Don't believe the myth: Strasbourg is doing a good job
As Europe's diplomats prepare to gather in Brighton to discuss a British paper on the future of the European Court of Human Rights, the Daily Mail that 75 per cent of Britons think human rights are a "charter for criminals". Government supporters cite this statistic, which comes from a Policy Exchange/YouGov poll, as support for the UK to argue for restricting the role of the court. The Mail also refers to a published today which concludes that human rights and by extension, the European Convention, suffers 'a permanent crisis of democratic legitimacy'.
Civil society organisations, national and international, fear that UK proposals to neuter the court are designed to turn the European Court of Human Rights from a strong, independent and successful supervisory mechanism to a toothless advisor. So we can expect vigorous discussion.
Does this picture of a political punch-up at the end of the pier offer any useful insight into the important international dialogue due to take place over the next three days?
Unsurprisingly, it doesn't. The Policy Exchange figures appear methodologically suspect. The answers were obtained by asking 2000 people whether they agreed that human rights have become a charter for criminals and the undeserving. That is a question that suggests its own answer. In court, it would be called 'leading'. Contrast this with the results of other research which asks what people think about rights themselves and a very different set of figures emerge: over 90% support for a law protecting individual rights; the vital right to privacy and family life, fair trial and freedom from torture, ). These figures say nothing about why the future of the European system should be determined by popular opinion in the UK.
The Convention was established as a bulwark against abuse of individual rights in the aftermath of the second world war. The court remains a major lever for change in some of the worst offending states, highlighting serious systemic problems and putting pressure on individual states to improve national practices. The court's show that six states account for more than two-thirds of the court's docket (Russia, Turkey, Italy and Romania, Ukraine and Serbia). A group of more than 60 civil society organisations, including from some of those states, have publicly called for reflection before further changes to the court are made.
By contrast, the majority of cases brought against the UK are deemed inadmissible. Even in the UK, our courts have got it wrong. Strasbourg decisions have led to reform in state phone-tapping; stop and search; the management of the national DNA database; the ability of children in care to
discover their family history and the right to a remedy for families negligently separated by social services. These are a handful of examples. The Equality and Human Rights Commission will publish a fuller report on the Court's impact in the UK later this week.
The "crisis" of democratic legitimacy of rights has dominated the polarised political debate in the UK since the last election. However, the fact that today's report on enhancing the responsibility of the parliaments in securing domestic, regional and international standards is cited in favour of less protection for rights is ironic. It recognises the risk of democratic bodies being seen to be sidelined, discusses the value that can be added to rights protection by improved parliamentary scrutiny and explores improvements in parliamentary practice to integrate commitment to human rights standards into their work. Its commendable premise is that while independent courts are essential, the burden for making rights real is shared by governments, courts and parliaments alike.
Civil society has not buried its head in the sand. The court has been under significant pressure for the past decade. As Europe has expanded, so has its case law, with no matching increase in its resources or capability to process its work. At the end of 2011, it faced a backlog of around 150,000 - albeit mostly inadmissible - claims.
is the third in a series of conferences on the court's future. It follows previous conferences at Interlaken and Izmir. These planned a twin track approach between 2010-2015 – improving the efficiency of the court and strengthening the commitment of states to improve practice at home by recruiting authorities, courts and national parliaments in diverting cases from the court, by getting it right first time.
The court has kept its side of the bargain. Efficiency measures – including renewed prioritisation and a more ruthless approach to kicking out cases – will see the backlog clear by 2015. It hands down around 2000 judgments a year from 47 states, covering around 800 million people, on a budget of around £50m. Compared with the budget of the UK supreme court (£12m) with its far narrower jurisdiction, and the Court of Justice of the European Union (£300m) its growing efficiency is admirable.
By contrast, states' work to meet their commitments is still unclear. Even more worrying is the fact that David Cameron cites the work of the commission on a bill of rights – against the backdrop of the Conservatives' commitment to repeal the Human Rights Act 1998 - as evidence of the UK's commitment to do more.
The UK's original draft declaration for the Brighton declaration, its shopping list for reform, raised serious concern. The proposals to build on commitments to better national practice were welcome, including measures for increased responsibility for national parliaments and improved sanctions against states that ignored the judgments of the European court. However, the draft incorporated three UK measures which appeared to be designed to neuter the court's role, changing it irreparably from a supervisory to an advisory mechanism. Non-binding advice would oust the right of an individual to claim; cases where domestic courts had not "clearly erred" would be out of bounds and judicial principles granting states discretion in their interpretation of the convention would be set in stone. The British president of the court has said that these are unnecessary and a number of countries clearly gave them a cool reception.
The confirms that the UK approach has been controversial. Both positive developments on national practice and the UK's centrepiece cuts to the court have been subject to significant compromise. However, the fundamentals of the UK proposals remain: the convention amended to codify two of a panoply of judicial principles, but those which proffer most deference to national decision-making. The impact of this remains to be seen. If the court's approach to its supervisory role were altered in the long term, it would be extremely damaging. A proposal to restrict the deadline for applications from four to six months remains: innocuous to those of us with easy access to legal advice and technology and open and transparent courts, potentially devastating for applicants who don't.
We don't know what exactly will be on the table at Brighton. It is understood that negotiations are continuing today. The final agreement will be under wraps till Friday. If the UK ultimately sacrifices a commitment to raising domestic standards in favour of bashing the court, there will be no winners in this pseudo-fight. The losers will be the people of Europe.