I’d entirely missed Lord Hoffmann’s recent speech about the European Court of Human Rights: thanks to Afua Hirsch for drawing attention to it. In my view this is a brave and important speech, and I applaud him.
Let me stress that I don’t agree with everything he said. Far from it. In fact, there are quite a few things in it that I disagree sharply with. Most crucially, Lord Hoffmann seems to regret the fact that the ECtHR exists at all, and that individuals can petition it directly. He would it seems prefer the European Convention on Human Rights only to be politically enforceable, by means of criticism of one state by another, or by international organisations or NGOs. I think he’s profoundly wrong about this. The existence of the Court as an enforcement mechanism is the reason why the ECHR is a serious international human rights law, one that countries like Russia and Turkey have to think seriously about, rather than simply being able to ignore; and the right of individual petition ensures that human rights thinking is not completely dominated by the groupthink of establishment liberals like the staff of Human Rights Watch, but is occasionally shaken up by the awkward squad like John Hirst and Christine Goodwin.
I also disagree with Lord Hoffmann’s argument that the ECtHR has less legitimacy than the European Court of Justice – it doesn’t. For some reason Lord Hoffmann seems to think people accept the right of the ECJ to rule on employment law in the UK, for instance, and that its integrationist, teleological approach is mandated by the EU Treaties. I have no complaint about the legitimacy of either court, and I think on the whole both have adopted logical, necessary approaches to their tasks; but each has equally been imposed on the people of European by their governments, and each has had to read fundamental principles into the way they approach their jobs, in order to make things work.
I also agree with many of the judgments the ECtHR has come up with over the years. I think it’s earned respect as an institution, is often right, cutting through national nonsensification, and has shown an ability to admit it when it’s got things very wrong, for instance in its complete misunderstanding of the English law of negligence, which it repented of in Z v UK (see para. 100 of the judgment). So part of me is inclined to write in defence of the Court.
But the reason why, ultimately, my instinct is the opposite of Afua Hirsch’s, and why I applaud Lord Hoffmann, is that he’s right on his central point: the ECtHR has indeed been too quick to intervene in the details of UK law and practice, and he’s right to say so. Strasbourg is, or should see itself as, a supervisory jurisdiction, and would do well to show caution in the way it deals with the law of the most human rights-compliant societies it polices.
Lord Hoffmann cites examples – I’m not even sure I agree with all of them, though they’re reasonable enough. But I have my own examples. In Hirst, I think the Court was far too ready to reject the UK’s ban on prisoners voting, reducing the margin of appreciation to vanishing point; I explained my views more fully to Charon QC in a podcast a while ago. And in S and Marper I think it was far too ready to rule out the UK’s approach to building a DNA database in a judgment that, if it stands, will in my view have a detrimental effect on human rights throughout Europe for decades to come.
The ECtHR would do well to adopt a self-consciously supervisory role, and resist the urge to meddle too fussily in contracting states’ legal systems. Its rulings have the potential to ossify human rights protection, saddling Europe with standards based on current attitudes, particularly if it uses common European standards as a reason to reject experimental policies undertaken by one or two states which might, if tried, enhance human rights in due course. Lord Hoffmann’s warning is a sound one – I hope it’s heeded.