In the Media

Britain v. Strasbourg

PUBLISHED May 1, 2009

When law lords retire, they like to get things off their chests. With Lord Bingham last November, it was the view that Britain had invaded Iraq on "flawed" legal advice. And with Lord Hoffmann in March, it was that the European Court of Human Rights should no longer decide individual claims.

Bingham has a perfectly good reason for not expressing this view in 2003: it would have prevented him from sitting if the law lords had subsequently been asked to decide the issue. Hoffmann has less excuse: Britain first allowed individuals to petition the Human Rights Court as long ago as 1966, while Lennie Hoffmann was still teaching in Oxford. It is hard to escape the conclusion that Hoffmann wanted his term of office as a law lord to be remembered for something other than his 1998 decision to sit in the Pinochet case while he was "disqualified as a matter of law" - a misjudgment that meant he could never become senior law lord.

In his lecture to the Judicial Studies Board - the body that trains judges - Hoffmann said that the European Court of Human Rights "lacks constitutional legitimacy" because it has one judge for each of 47 states in the Council of Europe. He points out that the four smallest countries - "which have a combined population slightly less than that of the London Borough of Islington" - each has one judge. Russia, with a population of 140 million, also has just one. Does he really want Russia to have two or three times as many judges as Britain? Or does he think there should be nobody on the court representing countries such as Liechtenstein - which chose as its judge a South African-born, Swiss-trained law professor who had worked as a senior lawyer at the court? 

No, Hoffmann's problem is "the right of individual petition, which enables the court to intervene in the details and nuances of the domestic laws of member states". He would be perfectly happy with a court that merely criticised member states for human rights breaches, without putting them under any obligation to remedy those breaches. Failing that, he would extend the "margin of appreciation" - a poorly-translated French concept under which states are allowed some latitude or discretion in administering their own laws, particularly on issues of sexual morality.

Removing the state's obligation to change its laws in line with Strasbourg rulings would reduce the court's influence over the emerging democracies of Europe to almost zero. And it is not a requirement that troubles most governments unduly. Five years after the court first declared that Britain's blanket ban on allowing sentenced prisoners to vote breached the right to free elections, there is no sign of any change in the law. 

But Hoffmann is on stronger ground in asking the Strasbourg judges to extend the margin of appreciation. To some extent, they do so already: ruling on a challenge by the radical Muslim cleric Abu Qatada and other detainees in February, the European Court showed great deference to the law lords' famous "Belmarsh" ruling in December 2004. 

Even so, Hoffmann is right to suggest that where a national court has properly taken account of Strasbourg rulings, the European Court should be slow to interfere. The whole point of passing the Human Rights Act was to enable courts in Britain to apply the European Convention, making it less likely that an appeal to Strasbourg would be either necessary or successful. 

Now, though, both Labour and the Conservatives are promising reforms. The Tories want to replace the Human Rights Act with a British Bill of Rights "to better tailor, but also strengthen, the protection of our core rights". 

I have no idea what this means. But if they intend to make some aspects of the Human Rights Convention harder to enforce in our own courts, the Strasbourg judges would have greater justification for finding against the UK. And it would also undermine what I regard as Hoffmann's best point: that our courts are just as able to interpret the convention as the European judges.

The government, meanwhile, has recently published a Green Paper on "Rights and Responsibilities". This makes it clear that giving individuals "justiciable" rights - ones that can be enforced in the courts - is the last thing Labour wants to do. That would involve empowering the judges.

The paper offers three options along a "continuum", while making it clear that the favoured option is a declaration "intended to have no legal effect in the courts". Indeed, it might not even need legislation. 

Why do I hear the words "waste" and "time" swirling around my mind?