Posts Tagged ‘European convention on human rights’
Protocol 15 of the European Convention on Human Rights and Fundamental Freedoms – reforming the European Court on Human rights
There is widespread agreement that the European Convention on Human Rights in 1953 was an extremely important development arising out of the horrors of the Second World War. The Convention sought to identify the fundamental human rights which should be protected. The European Court of Human Rights was created to enable both states and individuals to bring cases in which alleged breaches of the Convention could be challenged and adjudicated.
Over the years, the number of states who are members of the Council of Europe has expanded. As more countries have come within the jurisdiction of the court, the numbers of cases coming to the court have increased. This has led to serious problems of delay.
A decade ago, the Court itself made suggestions to improve the ways in which the court works. These were supported in 2012 in the so-called Brighton Declaration. On 1 August 2021, the final results of the work which derived from the Brighton Declaration came into effect, as the last of the 47 countries who are members of the Council ratified Protocol 15.
The primary focus of the Protocol is to devise ways to divert cases from the court which could be dealt with elsewhere. Protocol 15 starts by including the principles of ‘subsidiarity’ and ‘margin of appreciation’ into the text of the Convention.
‘Subsidiarity’ implies that the primary responsibility for ensuring compliance with the Convention should rest with individual states – the Convention and the Court should be subsidiary to the laws and procedures of member states.
The ‘margin of appreciation’ is a doctrine developed by the Court itself which accepts that individual states are on the whole best placed to decide questions relating to Human Rights. The role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.
The hope is that these changes in the text will encourage individual states to do more, thus reducing pressure on the European Court.
Second, there have been a couple of changes to the rules relating to the admissability of cases which can be brought to the Court. First, any case must henceforth be brought within 4 months from the decision appealed against, rather than the 6 month limit that existed before. In addition, there are detailed rules designed to enable the court to rule as inadmissable cases which have no merit or which have already been decided.
A third change relates to the appointment of judges to the European Court. Until the changes were made, judges were required to stand down when they reached the age of 70. This rule has been replaced by a rule required judges to be appointed before they are 65. This is designed to enable them to complete a full 9 year term – the standard for such appoiontments. It is hoped that this will reduce the turnover of judges and enable the court to retain judicial expertise for longer.
Will these changes make a difference? My own hunch is that they may have a marginal impact but that problems of delay in getting cases before the court will remain.
Further detail is available at https://www.gov.uk/government/news/european-convention-on-human-rights-protocol-comes-into-force. The full text of the amended convention is at https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c where you can click on the link to Protocol 15 and the explanatory memorandum for more information.
Independent Human Rights Act Review: an update
The review of the Human Rights Act, chaired by Sir Peter Gross, has completed the first stage of its work, namely the receipt of written evidence, addressing the issues raised for consultation by the review team. Over 150 papers were received in total/
The submissions have recently been made publicly available.
The review is in the process of holding a number of public roadshows – to be hosted by six different law schools around the country. These are scheduled to take place during May 2021.
For links to the submissions and information about the roadshows go to https://www.gov.uk/guidance/independent-human-rights-act-review
Review of the Human Rights Act 1998: latest news
Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.
Evidence is sought on two specific issues:
The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.
The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.
The time for responding is short. Submissions have to be in by 7 March 2021.
The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.
Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents
Responding to Human Rights Judgments: 2019 to 2020 – new report
Just a few days ago (18 December 2020) I noted the establishment of the Independent Review of the Human Rights Act 1998, to be chaired by Sir Peter Gross. One of the documents the review will, have to consider is the latest report by the Government to the Joint Committee (of the House of Lords and the House of Commons) on how it has been responding to judgements of the European Court of Human Rights (ECtHR). Despite its title, it covers a longer period than 2019-2020. Indeed, it provides important background on how the European Convention on Human Rights impacts on the UK.
What strikes me is, that while there have undoubtedly been a small number of controversial cases that have gone to the ECtHR over the last 20 years, the overall impact has been much more limited than many of the stories in the print media might suggest.
It is striking to see that the numbers of cases against the UK Government is actually very small – and many of the cases started are dismissed as disclosing no cause of action.
In the small number of cases which go against the UK Government, the outcomes of the Court seem to me sensible and balanced. (The low numbers may reflect the fact that, as a result of the enactment of the Human Rights Act 1998, it is easier to argue Convention issues in the UK courts than it used to be.)
Even where cases are taken in the UK Courts, the numbers of declarations of incompatibility made by the UK courts are also very small, and most being dealt with by changes to regulations rather than major legislative changes.
The report is available at https://www.gov.uk/government/publications/responding-to-human-rights-judgments-2019-to-2020
Review of the Human Rights Act 1998
In its Election Manifesto for 2019 the Conservative Party announced that it wished to review the operation of the Human Rights Act 1998.
For a number of years, some politicians had been argung for a repeal of the act and its possible replacement with a ‘British Bill of Rights’. That idea never gained broad political support and seems to have fallen away. Certainly the announcement, on December 7 2020, of the current review states, in terms, that the Government remains committed to the European Convention on Human Rights.
According to the official announcement, the new review – chaired by retired Court of Appeal judge, Sir Peter Gross – has the following tasks. It will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
- The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.
The review is stated to be limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.
The announcement of the review also says that the new review ‘runs alongside’ the independent review of Judicial Review and ‘is part of the government’s work to deliver the commitment in the Manifesto to look at the broader aspects of the constitution and the relationship between the Government, Parliament and the courts’.
It seems that these 2 reviews, taken with ‘others to be announced in due course’ will deliver the ‘Commission on Constitution, Democracy, and Rights’ which the Government said it wished to establish. It is not at all clear whether there will be a separate Commission, or whether these separate reviews will, in some way, be welded together into some kind of final statement of policy. I would have thought that a distinct Commission would be essential to ensure that the outcomes from specific reviews were coherent.
The announcement of the HRA review is at https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act
I noted the review of judicial review at https://martinpartington.com/2020/08/07/independent-review-of-administrative-law/. See also https://martinpartington.com/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/
Prisoners’ voting rights: recent developments
For over a decade there has been a stand-off between the UK Government and the European Court of Human Rights on the question of whether prisoners should have a right to vote. The law in the UK is that they should not. The European Court of Human Rights took the view that a blanket ban was a denial of the right to vote provided for in the European Convention on Human Rights.
The Coalition Government got as far as publishing a draft Bill setting out a number of options for resolving the impasse (which included doing nothing) in 2013. I noted this in this blog in August 2014. Since then the issue has gone very quiet.
It appears that towards the end of 2016, the Government did issue an undertaking to the Council of Europe that is would do something by the end of 2017. Readers of this blog might be forgiven for not spotting that, in fact, the Government has recently done just that. Not a Bill, as many of us has been expecting, but in the form of a Statement to Parliament.
On November 2nd 2017, the Secretary of State for Justice said (in part):
[T]he Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting.
First, we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the [in the original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.
Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.
Release on Temporary Licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with this approach…
These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.
Our estimate is that these changes to temporary licence will affect up to one hundred offenders at any one time and none of them will be able to vote from prison.
So, hey presto! No need for new legislation or amendment of the Representation of the People Act 1983, but a simple change to Prison Service guidance.
The question this statement raises, of course, is whether this will be enough to satisfy the Council of Europe. My suspicion is that it may not, and that this will not resolve the issue once and for all. But it will probably be enough to kick the issue into the grass for a few more months – possibly longer.
The question of whether the European Court of Human Rights should have jurisdiction over this issue has recently been taken up in a book published by The Policy Exchange. In Human Rights and Political Wrongs: A new approach to Human Rights law Professor Sir Noel Malcolm argues that while Human Rights are very important, the way in which those rights have been interpreted and developed by the European Court of Human Rights has been inconsistent, and in some contexts has had the effect of undermining the authority of democratically elected governments. He argues that Human Rights should be limited to setting the boundaries of state power and that decisions on whether particular policies or decisions are in breach of Human Rights should be done by domestic courts.
I see the publication of this book as the first step in putting the question of whether we have a separate British Bill of Rights back onto the domestic political agenda.
The Secretary of state’s statement is at https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-sentencing.
Professor Malcolm’s book can be downloaded free at https://policyexchange.org.uk/
Reform of the European Court of Human Rights
In 2012, in Brighton, decisions were made to reform the ways in which the European Court of Human Rights operate. I note in the book (Chapter 3) that progress is likely to be slow. In fact the main recommendations of the Brighton Declaration have been implemented. Although there was a dip in the numbers of cases coming before the Court in 2015, numbers have subsequently increased. Thus the principal problem – delay – which the Brighton Declaration sought to address has not been resolved.
Those interested in the process of reform of the European Court can, however, follow recent developments at the following website which sets out documents showing what has been done. It is revised as and when new information is made available.
See http://www.echr.coe.int/Pages/home.aspx?p=basictexts/reform&c=#n13740528735758554841286_pointer
Prisoners’ Voting Rights: the view of the European Court of Justice
I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)
Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.
The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus, the Supreme Court held on that occasion that EU law did not apply.
The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.
Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.
There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.
Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.
For details of the ECJ judgement see http://curia.europa.eu/juris/document/document.jsf?text=&docid=169189&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=242509
Where next for Human Rights?
Much publicity has been given to the publication of proposals from the Conservative Party to, in some way, opt out of the European Convention, or more particularly judgements of the European Court of Human Rights.
I was unable to track the paper down through the Conservative Party website, but it can be accessed from the BBC News website at http://www.bbc.co.uk/news/uk-politics-29466113.
The proposals are controversial and have already generated heated debate. A key issue, which has not had the air-time it deserves, is what message any such move by the UK Government would have on the other 46 states who are also members of the Council of Europe and who are signed up to the European Convention on Human Rights. Despite the Government’s impatience with certain aspects of the way in which the European Convention impacts on the UK (such as the decision on prisoner’s voting rights, or the power of the judiciary to impose whole life prison sentences without possibility of review) there is a general public assumption that – on the whole – human rights are respected in the UK. But this cannot be said for many of the countries who have joined the Council of Europe.
If the UK Government is able to announce that it no longer wishes to accept rulings of the European Court of Human Rights, then it is not hard to imagine that many other countries – where human rights are less well protected – might want to make the same argument. This could lead to an unravelling of the standards set by the European Convention on Human Rights that could lead to significantly adverse consequences for the future development of human rights in Europe.
More broadly, if these proposals went ahead, they could undermine the ability of future UK Government’s to make the case for improvements in human rights standards, in other countries where they currently do not exist or are extremely weak.
I do not argue here that the application of the European Convention through the work of the European Court on Human Rights is perfect. Far from it: the decision taking process is sclerotic; the backlog of cases is a scandal. The UK Government has taken a lead in discussions on developing measures to ensure that the European Court works more efficiently.
And if, as the Conservative Party argues, the Court is suffering from ‘mission creep’ then to remain engaged with the Court and to argue that there has been mission creep seems to me a more positive way forward. (In the latest prisoners’ voting rights case, at least 2 judges expressed significant concerns about the way decisions of the Court had been going, which opens up the possibility that the Court might alter its approach. )
This should be an important issue for public debate. The problem is that so many people do not really understand what the Convention rights are nor how they are applied. The issues are treated inadequately in the news media. Thus there is often assumed to be a lack of common sense about the Convention and its application which is not justified.
Certainly it is an issue that will continue to attract attention over the next couple of years.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 