Posts Tagged ‘European Court of 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.
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
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.
Prisoners’ voting rights: latest developments
The question of whether the UK Government’s policy, that all prisoners should be denied the right to vote while they are in jail, has received further consideration, both in the UK Parliament and in the Grand Chamber of the European Court of Human Rights.
In the 2004 case of Hirst v United Kingdom (No. 2), the European Court of Human Rights found that the UK’s complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights. (A number of other cases had also reach this conclusion.)
The UK Government’s position has been that the blanket ban is justified on public policy grounds. However, given the clear ruling of the European Court, in 2012 the Government – after considerable delay and with very great reluctance – did publish a draft Voting Eligibility (Prisoners) Bill. This Bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords.
In December 2013, it published a thoughtful report on the issue.
By way of background, the Committee stated:
‘Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.
‘In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.
‘We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’
Taking these general principles into account, the Committee then considered the options relating to prisoners’ voting rights.
‘In the Committee’s view, the following considerations should be taken into account:
- In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
- The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
- The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
- There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
- There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
- There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
- The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.’
In the light of these considerations, the Committee recommended that
‘the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.’
In February 2014, the Lord Chancellor wrote to the Committee a letter thanking them for their views and assuring them that they were under active consideration in Government. This letter was published in June 2014. No Bill was announced in the Queens Speech delivered in June 2014.
Since then, a further case has been determined by a Chamber of the European Court of Human Rights. In Firth and others v United Kingdom, decided in August 2014, it was held that – failing a legislative response to its earlier rulings – the United Kingdom remained in breach of the European Convention on Human Rights.
However the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough. The decision also included a dissenting judgement from JUDGE NICOLAOU, who did not think that there had been a breach of the European Convention. In another dissenting judgement, JUDGE WOJTYCZEK indicated his view that the line of decisions developed by the European Court might not be correct and in his view the whole issue should have been revisited by the Court.
There is no doubt that there remains in the UK – and perhaps in other states in the Council of Europe – a view that prisoners should not have the vote. However, there is also no doubt that, pending any revision of the Court’s approach – the present position of the UK Government is at odds with the European Convention as interpreted by the European Court on Human Rights. It may be anticipated that any further response from the UK Government will be further delayed, especially in the light of the reservations expressed by two of the judges involved in the latest case.
For further information, see report of the Joint Committee at http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10303.htm;
the report of the Grand Chamber of the European Court is at http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-146101%22]}
Prisoners’ Voting Rights: Supreme Court judgement
The decision of the UK Supreme Court on Prisoners’ voting rights, published on 16 October 2013, seems to me to be rather more nuanced than much of the media coverage I have read and heard.
The case which reached the Supreme Court involved two appeals, one from England (Chester) and one from Scotland (McKeoch). Only the Chester case invoked the European Convention on Human Rights and the Human Rights Act 1998. Both cases also raised a question of EU law.
The issue under EU law arose from the focus in the EU on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. However, eligibility to vote in Member States is basically a matter for national legislatures, and a matter for each individual legislature to determine. 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, in both cases, the Supreme Court held that EU law did not apply.
As regards the European Convention on Human Rights and the Human Rights Act 1998, the Supreme Court noted that in a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (“ECtHR”) had held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1, the duty to hold free and fair elections.
Under the HRA, the Supreme Court is required to “take into account” decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with Article 3 Protocol 1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not, in the Supreme Court’s view, a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHR’s caselaw.
Thus contrary to some reporting, the Supreme Court has upheld the ECtHR’s view that the UK’s blanket ban on voting rights is incompatible with the European Convention. The Supreme Court did not issue a declaration of incompatibility, however, because that is a discretionary remedy; the Court had already issued such a declaration; the Government was undertaking work to respond to the initial declaration; it was not for the Court to say how the Government should ultimately resolve the matter; and that therefore, being a discretionary remedy, the Court would not exercise its discretion in this case.
So the ball is still very much in the Government’s court.
The full judgement of the Supreme Court and a press release prepared by the Court are available at http://www.supremecourt.gov.uk/news/latest-judgments.html
Martin Partington: Introduction to the English Legal System 15th ed 2021
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Martin Partington: Spotlight on the Justice System 