Nicolas Bratza: Britain should be defending European justice, not attacking it

It is unfortunate that the issue of prisoners' votes has been used as a springboard for attack

Share
Related Topics

The United Kingdom's contribution to the European Convention on Human Rights has been immense. British parliamentarians and lawyers played a key role in its conception and its drafting. British lawyers and, since the entry into force of the Human Rights Act, British courts have exerted a major influence on the way in which the convention evolves. This judicial dialogue is a key element in the proper operation of the convention, in which the role of national courts is critical.

At the same time, the influence of the Strasbourg court on the development of fundamental rights protection in the UK has been overwhelmingly positive. It would, however, be surprising if all its decisions were popular with the Government of the day, or indeed understood and accepted by public opinion.

Yet, looking back at the landmark cases concerning Britain, few people today would dispute Strasbourg's 1978 ruling that the birching of a Manx schoolboy as a criminal sanction was unacceptable. Few would contest that the rules on contempt of court in operation at the time of the Thalidomide case were unsatisfactory, or deny that a journalist's right to protect his sources is a cornerstone of a free press.

Nor does it seems strange in 2011 to suggest that child perpetrators, even of the most heinous offences, like the Jamie Bulger killers, should not be tried in an adult court. Rulings on the legal recognition of transsexuals and the lifting of the ban on homosexuals in the armed forces meanwhile, are surely examples of where domestic UK law was lagging behind societal changes and was brought up to date as a direct consequence of the court's judgments. More recently, the finding that the indefinite retention of DNA samples of persons never convicted of an offence violated the right to private life, was widely applauded in British political and legal circles.

There are many other examples concerning the UK, but, of course, the court's jurisdiction extends to 46 other European states, covering a total population of 800 million. The court has overseen the slow but steady consolidation of the rule of law and democracy in Central and Eastern Europe. Much remains to be done, but the court can be proud of what it has achieved over the past 10 years. It has all but eliminated practices in many former communist countries which undermined the rule of law, such as the power of the executive to reopen court proceedings ad infinitum until the "right" result was achieved. The freedom of association of minority groups in the Balkans has been upheld. Its judgments have prompted greater awareness of the problems facing Roma and their right to be protected against pogroms and police brutality are now being addressed. Freedom of religion has been established in many previously intolerant countries. Journalists no longer face criminal sanctions when they criticise politicians. Homosexuality has been decriminalised across Europe. The victims of domestic violence and trafficking are increasingly receiving enhanced protection.

Two principal criticisms of the court have been voiced in Britain in recent years – that it has allowed a backlog of cases to grow to the point that it has currently more than 150,000 pending cases; and that it has shown itself too ready to interfere with domestic decision-making by substituting its own view for that of national courts and authorities.

With the accession to the convention of new states, the court has indeed had to deal with a massive increase in its caseload. The backlog is not, as has often been suggested, the result of inefficiency. The volume of incoming cases has risen on average by 10 per cent a year since 1998. In 2011, the court decided more than 52,000 cases; however, in the same year it received more than 64,000 new applications. It is a regrettable fact that more than 30,000 of the pending cases relate to repetitive violations of the convention by member states which have failed to remedy an underlying systemic problem previously identified by the court. The backlog has understandably led to calls for reform, but reforming an institution set up by international treaty is a slow and complex process. An amending protocol which came into force in 2010 reduced the number of judges required to adjudicate the most straightforward cases. Further reform is being discussed under the UK chairmanship of the Council of Europe's Committee of Ministers.

The criticism relating to interference is simply not borne out by the facts. The Strasbourg court 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.

In the context of reform, the court itself has sought new solutions. It has rationalised procedures to maximise relatively scarce resources. Thus, it has established a pilot judgment procedure for structural or systemic violations generating the large numbers of repetitive cases. It has adopted a prioritisation policy and has used the new single judge procedure to great effect, achieving an increase of more than 30 per cent in the number of applications dealt with in this way in 2011.

There are, therefore, reasons for optimism, not only because the court's judgments continue to help to maintain and improve human rights standards throughout the wider Europe, but also because the seemingly insuperable problem posed by the sheer quantity of cases appears less daunting than a few years ago.

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.

The European Court of Human Rights is an institution of inestimable value not just for Europeans, but for all those who throughout the world look to its judgments for guidance, and particularly those who do not have the benefit of democratic institutions operating within the rule of law. The UK can be proud of its real contribution to this unique system and its influence in bringing about effective human rights protection throughout the European continent. It would be deeply regrettable if it were to allow its commitment to that system to be called into question by a failure to defend it against its detractors or to offer its strong support for the vital work of the court.

Sir Nicolas Bratza is President of the European Court of Human Rights

* Europe's top judge: Cameron is wrong about human rights
* Nicolas Bratza: Britain should be defending European justice, not attacking it
* Leading article: Mr Cameron must act the statesman in Strasbourg

 

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Ashdown Group: IT Support Technician - 12 Month Fixed Term - Shrewsbury

£17000 - £20000 per annum: Ashdown Group: IT Helpdesk Support Technician - 12 ...

The Jenrick Group: Maintenance Planner

£28000 - £32000 per annum + pension + holidays: The Jenrick Group: Maintenance...

The Jenrick Group: World Wide PLC Service Engineer

£30000 - £38000 per annum + pesion + holidays: The Jenrick Group: World Wide S...

The Jenrick Group: Project Manager

£35000 per annum + Pension+Bupa: The Jenrick Group: We are recruiting for an e...

Day In a Page

Read Next
Mary Christmas: the Bethlehem story is Mary's moment, when a poor peasant girl gives birth to the Son of God in a stable  

The appeal of the Virgin Mary: A supernatural hope at a time of scepticism

Peter Stanford
 

Letters: Why Cameron is wrong about EU child benefits

Independent Voices
Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all
The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'