Reform of the European Court of Human Rights

Reform of the European Court of Human Rights

(Based on the submission to the Council of Europe in January 2014 by INTERIGHTS and previously published in the Society of Labour Lawyers Newsletter)

The Council of Europe (the parent body of the Court) is considering the issue of the longer-term reform of the system of both the European Convention on Human Rights and the European Court of Human Rights.  This follows on from a series of detailed reforms which attempt to deal with the backlog of applications pending with the Strasbourg Court.  In fact the reforms already in place (in Protocol 14) have allowed the Court to reject much faster many hopeless (inadmissible) cases.  Obviously the opportunity to consider the long term future of the Convention and the Court is welcome.

However, we should to pause to highlight the incredible successes of the Convention and the Court.  Despite its reputation in some quarters in the UK the Court has had a massive impact on the protection of human rights across Europe and beyond.  It has resulted in ending some of the most egregious practices and created possibilities for the vulnerable and for minorities to live out their lives in ways that were not possible before the creation of the Convention and the Court.  We should celebrate this success and promoting this success should be at the heart of the reforms.

Many of the Court’s difficulties arise because it is the victim of this incredible success.  We need to ensure that any proposals are designed to promote the practical and effective respect for human rights across Europe.   This would require recognising the importance of retaining individual petition, proper implementation and enforcement of judgments and the means to ensure that the model can remain effective for the long term.

The ultimate responsibility for the current problems does not lie with the Court itself.  The renewed emphasis the Court’s subsidiary role, as exemplified by the “Brighton Declaration” (and driven forward by the UK government), requires the 47 Member States themselves (including their parliaments) to take the necessary steps to ensure effective protection of Convention rights on the domestic level and, as a consequence, to reduce the supply of work provided to the Court itself.  Other member states (again including the UK) should provide technical and other support to support a state that is struggling with implementation and compliance.

 

The fundamental principle since the Court’s inception is, and must remain, the right of individual petition.  There is no justification for departing from that basic principle; and the current position concerning the management of the backlog does not require any modifications to it.  We also believe that any move towards developing a ‘constitutional’ Court which picks and chooses its own cases faces insuperable problems, both in practice and in principle.

 

That is not to say there are not issues with the Court that need to be resolved and although the Court has streamlined its processes to address repetitive applications the continuing growth of repetitive applications reflects deeper problems at their root: the failure of domestic states to secure systemic compliance with Convention standards and the absence of effective local remedies for Convention breaches in Member states, particularly in countries facing the largest number of repetitive applications (eg Russia, Turkey, Ukraine as well as, to a lesser degree, Poland, Romania and Italy).

 

The substantial delays in ensuring the implementation of a very large number of judgments requires urgent remedial steps.  Although there may be technical and capacity reasons for some of this, in the final analysis, the position can only be rectified by taking the strategic steps required to tackle the enforcement procedure.

 

We have suggested in our response that, for instance, there would be considerable benefits from appointing a Special Rapporteur as an independent advisor to drive forward the execution of judgments and on possible action in response to particular situations.  We also favour changes to the procedure to so that the more reluctant states can be referred back to the Court if they delay or refuse to properly implement judgments against them.

 

INTERIGHTS strongly argues that the national implementation of the ECHR and resolution of systemic human rights problems are the primary responsibility of the Member States.  Many of the problems the Court faces are direct consequences of the failure to achieve effective rights protection by Member states at the domestic level.  It is vital to address these underlying issues rather than to amend Court processes to deal with the practical problems for case management which result from the failure to ensure practical and effective rights protection in the Member States themselves.

 

Some governments across Europe are less supportive of the Court’s “successes” and might be tempted to use this reform process to make changes that reduce its impact across Europe and we need to monitor the proposed reforms carefully. The constant criticisms of the Convention and Court by ministers and others in the UK are unlikely to make is easy for sensible reforms to be proposed by the UK government.  What is of even greater concern is that this critical message allows some of those countries whose record is considerable worse than the UK’s to use it as a way of avoiding or delaying much needed reforms to protect human rights.  We are already picking up reflections of this rhetoric in the debate on the reforms.

 

Richard Clayton QC and John Wadham (Executive Director of INTERIGHTS – the International Centre for the Legal Protection of Human Rights)

Proper accountability for public bodies with constitutional significance

Proper accountability for public bodies with constitutional significance

Constitutional bodies with a role in holding the government to account, protecting the rights of the citizen or regulating public bodies with state powers should be sponsored, supported and accountable to Parliament and not to government departments or ministers.  Already the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. Other regulators such as the Office of Fair Trading also report directly to parliament, with a status as non-ministerial departments.

These arrangements could be extended to:

  • The Independent Police Complaints Commission
  • The Equality and Human Rights Commission
  • The Care Quality Commission
  • Information Commissioner
  • Her Majesty’s Inspector of Prisons[1]

In relation to the EHRC such a model has been endorsed by the chair of the United Nations ICC (that regulates the criteria for the independence of such bodies, the Paris Principles).  The Joint Committee for Human Rights took a similar view[2], stating:

‘… the standard model of NDPB accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).’

The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of non-departmental public bodies[3]

In relation to the IPCC the European Court of Human Rights, when assessing the independence of its predecessor (with the same process for appointing its Board) said:

“46.  The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

47.  Accordingly, the Court finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention.”[4]

It is important that bodies that have a constitutional and democratic role in ensuring that other public bodies, including the government, comply with the law including human rights obligations are completely independent from any government influence. Parliamentary accountability would provide them with the appropriate independence to fulfil this role impartially.

The Government department that sponsors such bodies often has a policy role that overlaps with the body itself and ministers and officials can be particularly interested in the substance of the work carried out not merely the issues of governance and financial accountability.  This has led to attempts at different levels to interfere or influence the independent body’s actions.  In many cases this influence is designed to promote the government’s wider agenda but can also lead to short term gains being given precedence over long term and necessary changes with the bodies being regulated or inspected.

Chairs, commissioners and chief executives that are appointed (and subject to re-appointment) by government can be presented with real difficulties and conflicts of interest which, in high profile or controversial cases, can cause considerable soul searching and do not always create the rights circumstances for independent decision making.

 

It is also likely that a more politically plural board would result from the proposed changes, as appointments would no longer be made by the majority administration long term consistency of accountability arrangements would be established. For instance, the EHRC had four different sponsor departments in its short life and only because it had to follow its lead Minister – the minister for equality and they had a series of other, bigger responsibilities attached to different departments.

It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used elsewhere. For instance, The Scottish Human Rights Commission reports directly to (but remains independent from) the Scottish Parliament and has its budget set by the Scottish Parliament.

Many similar constitutional bodies with a role in holding the government to account report directly to Parliament, such as the National Audit Office, Electoral Commission and Parliamentary and Health Service Ombudsman. As do other NHRIs, such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament.   Other regulators such as the Office of Fair Trading also report directly to Parliament, with a status as non-ministerial departments.  In England, the government has recently published plans to amend the Office of the Children’s Commissioner (OCC) and make it more accountable to Parliament[5].

John Wadham

 

[1]These are examples of organisations that the author has some experience of, the list of keys constitutionally significant organisations is longer.

[2] Joint Committee On Human Rights – Sixth report session 2002-03, Eleventh report of session 2003-04, and Sixteenth report of session 2003-04: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/156/15602.htm

[3] Public Administration Committee, Fifth report 7 January 2011, http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpubadm/537/53702.htm.  See also the recommendations for the appointments of the chairs of such bodies to be subject to Parliamentary committees scrutiny: Liaison Committee – First report ‘Select committees and public appointments’ http://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/1230/1230.pdf

[4]Khan v UK, 12th May 200.

[5] ‘Reform of the Office of Children’s Commissioner: draft legislation’, Department for Education 2012 http://www.official-documents.gov.uk/document/cm83/8390/8390.pdf

New standards for the international redress of human rights violations?

Principles to ensure the effectiveness of international and regional systems for redress of human rights violations

 

Introduction

The international and regional systems for the redress of human rights violations have been a real success in making the protection of human rights a reality for thousands of people. The proliferation of courts and tribunals has led to a massive (positive) body of judicial practices and procedures

It is because of their success that people from across the globe are turning to them with petitions in increasing numbers, which has led to an overload problem for some of these bodies. It is, partly, because of this success that governments across the world are considering limiting their activities and this pressure to reform appears to be increasing.

Unfortunately much of the pressure to reform them is coming from state parties who would prefer an approach which involved less “interference” into their sovereign affairs. In Europe the massive increase in the ECtHR’s caseload has led inevitably to attempts by states to reduce access and to impose the concepts of “the margin of appreciation” and “subsidiarity” as a way of pushing back.  The Council of Europe has now launched a wide ranging consultation on the long term future of the Court.

There are concerns about reforms proposed within the Inter American systems affecting independence and the capacity to defend victims and state parties are considering pulling out of the system altogether.

The African Commission is constrained by state non-compliance, lack of adequate resourcing, delays and lack of clarity within the system. Only seven countries have allowed individual complaints to be brought to the African Court, which has also suffered delays in becoming operational. Its overlapping jurisdiction with the Commission has also hindered realisation of its potential.

The United Nations Treaty processes that allow individual or groups to make complaints are finding it difficult to function properly and are now being reformed.

Finally, the development of a regional mechanism for South East Asia has been long delayed and fraught with difficulties.

All of the international treaties, which established these bodies, promote the right to fair trial by an independent and impartial tribunal and the right to an effective remedy.  The organization and functioning of each of these bodies should be inspired themselves by such principles and efforts should be undertaken to translate them fully into reality. However, there are no rules or standards detailing how these principles are to be applied to the various regional and international courts and existing rules are piecemeal. At the same time, the success of the existing bodies has led to overload and blockages of the systems, and to determined efforts by governments to undermine and limit these bodies (by pulling out of the systems, or pressing for changes that weaken the systems). These regional and international human right courts and tribunals are charged with often the ultimate decisions over issues of central importance to citizens, such as life and fundamental freedoms and rights.

A proposal

Many NGOs, NHRIs, lawyers and academics are justifiably critical, however, both of the inadequacies of each and every one of the current systems and, of the direction of the reforms.  There is therefore a need to clarify the many different theoretical assumptions that provide the basis for these criticisms and unravel the presumptions that are being made about how a “good” institution should work.

If there existed a set of basic standards developed to measure the performance of all these institutions then this could be used to encourage reform to proceed in the right direction.  If those standards were adopted widely (perhaps even by the institutions themselves) then there would be some objective way of measuring the proposals from state parties for reform and exposing those states that wanted to opt out from the systems.  It could also be used as a tool to encourage the adequate funding of the institutions themselves – such basic standards could provide guidance to judges, lawyers, respondent states and the public in general as to the guarantees for independent, effective and professional courts and tribunals.  Hopefully this tool might also be used to further promote the mission of the institutions themselves.

One example of successful standards that have worked (at least in part) are the standards on independence, remit and powers created by NHRIs themselves but then adopted by the UN – the “Paris Principles”.  There are also other substantive standards create by the UN and regional bodies which might provide ideas and models – for instance, the UN Basic Principles on the Independence of the Judiciary and the role of lawyers; the ‘Bangalore Principles of Judicial Conduct’ (which inspired later regional initiatives by judges themselves to adopt common sets of standards such as for example, those contained in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region); and the Commonwealth (Latimer House) Principles, agreed by representatives.

Obviously the creation of standards does not, in itself, lead directly to improvement in effectiveness but they might be a useful tool – after all some of the standards like the right to an effective remedy or trial within a reasonable time are part and parcel of the very treaties that these institutions espouse themselves.

The work in creating and lobbying for these standards would provide the NGOs with a focus for our efforts and a programme of action across the institutions and around the world.

The content of the principles might include ideas like:

  • Easy access to the systems for appropriate cases (information, access to application forms and information about who might help applicants) – one day even legal aid?
  • Simple, clear but rigorous processes for dealing with communications
  • Prompt decisions through every stage of the case and prompt final judgments (time limits?)
  • Open hearings but speedy possibilities for confidential settlements
  • Systemic recommendations in every important judgment
  • Properly thought out redress of the individual applicants
  • Adequate implementation and enforcement of decisions and judgments
  • Key aims for decisions and judgments including

o   Development of clearer universal standards for the substantive rights over time

 

  • Responsibilities of applicants and lawyers

o   Standards for communications

o   Professional rules for representation

  • Responsibilities of the state parties and those that fund the institutions (which may also be the state parties)
  • Appropriate involvement of civil society and litigants’ lawyers
  • Guarantees for independence of the regional and international judiciaries (selection and appointment of judges, etc.)

 

First steps

This is potentially a big project and could involve significant resources.  If the idea has any support it would be useful to consider how it might be taken forward relatively slowly at first by getting together a small group of people from each of the four regions (Africa, the Americas, Asia, Europe) to think it through more carefully.  However the long term might include:

  • Starting to build an alliance of academics, NGOs, lawyers, judges and civil society interested in developing a set of principles to ensure the effectiveness of international and regional systems for the protection of human rights
  • Bilateral conversations with the key litigators, academics and NGOs to build support for the idea of the principles and an analysis of what improvements need to be made
  • Engaging with the UN, Inter American system, African Commission and Court, ECtHR and ASEAN project
  • Seminars for NGOs, system experts, academics and those engaged in running the systems to develop the text
  • A larger conference/series of seminars to put together the basis of the principles
  • Event to amend and agree of the ”XYZ principles”
  • Finally encouraging the slow move to adoption by the institutions themselves and implementation

Why I work in human rights

Why I work in human rights

Human rights work can both be very satisfying and very frustrating.  Over the long term human rights promotion is an incredible success story.  From the first treaty – the Universal Declaration of Human Rights – to the hundreds of treaties, resolutions, opinions and judgments at national, regional and international levels that now exist is a testament to this success.  Millions of pounds each year are paid to local and international NGOs and charities to fund human rights work around the world and thousands of people are employed in the promoting human rights.

However improvements tend to come slowly and not quick enough for those of us working in the field.  There are also regular setbacks.  Wars and conflicts create casualties every day – not just the soldiers but the civilians and the refugees.  Conflicts create the perfect circumstances for the security services “requiring” detention without trial or the suppression of freedom of speech.  Meanwhile issues like an adequate income or a home or the absence discrimination or respect for minorities like lesbian, gay or transgendered people get lost.

9/11 and the “war against terror” created a real set back everywhere but human rights defenders have pushed back and space has now been created to discuss privacy and the collection of data and surveillance by governments and the internet industry itself.

I started my career working in local advice centres and law centres in London giving advice and representing people who had difficulties with the welfare system or with housing (or the lack of it) or were the subject of discrimination.  In those far off days we talked about rights but not particular about “human rights” – human rights were about people in other countries.  You obviously don’t need to be a lawyer to fight for human rights and I wasn’t qualified for the first fifteen years of my career.  I became a lawyer because I thought that I could be more effective with legal skills and knowledge – and, that the qualification itself, made me a more effective advocate.

Like most people in the business I started work as an unpaid volunteer when I was unemployed and living on benefits.  I know now that even getting that opportunity was a privilege.

For lots of people it is important to do a job that has meaning, that gives you the chance to make a difference.  Human rights work is that and more.  I think it is a privilege to work as a lawyer creating, selecting and pursuing strategic legal cases in national, regional and international courts, UN treaty mechanisms and tribunals to promote and protect human rights around the world.

Working for human rights was the right choice for me – it is possible to make a real difference.  The work is challenging – intellectually and in terms of developing relevant useful experience.  Jobs in charities and NGOs are not well paid but there are the other obvious rewards.