A “Right of Rebuttal” against Strasbourg?
Dominic Grieve, the Attorney General (right), gave an important speech last night on reform of the Human Rights Act and the Government’s plans to reform the European Court of Human Rights. On 7 November, the UK takes the chair of the Committee of Ministers, the governing body of the Council of Europe, which supervises the Court.
He supported an emerging legal doctrine that the Strasbourg Court should reserve itself for the most outrageous cases (not least because its backlog has now reached 160,000 cases), and let national courts do most of the interpreting of the Convention:
The [European] Court [of Human Rights] should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention …
The principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation.
He quoted Lord Judge, the Lord Chief Justice, in his evidence to the Lords Constitutional Committee last week:
I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win. I think for Strasbourg … there is yet a debate to happen; it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act, when it said the courts in this country must take account of the decisions of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight in most cases, obviously we would follow them, but not, I think, necessarily.
We would therefore benefit from better definition of the very important relationship between the national courts and Strasbourg. Had we wished, in 1998 [when the Human Right Act was passed] the UK could have made it clear that the national courts must follow the jurisprudence of the international court and adopt an approach similar to our implementation of EU law under the European Communities Act 1972 and allow the courts to strike down primary legislation. We specifically chose not to do so.
If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture [pdf], which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.
Whether this will restrain the judicial activism of the Strasbourg Court, I do not know, but, to quote Lord Hoffman, it is worth a try.
Photo: ANDREW CROWLEYTagged in: echr, euroscepticism, human rights act
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