Some myths in common circulation about the European Court of Human Rights, which need to be dispelled for proper public debate to take place

The case of Hirst v United Kingdom, in which the European Court of Human Rights held that the prohibition on prisoners voting in the UK was incompatible with the European Convention on Human Rights, has caused a furore in Westminster and the media. Politicians and newspapers have used the controversy to reopen the debate on the UK's membership of the Council of Europe, and the influence that decisions of the court have domestically. This has raised questions, in a very public forum, about the extent of the court's authority, and as a corollary of this about the sovereignty of the Westminster Parliament. 

This appears to have given some momentum to the argument that the United Kingdom should consider withdrawing from the Convention. However, it has also demonstrated a significant level of ignorance and misunderstanding about the operation of the Strasbourg court and the institutions of the Council of Europe. Given the increasing impact that the court is having on domestic law, and has had since the commencement of the Scotland Act 1998 and the Human Rights Act 1998, it is important that Scots lawyers understand the way in which judgments in Strasbourg are made and implemented.

This is also necessary in a broader sense to better inform the debate on secession from the Convention, as well as the more recent suggestion that devolution issues should bypass the Supreme Court and simply go straight to Strasbourg. It is, therefore, against this background that this article explores some popular myths that have developed about the institutions and operation of the Council of Europe, and seeks to help frame the debate on the influence of the Strasbourg court.

Myth 1 – the Council of Europe and the European Union are the same entity

That this is not the case will be axiomatic to most Scots lawyers; however it is worth reiterating. If it is said often enough, then perhaps the media will catch on. The Council of Europe is the body responsible for the Convention, and is composed of three branches. The Parliamentary Assembly is the deliberative branch, the Committee of Ministers is the executive, and the European Court of Human Rights is the judiciary. All 47 Council of Europe member states are represented in each.

The European Union is, of course, composed of the directly elected European Parliament, the European Commission, the Council of the European Union and the European Court of Justice, and represents only 27 member states. In light of recent discussions about the European Union becoming a signatory to the Convention, and the option being made available by the recent ratification of a new protocol to the Convention, this distinction needs to be made more clearly than ever.

Myth 2 – the UK does not need to comply with the judgment in Hirst by allowing prisoners to vote

In 1951, the United Kingdom ratified the Convention, and in doing so accepted the imposition of a new obligation upon the UK. Article 46 of the Convention is the enforcement mechanism for judgments from the court, and obliges member states to abide by decisions of the court against them. Where the Committee of Ministers, who are responsible for ensuring judgments are properly implemented, feel that a member state has failed to do so, they may refer that question to the court. Where the court agrees with the Committee of Ministers, it refers it back to allow the Committee of Ministers to decide on the measures to be taken against the member state.

Beyond this, there are no specific measures available to the Council of Europe to enforce compliance with judgments. However, a failure to do so does leave the state in breach of its treaty obligations. The UK could, of course, withdraw from the Convention, but unless it does so the obligation remains.

Myth 3 – the decision in Hirst was made by a bench of unelected judges

Again, this is far from the truth, but was perpetuated by parliamentarians during the recent debate on prisoner voting rights. The court consists of a judge from each member state of the Council of Europe, all of whom are elected for non-renewable periods of nine years by the Parliamentary Assembly.

Under article 21 of the Convention, judges must be “of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. They are chosen by the Parliamentary Assembly from a list of three candidates nominated by the relevant member state (Convention, article 22), who are interviewed by members of the Assembly before the vote takes place. The Parliamentary Assembly is entitled to refuse the list presented by the member state if, for example, the candidates do not appear to be sufficiently qualified.

Members of the Parliamentary Assembly are themselves elected representatives, as all are serving parliamentarians from their home countries and have been selected by their national parliament to sit in the Parliamentary Assembly.

Myth 4 - the Strasbourg court is collapsing under the weight of pending cases

There may be an element of truth in this, given that there are well over 100,000 pending cases. The court, however, is very much still operational, and is producing more decisions than ever before. The recent adoption of Protocol 14 to the Convention has changed the way in which the court operates, and it is hoped that this will help to reduce the number of cases pending before the courts.

The court can now sit in four different formations. A single judge is now entitled to decide on the admissibility of an application, and a committee of three judges can decide on admissibility and the merits. A chamber of seven judges, which will include the President of one of five sections, will decide on the merits of a case only, and parties then have three months to ask for a referral to the Grand Chamber (which consists of 17 judges including the President of the court). This will only be accepted in exceptional cases raising serious questions affecting the interpretation or application of the Convention, or a serious issue of general importance (Convention, article 43). The judge from the respondent state in a case sits as an ex officio member of the chamber and Grand Chamber, and all decisions are taken by majority vote with reasons given.

Myth 5 – the United Kingdom has no latitude in deciding how to implement adverse judgments such as Hirst that are politically controversial

To debunk this particular myth, we need to look at the way in which decisions of the court are implemented. It is the role of the Committee of Ministers, which consists of the Foreign Ministers of all member states, to supervise the action taken by a state following a finding by the court of a Convention breach. The Committee of Ministers then invites the respondent state to inform it of the action taken to comply with the judgment, including payment of any just satisfaction awarded and compliance with any individual or general measures necessary to meet the state’s legal obligation to abide by the judgment. In performing the task of enforcing a judgment the Committee of Ministers is assisted by the Department for the Execution of Judgments, which supervises the fulfilment of these various obligations by the state, and makes recommendations to the Committee of Ministers as required.

Some obligations are clearly more onerous than others. The payment of just satisfaction, an amount of money awarded by the court to the applicant which may cover pecuniary and non-pecuniary damage or costs, is a strict obligation contained in the judgment that will rarely cause many difficulties. Areas where the Department for the Execution of Judgments will have a more significant role are where further measures, individual or general, are required to remedy a breach.

Individual measures are those the state requires to take in favour of the applicant to redress the breach of their rights, such as reopening unfair proceedings or revoking a deportation order issued despite a risk of torture on return. General measures are more substantial, often systemic changes required to comply with a judgment, such as reviewing legislation or judicial practice to prevent further violations. One such example is the prisoner voting rights issue, where the UK Government is required to address the domestic law which currently precludes the majority of prisoners from voting.

Such measures are not explicitly stated in the court’s judgment, and the respondent state has a significant amount of freedom in deciding how to comply with a judgment against it. In the case of prisoner voting rights, this is complicated by more recent judgments such as Frodl v Austria and Scoppola v Italy (No 3), which appear to impose different requirements than those contained in Hirst, and the subsequent case against the UK of Greens and MT v United Kingdom. However, it is up to the Committee of Ministers, assisted by the Department for Execution of Judgments, to ensure that the obligation is met with an appropriate response.

Where a state is failing to comply, the Department for the Execution of Judgments may make a recommendation to the Committee of Ministers that the committee publish an interim resolution in an attempt to expedite a response from the state (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, rule 16). When the Committee of Ministers is satisfied that the state has fully complied, it will publish a final resolution closing the case (rule 17). In practice, there are no hard and fast rules, and judgments are implemented through a series of negotiations and discussions, and are only finally closed when the Committee of Ministers agrees that the judgment has been complied with. There are, therefore, opportunities for political persuasion and negotiations over the standard that the respondent state must meet.

Today, the effective protection of human rights is arguably as important as it has ever been, and so the debate as to whether the United Kingdom should remain as a signatory to the Convention takes on an increased significance. It is essential that this debate does not take place against a background of half truths and misinformation. The Strasbourg court may not be perfect, but it deserves a fair trial.

The Author
Gavin Baird has worked for both the Council of Europe and the Government Legal Service for Scotland. All views expressed in this article are the author’s own.  
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