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Why Should Family Lawyers be Interested in the Brighton Conference on the European Court of Human Rights ?

Deirdre Fottrell, Barrister, of Coram Chambers considers the proposed reforms of the ECHR which are under consideration at the Brighton Conference and explains why they are of particular importance to family lawyers.











Deirdre Fottrell, Barrister, of Coram Chambers

The furore around the the British Government's proposals for the reform of the European Convention on Human Rights ('ECHR') may seem remote to many domestic family lawyers.  But family and child law practitioners have much to fear from the proposed reforms of the ECHR which are under consideration at the Brighton Conference which begins on 19th April 2012.

The European Court of Human Rights (ECtHR) has consistently acted as a safety net for the protection of the procedural and substantive rights of the family and of children over the past thirty years.  Its decisions are central to the continued protection of the rights of children and of families because the ECtHR has recognized the rights of the family as a unit and safeguarded the rights of its individual members in a way which has expanded the parameters of domestic protection. 

In many key decisions the Court has also caused the domestic authorities to revisit the framework for protection of the rights of children and parents when the State intervenes in the family.  Thus for example in P, C and S v UK  (2002) 35 EHRR 31, the Court reiterated the standard that compelling reasons were required to justify removal of children under an Emergency Protection Order and further emphasized that important decisions regarding removal of children permanently from parents should only be made when parents are legally represented.  The Court also has a notable record on gay rights and transsexual rights  (see X, Y and Z v UK, (1997) 24 EHRR 143 and Goodwin V UK (2002) 35 EHRR 524) and its decisions in this area have led to the expansion of the concept of the family itself.    In recent decisions the Court has also recognized that where a states fails to provide adequate protection to victims of domestic violence, then it is the state itself which is in breach of human rights resulting from its inaction (see Opuz v Turkey (2009) 27 BHRC 159).  Even the briefest and somewhat random review of relevant case law supports a view that the decisions of the European Court have not only impacted positively on the protection of the rights of family members but that it does so  most importantly when the mechanisms of domestic law fail.   

The UK has consistently been one of the countries with the highest number of cases taken and ultimately Court decisions made against it.  There are two potential explanations for this. The first is that prior to the incorporation of the Convention into domestic law in the Human Rights Act 1998 the UK courts could not directly apply Convention rights even in circumstances where there were obvious breaches.  But a more positive explanation for the number of cases from the UK is that there is a high level of awareness among practitioners of the existence of the right of individual petition to the ECtHR and therefore applications are made as a last resort when domestic remedies have failed to resolve human rights violations by the State.

Any proposal that would limit or curtail the right of individuals must therefore  cause concern to family practitioners in common with other domestic lawyers.  The draft Brighton Declaration which is the centre piece of the British Government's proposals at the Conference seeks to reduce the jurisdiction of the ECtHR to hear individual petitions.   The proposal is that the ECtHR would consider only those cases which have not been litigated before domestic tribunals or in which the claimant can show that he or she has suffered a serious disadvantage.  Such an approach negates the purpose of the Convention itself which is intended not just to apply within the national arena. Indeed, its efficacy has always depended on the existence of a robust supervisory supranational mechanism, namely the ECtHR itself.

This article provides a brief overview of the draft declaration for family lawyers and considers its potential impact on the protection of human rights in this jurisdiction.

The Reform of the European Court of Human Rights
The relationship between UK governments and the European Court of Human Rights has at times in the six decades of the Court's existence been strained. And to some extent that is not unique to the UK as all governments struggle to strike the right balance between the principle of state sovereignty and an acceptance of the supervisory role of the Court under the Convention.

Over the past decade, since the coming into force of the Human Rights Act 1998 (in October 2002), which incorporated the ECHR into UK law, there has been a growing perception that the interpretation of the Convention should be left to the national courts. This view has led to an increased resistance to the supervision of State compliance by the European Court of Human Rights particularly when the latter reaches a different interpretation on substantive issues from that of the national authorities.

The suggestion that the Strasbourg Court's role in supervising UK compliance with the Convention should be reduced lies behind the draft Brighton Declaration, which has been introduced by the United Kingdom during its chairmanship of the Committee of Ministers.  The draft declaration is part of a wider debate about the role of the Strasbourg Court and will be debated at a high-level conference between member states on the 19th and 20th April 2012.  But it must also be considered in the context of a national debate in this country about the future of the Human Rights Act 1998 and the proposed replacement of it by a domestic Bill of Rights.  The draft declaration and the internal debates reveal a resistance to the emergence of the 'right culture' which followed incorporation of the ECHR.  That resistance, which may ultimately lead to a modification of the substantive rights, concerned HRA itself.

Why Reform?
The question of reform of the European Court of Human Rights has been under consideration by the Council of Europe for over a decade.  The catalyst for reform is the 'success' of the Court itself which reflects the efficacy of the process but which is now under threat by the unmanageable increase in the number of applications. Between 1991-2006, the membership of the Court expanded from 21 to 47 member states.   The expansion in the membership widened the reach of the Convention itself to individuals in Central and Eastern Europe and the consequent benefits are obvious.  But the number of applications to the Court has grown so that in 2009 there was a backlog of 119,300 applications and this has caused concern that the efficacy of the procedure itself may be undermined.    There has been a consensus within the Council itself and between member states that the process requires reform to allow the Court to continue to provide an important remedy.

What Reforms?
In May 2004 the Committee of Ministers adopted Protocol 14 to the Convention which was designed to address two causes of the increase in applications which were:

The protocol was intended to change the process by increasing the capacity of a single judge to filter applications which were 'clearly inadmissible'. In addition it introduced a new admissibility criterion concerning cases in which the applicant had not suffered a significant disadvantage. It also established measures for dealing with repetitive cases. Protocol 14 was primarily designed to allow for rejection of unmeritorious applications at the admissibility stage. It also encouraged joint decisions on admissibility and the merits of individual cases. The court was permitted on a case-by-case basis to decide whether it needed to make a separate decision on admissibility. The protocol had an additional feature which was aimed at enhancing follow-up procedures by the Committee of Ministers. Article 46 of the Convention was amended and  introduced a power whereby the Committee of Ministers was permitted to request that the Court provide a ruling on interpretation of a final judgment for the purposes of facilitating the supervision of its execution.

Protocol No 14 entered into force on 1 June 2010 but it has not brought to an end the ongoing debates about the need for reform. Some member states, including the United Kingdom, have become increasingly critical of the fact that the European Court of Human Rights consistently reaches a different conclusion from domestic courts, thereby finding the UK in violation of the Convention. The criticism is underpinned by a resistance to the supervisory role of the courts. UK national authorities point to the incorporation of the Convention in the Human Rights Act of 1998 and query whether it is appropriate for the European Court of Human Rights to reach a different conclusion about the application of Convention principles when the substantive arguments have already been considered by domestic courts.

The draft Brighton Declaration seeks to address a different issue, namely the interplay between national courts and the European Court.  In particular the draft declaration focuses on subsidiarity and proposes to limit the Court's jurisdiction to consider only those cases in which there is: (1) a serious issue of interpretation of the Convention or (2) clear error on the part of the domestic courts (see paragraph 23 (c ).

The reaction to the publication of the declaration has been almost entirely negative. Leading non-governmental organisations have criticised it as being an attempt to marginalise and undermine the function of the Court and ultimately the Convention itself.  2  Commentators such as Bates and O'Meara in their analysis highlight the hidden dangers in the UK proposals which are considered in more detail below.

The draft declaration justifies the proposed changes by reference to the need to increase the efficiency of the Court, in order that it may continue to adjudicate on important matters regarding the interpretation of the Convention. In order to achieve that aim the three main proposals in the declaration are:

The margin of appreciation
1. The first proposal is that the doctrine of the 'margin of appreciation' be expressly written into the Convention (see paragraph 19 (b)). The margin is first and foremost an interpretative tool and a concept developed by the Court itself when seeking to strike the correct balance between the particularities of the national laws and practices and the universally applicable standards of international human rights law.  When allowing the State a 'margin of appreciation' the ECtHR recognises that in certain circumstances, usually issues relating to morality, social mores and national security, the domestic authorities may be better placed to decide on the application of the Convention. The Court decides itself when the margin applies and whether it should be wide or narrow, depending on the particular issues in any case. The danger with its inclusion in the Convention would be that it would invariably be claimed by state parties in every case. In any event such a proposal ignores that the margin is not to be claimed by the State but that it may be granted by the Court in a finely balanced case.  This proposal is dangerous and one which could impact significantly on the supervisory role of the ECtHR..

Subsidiarity
2. A second key proposal in the draft declaration is that the principle of subsidiarity, which has been the subject of so much consideration in the UK courts, is incorporated into the Convention (paragraph 19 (b)). Under that provision the Court's decisions become 'an authoritative interpretation of the Convention'.  A comprehensive critique of the draft declaration published in late February  points out that this is a significant dilution of the ECtHR's powers. The Court is charged under the Convention with providing the authoritative interpretation.  That is the role of the Court as the body charged with supervision of the Convention.  Any attempt to introduce subsidiarity as a principle of the Convention reflects the tensions around the desire to defend primary legislation without properly recognizing the way in which supervisory mechanisms under international human rights treaties, by their nature, require that elements of state sovereignty be relinquished.

'Serious' cases only
3. It is alos proposed that consideration by the Court is limited to 'serious' cases only.  This proposal is also of concern because it will invariably lead to the Court dealing with with a limited number of issues and in particular is designed to avoid it revisiting substantive issues on which it has previously decided.  The Court, mirroring the common law jurisdictions, revisits and refines the parameters of substantive rights through its case law.  For example, its case law on transsexual rights evolved over 15 years.  It is not clear that the draft declaration would permit such an evolutionary exploration of rights over a number of applications.   But it is a worrying proposal also because it implies that the Court operates  a hierarchy in terms of the substantive rights in the Convention and negates the fundamental principle that any breach which cannot be remedied within the domestic arena can be challenged by way of the right of individual petition, to the ECtHR itself.  While it has to be accepted that there is a need to remove the so called clone cases, limiting the Court in this way must be viewed as likely to impact negatively on the breadth of decisions and the reach of the Convention itself.

It is clear that the proposals in the Brighton Declaration are informed by a perception that the protection of human rights is essentially a matter for domestic courts and the executive. There is nothing new or controversial about that kind of approach. Indeed the Convention itself recognises that its role is supervisory and that the primary responsibility lies with the states.   But the substantive proposals of the declaration will undermine the core principle of the Convention itself which is that international supervision is a central plank of the protective framework established under the treaty.

Protection of Convention rights is achieved by effective implementation of the Convention in the laws and practices of the executive and the adjudication on the application of such laws and practices by the judiciary. However, the concept of international supervision is well-established. It is a process which cannot the reversed. Any attempt to reduce the role and function of the Court is based on an outmoded concept of exceptionalism which sends completely the wrong message to other member states.    The ECtHR has provided a safety net to individuals in this jurisdiction when the domestic mechanisms have not properly or fully upheld their rights.  The decisions of the Court when determining applications from other jurisdictions inform the interpretation of the Convention across all 47 jurisdictions.    The Brighton Declaration seeks to curtail the individual right to petition the Court in a way which does not address the real difficulties which the Court is facing.

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[1] For an excellent analysis of the issues in the declaration see  O'Meara, N, Reforming or Redefining the European Court of Human Rights, 8th March 2012, at www.ukhumanrightsblog.com.  Similarly see also Bates, N Who should have the final word on human rights?  6th March 2012, at www.ukhumanrightsblog.com .

[2] See ' Joint NGO preliminary comments on the first draft of the Brighton Declaration on the Future of the European Court of Human Rights, by Amnesty, EHRAC, Justice, Liberty, INTERIGHTS, International Commission of Jurists, Redress, dated 5th March 2012.