3 July 2013

Who are human rights really for?

In Brighton in 2012, the governments of the forty-seven member states of the Council of Europe assembled to discuss how the European Court of Human Rights could best be reformed.

In the United Kingdom, as many of you will recall, the issue suddenly caused a big stramash.  David Cameron, Ken Clarke, and his replacement as Lord Chancellor, Chris Grayling, all rallied to argue that the Court was interfering inordinately in Britain's affairs, usurping the primacy of states, as protectors and guarantors of the human rights of their citizens.  

The fruits of their deliberations was Protocol No. 15 to the Convention which, amongst other things, will cut the period of time available to applicants to lodge their cases in Strasbourg, from six months to four.  Superficially just an administrative reform, reflecting developments in human communication since the 1950s, in a piece for the Firm today, I argue that these reforms pose a real risk to the most vulnerable folk in Europe, subject to the worst outrages against human rights, least able to access legal advice.  It is a theme I touched on in a Scotsman piece earlier in the year.   An excerpt:

The “original” European Convention on Human Rights “was a laudable document, written at a time when Stalin was in power and people were being sent to the gulags without trial.  What has happened is the jurisprudence of the Court has moved further and further away from the goals of its creators.”
That verdict, from Chris Grayling MP, has been a consistent feature of the Lord Chancellor’s assault on the European Court of Human Rights over the last twenty-four months. Grayling depicts a tribunal which has lost its way, corrupting its vocation as a bulwark against serious state outrages to focus instead on frivolous points of law, upturning perfectly decent British judicial decisions, and aggrandising its jurisdiction.
Despite Grayling’s comments, Stalin’s Soviet Union formed no part of the Council of Europe, and the Court never enjoyed authority to investigate the regime’s treatment of its citizens. Today, the tribunal’s jurisdiction extends east from Iceland to the Baring Strait.  The Russian Federation joined in 1998 along with a wave of eastern European states, as the dust from the fallen wall in Berlin settled during the 1990s. A fragment stands in the Court’s gardens in Strasbourg, in mute recognition of Europe’s shifting geo-politics.

It has suited Conservative UK ministers to project an image of “pushing for reform in Europe” to their domestic constituencies. In truth, international debates on reform of the Court have only ever stalled, and not really stopped, since the middle of the 1980s.  Over three decades, the member states of the Council of Europe have been puzzling over how to deal with the runaway scale of the Court’s jurisdiction and the mountainous quantity of correspondence which it has generated.  Dipping in 2012 for the first time in a decade, the Court’s backlog of undecided cases still numbers over 100,000.

The questions are simple, but intractable. How is a single court, with an operating budget of just over 66,800,000 euros, to cope with and respond adequately to a population of more than 800,000,000 potential litigants? Why do we have a European Court of Human Rights anyway, and what is it for? Should it be a tribunal concerned with compliance with the Convention in the last instance in every case? Should it focus instead on “serious” cases? But what then does “seriousness” mean in this context? Alternatively, ought the institution to concentrate its efforts on what some commentators have described as its “constitutional” function, dealing with new issues, elucidating norms and clarifying human rights standards for the whole continent?

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