps...but a significant one?

The Prime Minister set out that he wanted to bring more power back to the UK, this declaration would seem to do nothing of the sort, with individuals just as free as they were to take cases to the ECtHR, and the ECtHR no less able to take those cases on if it see's that it must. That's a missed goal for sure.

"Those [cases] that [the court] considers should be allegations of serious violations or major points of interpretation of the convention and will be processed without the scandalous delays we are seeing at present.

This is already underway, part of reforms that the court has undertaken to prioritise important cases in ways that it never needed to while caseloads were smaller. This Brighton conference hasn't made this happen, and Ken Clarke is simply claiming credit for something that he and the Tories know is already happening, but perhaps the public does not.

[Sir Nicola Bratza] said the court already had the power to dismiss cases that had been properly considered by national courts and was using it to clear a backlog of 150,000 cases.

But Mr Clarke said: "I'm not wholly convinced of that. It might have taken place anyway, but it might have taken many, many years. I won't accuse him of complacency but I am a little less relaxed than Sir Nicolas about the progress being made before the Brighton declaration."(3)

Setting himself up for a win-win, Mr Clarke first acknowledges that the court is reforming and claims they can reduce the backlog significantly by 2015 without further interference(4). Then he states that he's "not wholly convinced" that these experts are telling the truth, meaning that if the court does reduce the backlog, doing so without needing any of the "reforms" set out in Brighton, he can claim in the run up to a General Election in 2015 that the Tories were the party that cleaned up the ECtHR.

"State parties have a duty to make sure the court operates efficiently. Trying to deal with that is not, in my opinion, threatening the independence of the court in the slightest."

Making sure the court operates efficiently is one thing, restricting access to the court in order to do so, in ways that could be argued as allowing national ideology to trump objective analysis of breaches, is quite another. The charge that this declaration was originally intended to threaten the independence of the court WAS true, before the declaration was amended, as it tied the court's hands by having to defer to judgements made *beneath* it.

Once the highest court in our legal system is duty bound to not hear cases based on the *opinions* of law makers at a national level, opinions that may differ nation to nation, it has indeed lost a part of it's independence.

Finally, this is not a quote from Ken Clarke, as far as I can tell, but it is a fact that has clearly been circulated to go along with his statement...

The Strasbourg-based court is still receiving 3,000 admissible cases every year, despite the fact it can only handle around 2,000.

The unspoken content in this statement is precisely what has led me to write about this. If it is a reality that there are more cases than judges can deal with, how is the proper, fair and democratic solution to try and find a way of making a third of all LEGITIMATE appeals inadmissible? As time goes on, if (hopefully not) there are serious injustices that spring up from civil unrest in newer EU states, as more states are included under the jurisdiction of the ECtHR, this number could increase from 3,000, easily.

How can it be an answer that as more cases come to the court, that our efforts should be to restrict harder and stronger?

Those that have successfully started the reforms of the ECtHR, that are responsible for guiding the ongoing reform, already have the right idea... pools of reserve judges for periods of time where caseloads get too high, or more judges deployed in a different structure to operate more quickly to free up time for considering more serious cases. I say it's the right idea as they are taking the problem as "How do we ensure we can service as many cases as are admitted to the court every year", as opposed to Ken Clark and the Tories who see the problem as "How can we make it automatically impossible for more people with concerns about their human rights to have their case heard to maintain the current capacity".

The first stance, by the expert committee and those studying possible systematic reforms, is one of evolving the system to cope with the needs of providing justice to individuals in the EU. The second stance, by Mr Clarke, is of constraining the system more and more to restrict avenues of justice to cope with financial ease and the ideological desires of each member state. It is extremely welcome to hear that so many have stood up to pursue that first stance, rather than the destructive goals of the Tories and their original plans.

The reality after all this (largely) waste of time is that we didn't need to sit officials from all EU states in a room to do what is necessary to close more cases in the UK rather than in Strasbourg. How? By being better at not breaching people's rights, being more open to adapting practices to avoid breaching people's rights, and to stop giving rulings that are based on law that isn't compatible with the ECHR. Do this, and the ECtHR already has every power to strike out hearing applications as inadmissable on the basis of being "manifestly ill-founded"

References:

1. The Guardian, 19/04/2012
2. UK Constitutional Law Group Blog, 05/03/2012
3. Telegraph and Argus, 19/04/2012
4. Steering Committee For Human Rights - 27/01/2012