David Cameron and the ‘Small Claims Court’

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

Backlog
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.

Appeals body
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’.

Concluding thoughts
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

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