Analysis: the ‘Brighton Declaration’ and reforming away the ECHR

by Joseph Markus

It’s odd, isn’t it, that such an urge to reform this institution has coincided with the stewardship of a Government that is overtly hostile to the institution.

In fact, thinking it through, it really isn’t odd at all. The whole thing is coldly logical: when you dislike something, the best and perhaps only time to do anything effective about it is when you have some power. This is what the Tory-led Government is doing to the ECHR. It is quietly seeking to circumscribe the reach of the Court into national life.

The leaked proposals—the ‘Brighton Declaration’—seek to introduce a number of efficiency mechanisms into the system as well as to formalise the previously rather mysterious ‘margin of appreciation’ doctrine. A number of the proposals are, actually, not bad at all, such as the introduction of a type of default or summary judgment for obvious or repetitive applications (though the Court does have a mechanism very similar to this at present). And many of the general statements of principle contained within the document are, in themselves, unobjectionable.

The real difficulties arise from just a few proposals hidden amongst much of the otherwise trite verbiage.

One proposal is to introduce (non-binding) advisory opinions, much as in relation to the Court of Justice for the EU (except those ‘preliminary references’, as they’re termed, are very much binding). However, if a national court were to make a reference to the Court for an advisory opinion under this proposal, the UK Government would not want to allow the individual the right to apply individually as well. So, upon receipt of a non-binding opinion a national court could safely ignore it, and any right the individual may have to go back to the Court would no longer exist. This obviously puts the individual into something of a bind.

There is a further initiative to formally incorporate the nebulous margin doctrine, and a concept of ‘subsidiarity’, within the Convention. These, of course, are doctrines that the Court itself invented and which it uses regularly to dispose of applications. The Court is of the view that there is no need to put this in the Convention. I’m inclined to agree. I can’t see what practical effect this would have except that Respondent States, in front of the Court, would have another (unhelpful) argument against the finding of a violation. The concept would remain just as indeterminate as before and would still depend, and entirely so, on the interpretive judgment of the Court. Though maybe including this within the Convention will satisfy some of the Tory backbenchers who are still highly critical of the ECHR and of David Cameron’s approach towards it, and perhaps this is the real reason for the recommendation.

A number of other proposals seem to suggest things that already exist in the case-law and infrastructure of the Court, such as calls for a comprehensive jurisprudence on exhaustion of domestic remedies—something which has existed since the case of Akdivar and Others v Turkey from 1996.

It calls for further criteria for inadmissibility. In particular the draft expresses a desire that, where a matter has already been examined by a national court taking into account the Convention, the Court should not intervene except where the national court has made a clear error, or the application raises a serious question affecting the interpretation or application of the Convention. The Court’s response to this is the obvious one: in order to determine whether a state court has made a material error in applying the Convention a more than merely cursory assessment of the case will be required. In that light it seems that this particular criterion for inadmissibility will not help in reducing the Court’s ballooning application pool.

The one thing which does seem like it will do more harm than good (rather than have no real impact) is tucked away at the end of the document.

In paragraph 42(e), in considering proposals for the future of the Convention system, the Government recommend, first, giving the Court discretion to select applications it will consider (much like the Supreme Court of the US) and, second, mandating the Court only to consider those applications that are not the subject of well-established case-law.

Problematically for these proposals the ECHR system is nothing like the US courts system. In that structure there exist numerous state and federal appellate bodies. All plaintiffs, therefore, get a fair go. That can’t be said for the structure of rights-protection in Europe. Gaps exist such that if the Court declined to take a case from, for example, Russia, there would exist no other judicial recourse for the unsuccessful applicant. If the Court doesn’t hear them, no-one will.

Allowing the Court that discretion seems bad enough. But the Government wants to restrain it further with a mandatory requirement not to consider certain applications. Part of the point of a supranational authority, such as the ECHR system, is to provide for a final check. I don’t want to say very much more on this, other than that by limiting which cases the Court can hear there is an inevitably high risk that some deserving applicants will fall through those newly-sculpted cracks.

The proposed changes are big on rhetoric and slim on substance. The primary effect of the reforms would be non-legal: trying to keep the Tory backbenchers happy and Strasbourg at bay. Nevertheless there are some more worrying components to them which deserve to be thoroughly torn apart in open and informed debate. There is a debate to be had about the future of the Court, but, at the same time, we must be careful not to compromise the future of human rights in Europe.

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