January 31, 2012 § 1 Comment
Last week David Cameron made a speech at the Council of Europe in Strasbourg outlining the reasons why he believes it is time for the European Convention on Human Rights system to be reformed. In his speech the Prime Minister suggested that unless reform is enacted the Court risks becoming a ‘small claims court’. His comments have drawn criticism from Sir Nicholas Bratza, the senior British judge, currently acting as President of the Court. This brief post will summarise what Mr Cameron said and why his comments are both untimely and unwarranted.
Need for change
Mr Cameron outlined three interrelated reasons why the UK, under the coalition government, would be pursuing change to the Convention system.
Firstly, he argued that the ability of the Court to fulfil its mandate was being threatened by its increasing workload. He identified the current backlog of cases and continuing increase in applications as an obstacle. In particular he suggested that the most egregious violations were not receiving the consideration they required under the current system. Secondly, the Prime Minister argued that the Court was rapidly becoming a Court of the fourth instance, giving an applicant a final attempt at succeeding where they have failed in domestic hearings. Mr Cameron’s submission here was that under the current system the Strasbourg Court was having its time wasted by being forced to consider trivial applications, many of which had already been rejected on numerous occasions in domestic hearings. Thirdly, he argued that the margin of appreciation, allowing for country specific interpretations of the Convention, was shrinking in favour of a Strasbourg imposed broad European base. Here he specifically referred to the UK’s recent troubles regarding the deportation of terror suspects and prisoner voting rights as issues which the Strasbourg Court should have left to the discretion of national courts.
A better system
Mr Cameron concluded by stating that the Court should be freed to deal with the most serious of violations; that the Court should ensure the right of the individual application rather than act as a ‘small claims court’ and that it should hold each country to account instead of undermining the decisions of national courts.
Critique: Untimely and unwarranted
Mr Cameron’s first reason for reform was the vast backlog of cases pending before the Court. Although correct, this criticism is untimely given that the Council of Europe has, only relatively recently taken steps to rectify the problem by enacting Protocol 14. Despite being objected to by Russia for a number of years, this provision finally came into force in June 2010. Under Protocol 14 there are now measures for dealing quickly with repetitive cases, the Court’s filtering capacity has been reinforced and a new admissibility criterion requires applicants to have suffered a significant disadvantage to gain access to a hearing.
Having been negotiated for a number of years the Council of Europe’s Committee of Ministers first adopted Protocol 14 in May 2004. It appears that despite waiting over six years for this provision to finally come into force, Mr Cameron and his government want to reform the system without even waiting to see if the changes have any impact on the efficiency of the Court.
It is understandable that there is frustration with the backlog of cases, but the reality is that the Court has to give adequate consideration to allegations of human rights violations taking place across 47 states. Although this criticism by Mr Cameron may be well intentioned, the Council of Europe should be wary of accepting further reforms which could allow the Court to spiral into a constant state of transition.
The Prime Minister also criticised the Court as being a final appeals body for trivial applications. Mr Cameron used an application concerning sub-standard travel conditions on a bus from Budapest to Madrid to use as an example of the bizarre nature of one case. Evidently his researchers appear to have been more diligent than those of his Home Secretary when they found this case. One must always be wary, however, of using isolated examples to illustrate a fundamental point. It is unfortunate but true that a number of cases submitted to the Strasbourg Court are of a trivial nature, but this is why the Council voted to adopt Protocol 14 and weed out such applications at any early stage.
Furthermore, the fact that a number of applications, trivial or serious, have the opportunity to be heard in Strasbourg after receiving negative judicial treatment in domestic Courts should be seen as a success, rather than a failure in the current structure. The Strasbourg Court presents the final opportunity to highlight domestic legislation or State action as being incompatible with the Convention, and thus this structure has enhanced the protection of human rights. As recently as 2008 for instance, the European Court of Human Rights overruled decisions of the UK Administrative Court, Court of Appeal and House of Lords in finding that s.64 of PACE, authorising blanket retention of finger prints and DNA samples, was in breach of Article 8. The Conservative Party subsequently campaigned that they would overhaul data retention legislation to make it more human rights compliant and the result of this, the Protection of Freedoms Bill, is currently making its way through the House of Lords.
Although it is justifiably frustrating for a government when their legislation or actions are defined as in breach of the Convention, it is one of the greatest successes of the Convention system that there is a final arbiter who specifically focuses on the human rights impact of a particular law or action and, when appropriate, advocates for change.
Margin of Appreciation
The Prime Minister’s assertions regarding the Margin of Appreciation are grounded in his general approach to Europe. It has been reported that if his reforms are not accepted, the Conservative manifesto at the next general election will include a pledge to call for looser ties to Strasbourg. Preparation for such a break in ties may already be underway as towards the end of Mr Cameron’s speech he highlighted how UK the government is currently investigating the case for repealing the Human Rights Act 1998, a law which gives direct effect to the Convention provisions, to replace it with a UK Bill of Rights.
It may simply be the case that the speech Mr Cameron gave in Strasbourg last week was a prelude to a more prolonged campaign for the UK to break away from the Convention system. If that is the case Mr Cameron should come out and state it as party policy, rather than using his position as the leader of the UK government to direct criticism at the Court.
Small Claims Court
Mr Cameron stated his concern was that the Court was at risk of becoming a small claims court. The Prime Minister should bear in mind when making such comments that although the United Kingdom has improved its human rights record dramatically over recent decades, with only 8 judgements being rendered against the State in 2011, the outlook for individuals across much of Europe is not as bright.
Last week the 2011 statistics of the Court were released presenting clear evidence that the Court is much more than a small claims tribunal. The most common violations regarded the length of proceedings (341), the right to liberty and security (241) and the right to a fair trial (211). There were also 70 violations of the right to life and 183 violations of Article 3. These statistics do not reflect the work of ‘small claims court’.
Mr Cameron made a number of valid points in his speech. The Court is certainly oversubscribed with applications. Several practitioners do attempt to manipulate the Convention system for personal gain rather than for the well-being of their clients. The term ‘human rights’ has developed negative connotations in some quarters due to trivial applications and, on occasion, it would be fair to say that the Court could have made a decision on the basis of the margin of appreciation, rather than searching for a pan-European level of acceptability.
Some of Mr Cameron’s criticisms are serious and reflect a weakness in the system in its current form, yet that is exactly why they are already being addressed on various fronts. It would appear, however, that much of the Prime Minister’s comments are politically motivated and are representative of the Conservative Party’s position on Europe, instead of the United Kingdom’s commitment to human rights.
It is possible that Mr Cameron’s comments are a knee jerk reaction in light of recent decisions against the United Kingdom, or they may form part of a long term goal to grasp sovereignty back from Strasbourg, nonetheless they are both ill advised and untimely. Perhaps what one could take from them is that if the short term threat to the Court is an enormous backlog of cases; the long term threat is unwarranted politically motivated calls for reform.
– Conall Mallory
January 20, 2012 § Leave a comment
It was reported this weekend that the ruler of the Gulf State Qatar had advocated for Arab States to enter Syria in order to stop government forces in the country killing civilians. When asked whether he thought Arab forces should intervene, Sheik Hamad is quoted on the American television programme ‘60 minutes’ as saying that “For such a situation to stop the killing… some troops should go to stop the killing”.
Such a statement from an Arab State leader concerning the situation in a neighbouring country would have been almost unthinkable only a few years ago. Yet this weekend’s statement is only the latest in a series of instances where Qatar has freely broken ranks with African and Asian counterparts in criticising the conduct of one of its neighbours. Although there are numerous exceptions, traditionally States from both continents have closed ranks or at least turned a blind eye, to human rights violations occurring in a neighbouring country. Such practices have been heavily criticised by Western States and played a major role in the demise in credibility of the United Nations Commission on Human Rights which was disbanded in 2006 after its rapidly declining reputation made it impossible for it to fulfil its mandate.
The United Nations Human Rights Council
The practice of sheltering regional allies from criticism continued into the early years of the Commission’s replacement, the Human Rights Council. The practice was generally understood to be retaliation by developing Southern States against what they saw as double-standards in their Western colleagues who they argued would focus on violations in developing countries so as to deflect attention from their own controversial policies. As 26 of the 47 Council members are African or Asian States (13 from each continent), these two groups hold the power to influence almost every decision the body makes and their action, or rather inaction, has led to early criticisms of the new body.
The Council, and previously the Commission, has the power to draw attention to any specific or continuing human rights situation. At the instigation of one third of its members (i.e. 16 States), the Council has the power to hold a Special Session to consider a particular human rights emergency. These can either be thematic or country specific situations. Continuing the practice of not conferring criticism on neighbouring States (apart from Israel), many Asian and African countries have appeared more willing to support calls for Special Sessions concerning thematic issues which do not specifically identify one country for criticism. For instance, in May 2008, 22 of the 26 African and Asian Council Members supported the call for a Special Session to consider the worsening world food crisis, while in February 2009, 20 African and Asian Council Members supported a Special Session to consider the impact of the global financial crisis on human rights. Council members from both continents have appeared less willing to single out one country for criticism. For example, in December 2006 when the Finnish representative to the Council called for a Special Session of the Council to address the pressing human rights crisis in Darfur only 11 of the Asian and African members of the Council initially supported the call (with China, India, Senegal and Cameroon joining the request later).
Qatar on the Human Rights Council
On May 17 2007 Qatar was elected to the Human Rights Council at the first opportunity with 170 votes. Qatar remained united with much of the African and Asian blocs by not visibly supporting calls for Special Sessions to consider human rights crises in other developing nations. In November 2008 only South Korea and Japan from the Asian group, and none of the 13 Council members from the African group, supported the call for a Special Session to consider the situation of human rights in the east of the Democratic Republic of Congo. In May 2009 it was only South Korea from the Asian group and Mauritius from the African group who supported the call for a Special Session to address the human rights situation in Sri Lanka.
The winds of change began to be felt in December 2010 when, in an extraordinary reversal of previous strategy, Nigeria presented a call for a Special Session on behalf of the Group of African States to consider the situation of human rights in Côte d’Ivoire since the elections held on 28 November 2010. In an unprecedented step all 13 African States on the Human Rights Council supported the decision to convene a Special Session. That being said, once again only Japan and South Korea from the Asian group supported the call. Qatar remained one of the Asian States reluctant to focus criticism on an individual State.
Since the Arab Spring of 2011 however, Qatar has been far more proactive in its engagement with the international community on human rights issues. In February 2011 Qatar, along with Japan, Jordan, Maldives, Senegal and Zambia from the African and Asian groups, supported the call for a Special Session to consider the human rights situations in Libya. Although curiously not supporting the call for a Special Session to consider Syria in April, Qatari authorities have supported the convening of two further Special Sessions in August and December 2011.
Qatar’s influence has not been restricted to the Human Rights Council. At the crucial Security Council meeting in March 2011, where the Resolution establishing a ‘No-Fly Zone’ over Libya was established, Qatar played an influential function by stating that it would play a role in any military engagement. In October 2011 it was reported how Qatar followed through with this commitment by sending hundreds of troops to assist the rebel forces in training, communications and strategy. Qatar was also the first country to offer military assistance to NATO forces enforcing a ‘No-Fly Zone’ over Libya and took part in the subsequent operations. Reports further suggest that Qatari funding set up ‘Libya TV’, a station founded to counter the pro-government propaganda which was prevalent before and during the conflict.
This weekend’s statement by Sheik Hamad only further solidifies the reformed approach Qatar takes to the international community. Some have questioned the motivations behind such a change in strategy, in particular there have been suggestions that Qatar wants to establish itself as the leader of Islamic States in the region. Whatever Qatar’s motivation is for leaning towards the Western States’ policies on intervention, it is clear that it will be pursuing this approach whole heartedly. The question now is whether, from its regional and historical voting bloc, it will have to go it alone, or will it others follow?
– Conall Mallory
January 16, 2012 § Leave a comment
Eldon Lecture Series
On Thursday 26 January 2012, Northumbria University will host Shami Chakrabarti, director of Liberty.
“From a promising start with the repeal of ID cards legislation to the disappointing continuation of the odious control order regime, the Government’s record is certainly mixed. But with the announcement that Britain’s human rights framework is to be reviewed by a Commission on a British Bill of Rights, we now face the greatest threat to our human rights protection in the lifetime of the Human Rights Act.
What might the future hold for Common Values in Coalition Britain?”
The lecture will commence at 6pm and will be followed by a drinks reception. This event will be accredited for 1 hour CPD by the SRA and BSB.
To book a place at this lecture, please contact Dawn Mclean on 0191 227 4480 or email email@example.com
POSTGRADUATE RESEARCH LUNCH
The PGR students will be hosting weekly lunchtime discussions each Tuesday between 12.30 and 1.30. All staff are invited to attend. The discussions are an opportunity for staff and PGR students to discuss current and future research projects in an informal setting. Meetings are held at the Postgraduate Suite in Ellison Terrace. The next meeting will be on Tuesday 17th January 2012.
January 9, 2012 § Leave a comment
On the 16th January 2011, Northumbria will host an event examining the legality of torture, its impacts and the UK’s position on the subject.
Beginning at 6.00pm CCE 003. The speakers include:
James Welch: Solicitor, Legal Director of Liberty, and legal commentator for the Guardian
Alan Brice: Psychological Therapist and Centre Manager for Freedom From Torture North East
Email firstname.lastname@example.org to book a place
January 6, 2012 § Leave a comment
In January 2011 the European Court of Human Rights declared that asylum seekers were at risk of being subjected to inhuman and degrading treatment if deported back to Greece. On 21/12/2011 the European Court of Justice (ECJ) ruled that member states cannot deport asylum seekers back to another EU country if they have “substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment”. On this basis they declared that the UK could not deport asylum seekers to Greece under the Dublin regulation.
For more information on the case see the report by the Guardian.
The ECJ ruling puts the functioning of the Dublin regulation in the spotlight: its introduction has meant that Italy and Greece, predominant gateways to Europe for North African countries, have had to take responsibility for any asylum seekers that travel through their borders. Both countries have declared the regulation an unfair burden to carry given the current economic instability of the countries, which has also meant that there is little welfare support for asylum applicants.
The UK government has taken an unsurprising ‘islander’ approach, claiming that the UK should be able to deport asylum seekers to any EU country under the Dublin regulation. Although reform of the regulation is needed, the UK has vehemently resisted agreement to any reforms. As discussed in my previous blogs, very few asylum applicants are sent back to the UK under the Dublin regulation but the UK utilises it to return large numbers of applicants to other EU countries, leading to obvious conclusions about why the government are so keen to keep it.
For further discussion, listen to a short BBC Radio 4 debate on the subject.
– Katie Bales