In today’s Independent, President of the European Court of Human Rights Sir Nicolas Bratza defends the record of his court, and effectively pleads for more understanding in Britain. The European Court, he says
has been particularly respectful of decisions emanating from courts in the UK since the coming into effect of the Human Rights Act, and this because of the very high quality of those judgments. To take 2011 as the most recent example: of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases.
This is a good point to make, rightly correcting the misleading statistics that have been bandied around on this subject and that have already been taken apart by Adam Wagner at the UK Human Rights Blog.
In fact, Bratza makes a number of very good points. The Strasbourg court’s influence has been overwhelmingly positive, he says, citing issues on which its rulings have been widely accepted such as corporal punishment, homosexuality, the rights of transsexuals and the treatment of child defendants. He reminds us of the court’s role in consolidating democratic reform in central and eastern Europe, and points out that the court’s backlog is not the result of its inefficiency, but of the huge and increasing volume of applications it receives. I agree with almost everything he says.
But he goes on:
Against this background, it is disappointing to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the court’s role and history, and of the legal issues at stake. It is particularly unfortunate that a single judgment of the court on a case relating to UK prisoners’ voting rights, which was delivered in 2005 and has still not been implemented, has been used as the springboard for a sustained attack on the court and has led to repeated calls for the granting of powers of Parliament to override judgments of the court against the UK, and even for the withdrawal of the UK from the convention.
Bratza does not defend or criticise the Hirst judgment on prisoners’ votes, it’s worth noting – rightly, since it cannot be part of his role as President to debate the merits of any one of the court’s rulings. Fair enough. And I agree with him that the stand-off between British politicians and the court on prisoners’ votes is indeed unfortunate. But this case in particular undermines Sir Nicolas’s contention that
criticism relating to interference is simply not borne out by the facts.
I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist.
In the Hirst case and a couple of those which have followed, the court ignored one of its own key legal principles (the “margin of appreciation” it supposedly allows states), preferring to micromanage policy throughout Europe. The same sort of thing happened, I’d argue, in the DNA database case, S v Marper.
If the court can check its own occasional excessive interventionism, it will deserve our respect all the more.