Thanks to Antoine Buyse of the ECHR Blog, whose post at the UK Human Rights Blog alerted me to the leak of the UK’s draft declaration on reforms to the European Court of Human Rights, for agreement by the member states of the Council of Europe at Brighton in April. Thanks too to the Guardian, who published the English text.

Here it is – you can read my comments starting from page 4.

Some of what’s proposed has been pretty well trailed – the suggestion that references to subsidiarity and the margin of appreciation be inserted into the European Convention on Human Rights, for instance, and the proposed new rule that applications will be inadmissible if they cover the same substance as a case already looked at in ECHR terms by a national court, subject only to a “clear error or serious interpretative question” exception.

What’s more surprising is the proposal that the European Court of Human Rights should be given a new jurisdiction to give advisory opinions at the request of national supreme courts, a little like the European Court of Justice’s “preliminary rulings” in EU law. The proposal appears to be that this would be in addition to, rather than a substitute for, individuals’ right to apply to the Court. Nonetheless I think it could help shift the emphasis of the Court towards a more clearly reviewing and supervisory jurisdiction at least in relation to those states who opt into the advisory opinion procedure, and in combination with the new “same substance” admissibility rule. This is I think a shrewd proposal.

Also surprising is the suggestion that the Court’s rulings should be backed by financial sanctions – that’s an idea that could come back to bite the UK if the current stand-off between the government and the Court about prisoners’ votes isn’t resolved. The idea is an excellent one, which if agreed will help make compliance real in those states with a much worse record than the UK. No doubt it’s also been included so as to stress that the UK wants reform, quality and effectiveness, not to weaken the Court.

My hunch is that ministers think they’ll succeed, ultimately, in satisfying Strasbourg with a relatively modest grant of votes to prisoners – and that in any event some votes for prisoners will be a reasonable price to pay for serious reform in Strasbourg.

2012-03-01T14:44:08+00:00Tags: , |