30 January 2014

How many ECHR cases did Britain lose last year?

A new year, a new round of unelected-euro-judges-waging-war-on-British-justice watch.  

The European Court of Human Rights has had a relatively quiet start to 2014 in the pages of the UK press.  Somewhere, I'm sure, a Tory MP is trauchling away at the idea that the Court is systematically subverting our domestic judicial and parliamentary processes - with the bad grace of doing so as the same time as having a piffling Luxembourg jurist as its president - but the daily hate agenda seems to have shifted back from Strasbourg to Brussels. An understandable shift of emphasis, you might well think, given the approaching elections to the European parliament.

Sooner or later, however, the Court will produce an opinion which offends the blue-rosetted tribes of the House of Commons, and the europhobic victim fantasies will be dusted off and trotted out. Today, the Court has published its annual account of its work over the last year. Buried at the bottom of this substantial report is a niggling little statistic which everybody who hopes to understand the Court's real impact on Britain should have at their fingertips.  

For our illustrious Lord Chancellor and Home Secretary, every passing decision of the Court is yet more evidence of the institution's overreaching desire to subvert British democracy. Whatever the merits of a particular decision, and whatever the demerits of the legal regime being challenged, you can rely on the justice ministers of the current government to denounce it in shrill terms. 

If you are already predisposed to believe the underlying claim - that Europe is robbing us of our freedom to be beastly to beastly people - every passing precedent may appear just another casualty of "Europe's war on British justice". Doesn't it feel as if the European Court is always finding the UK in violation? Wasn't there that article just the other week about some disagreeable sod using human rights arguments to force the Home Office to give every con a weekly bath in asses' milk? This, as Phil observes over at A Very Public Sociologist, is stupid empiricism. We have to take a look at the wider picture. And that picture blows these delusions to bits.

So how many cases did Britain lose last year? Thousands? Hundreds? The Court certainly had the opportunity, taking decisions on 1,652 applications submitted against the UK during 2013. And did the malevolent band of Maltese and Andorran judges, as expected, glory in Britain's discomfort, substituting their own preferences for parliament's again and again?  Er. No. Not really.

During 2013, the Court found that the UK had violated Convention rights in just eight of these cases. If this tiny clutch of judgments represents war on British justice, I'd love to know what an acceptable number of adverse findings might be. This is two fewer adverse judgments than last year, representing an overall rate of defeat before the Court for the government of just 0.48% during 2013.   

Take a moment to take that in, and keep it in your pocket the next time a Conservative minister or parliamentarian or Express reading pub bore tries to convince you that the Court's judges are systematically undermining British democracy.  In 2013, as in 2012, this is a pitiful victim fantasy or a smokescreen: crabbit, feeble and entirely unjustified self-pity.

10 comments :

  1. There's a good analysis of the UK's record before the ECtHR by Michelle Lafferty in the latest issue of the Edinburgh Law Review.

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  2. Oh Peat Worrier, mightn't we agree not to use terms such as "europhobe" or "conservative"? They are superfluous. Can't we stick to the good, old-fashioned, virtuously leftish "democrat"? For example: "I oppose all of this nonsense, because I'm a democrat."

    If you believe in democratic sovereignty, you should surely believe that it is indivisible. Because something is either democratic or it isn't. Henceforth, that's eight too many.

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    1. You may be surprised to hear this, but I have some sympathy with that argument - it just isn't the one that we're hearing from the Court's critics. Compared to many (most?) folk, I'm a moderate constitutional/human rights skeptic, when we enshrine those vague norms in judicially-enforceable laws. As you say, if you reject, as such, the legitimacy of international judicial bodies like Strasbourg - no cases is the right number of cases to be decided against the state. But Grayling and May et al don't generally make that principled case, appealing instead to vague suspicion of foreigners, allegations of judicial bad faith and the like. None of which is particularly to the point, if your basic point is that the institution shouldn't exist. Given the various mechanisms which currently exist to distribute sovereignty, it is a radical - but more interesting - argument.

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    2. I'd also ask a particular constituency (not Lallands, I stress) has a bee in its bonnet about the unelected nature of the House of Lords but not those members of the ECHR who aint even been appointed by elected representatives from this country.

      ~alec

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    3. Actually, as it happens Alec...

      ... ECHR judges are both elected in one sense and appointed by representatives of this country (along with representatives of other countries).

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    4. Accepting that this country might have leave to complain about certain non-British appointees (dunno, but I don't why not), only the British appointees can be said to have been appointed directly by this country which was my point.

      And most members of the HoL are appointed, including Lord Lang whom 'Reporting Scotland' kept referring to as "un-elected" and made Salmond come-over all ashen-faced as he pressed Davidson to play his purity game. Personally, I think the concept of the HoL is the best thing about our constitution... members who have, in theory, done something with their lives instead of being another bunch of hacks on the make (less sure about some of the actual members).


      ~alec

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    5. Ah, that's a reassurance - I am generally unnerved by the way in which the Left is happier to attack "europhobes" than to defend sovereignty. In any case, there are many more awful things than this far-flung court impinging on our sovereignty, but if you give an inch...

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  3. "If you believe in democratic sovereignty, you should surely believe that it is indivisible." Why? If people have multiple overlapping identities, surely they can make decisions in an equally large number of democratic contexts? The idea that sovereignty is indivisible - the nation-state rules all - is past its sell-by date. As Neil MacCormick said in 'Questioning sovereignty' a diffusionist theory of legal authority can support "a plurality of interlocking sets of standards of right and wrong, operated by different authorities in different spheres of responsibility". This may make life complicated but no one ever said democracy had to be simple.

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    1. Then again, MacCormick said that jurisprudence was "paddling in the shallows of philosophy".


      ~alec

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