The article argues that the Conservative party proposals to withdraw UK from the European Convention on Human Rights is not just legally illiterate but unsupported by empirical evidence that UK laws are regularly 'overturned' by decisions in the European Court of Human Rights

Ressel, James

English

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This work has been submitted to NECTAR, the Northampton ElectronicCollection of Theses and Research.ArticleTitle: Good news! The Strasburg Court does not overrule UK laws after allCreator: Ressel, J.Example citation: Ressel, J. (2015) Good news! The Strasburg Court does notoverrule UK laws after all. Law, Culture & Ideas Blog. 01/02/2015It is advisable to refer to the publisher's version if you intend to cite from this work.Version: Published versionOfficial URL: https://lawcultureblog.wordpress.com/2015/02/02/good-news-the-strasburg-court-does-not-overule-uk-laws-after-all/Note:This work is licensed under a Creative Commons Attribution-NonCommercial 4.0International License.http://nectar.northampton.ac.uk/7268/NECTARLaw, Culture & Ideas02 /02 /2 01 5  · 1 2 :4 0 A MGood News! The Strasburg Court does notoverrule UK laws after all.The forthcoming election campaign in UK may well include promises by the Conservative Partyto withdraw from the European Convention on Human Rights (‘ECHR’) should the party winthe next election.The original proposals to withdraw from the Convention were launched at the ConservativeParty conference in October 2014 but instantly denounced as legally illiterate and based onnothing more that fundamentally flawed misunderstanding of human rights jurisprudence.In short the proposals nev er made sense, were full of legal howlers and were not supported by  any  crediblelegal authority . Moreov er the proposals disregarded the implications for the constitutional structure ofUnited Kingdom.It now transpires that not only  are the proposals legally  illiterate but there is in fact no empirical ev idenceto suggest that UK has been subject of especially  harsh treatment by  the European Court of Human Rights(‘The Strasburg Court’).Ironically , we may  need to pay  homage to effect of the recently  introduced Rule 47  of the Rules of theStrasburg Court in helping us to realise that the suggestion for UK to withdraw from the ECHR amounts tojust a moment of legal insanity  and political contempt for the notion of human autonomy  and democraticself-determination.On 29 January  201 5 the Court published its Annual Report for 201 4. The report included a statisticalanaly sis on a country  by  country  basis of the number of cases brought against it and enumerated thenumber of judgments where the state in question was held to hav e v iolated the rights of its citizens. UK wassubject to only  four adv erse judgments last y ear in contrast to the highly  ranked Russian Federation whichwas held to be in breach of its Conv ention obligations in 1 29 cases closely  followed by  Turkey  facing 1 01adv erse judgments. [1 ]The legal justification for the Conserv ativ e Party  proposal to withdraw from the Conv ention was the claimthat the Strasburg Court “has ov er time dev eloped a ‘mission creep’” inv olv ing itself in dev eloping andextending the scope of the Conv ention bey ond the intentions of the original framers of the Conv ention.Moreov er the Conserv ativ es claimed that the Strasburg Court regularly  goes bey ond the intention of theConv ention because it regularly  ov erturns decisions of UK courts and ov errules laws passed by  UKParliament [2]. It now transpires that a statistical analy sis of the cases dealt with by  the Court last y earprov ides no ev idence whatsoev er to support this claim.As we may  recollect, the proposals were heav ily  criticised, most prominently  by  Dominic Griev e [3], interalia as legally  illiterate [4] sloppy  and riddled with howlers which would not be made by  any  competentlaw undergraduate.A v iv id example of an obv ious legal howler is a misreading of the well known case of Vinter & Others v UK[5]. The case was decided by  the Court in 201 3  and dealt with the legality  of non-rev iewable life sentences.The Conserv ativ es asserted that as a consequence of the decision in Vinter: “…murderers cannot besentenced to prison for life, as to do so was contrary  to Article 3  [6] of the Conv ention. This Article isdesigned to prohibit “torture” and “inhuman or degrading treatment or punishment.” For the StrasbourgCourt, this entails banning whole life sentences ev en for the grav est crimes.”[7 ] This claim is simplyuntrue and legally  wrong based on a faulty  but politically  motiv ated misreading of the case.As Professor Alison Young explains the judgment does not in fact say  that life sentences are banned or thatthose serv ing life terms must be released. What the Court decided was to ban life sentences without rev iew.She writes that “…what is banned is a life sentence without a review after 25 years of that sentence. I f there aresound penological grounds for continued detention, the prisoner remains in detention.”[8]The Conserv ativ e proposal also asserted that under Section 3  of the Human Rights Act 1 998 once the UKcourts had construed legislation so as to be compliant with the Conv ention the will of Parliament wasov erborne. This is claim is legally  illiterate and plainly  wrong. In fact there is nothing in the 1 998 Actwhich stops Parliament from passing legislation rev ersing an incompatibility  judgment (see Section 4).Accordingly , the proposition that the Strasburg Court’s use of the liv ing instrument doctrine to interpretand apply  the European Conv ention on Human Rights amounts to a ‘mission creep’, and an attack on thelaw making sov ereignty  of UK Parliament and is oppressiv e of UK courts amounts to nothing more than ahollow cry  in the dark.The fact is that, as Owen Bowcott reports, of all the member states of the Council of Europe, UK had thehighest number of judgments confirming that it was not  in breach of its obligations under the Conv ention.That is to say , that only  in four out of  1 4 judgments was UK held to be in breach of a human right protectedby  the Conv ention.[9]In his article Owen Bowcott publishes a number of useful tables summarising the statistical informationproduced by  the Court.[1 0] The table below shows the absolute numbers and percentages of adv ersejudgments against indiv idual states. We can see that the Russian Federation accounts for 1 4.4% of allv iolation judgments followed by  Turkey  at 1 1 .3% and Romania at 9.7 %. UK does not feature in this table asits percentage of v iolation judgments is well below 1 %. [1 1 ]The ev idence indicates that the UK is not a country  regularly  found to be in breach of its Conv ention and assuch any  fear that the Gov ernment has of interference (real or perceiv ed)  in domestic law making by  theEuropean Court of Human Rights is entirely  without foundation in fact.Moreov er, as it is clear that the European human rights jurisprudence is fully  aligned with andsy mpathetic to UK human rights law, it follows that any  call for a separate legal instrument such as theproposed ‘British Bill of Rights’, intended to operate as a metaphorical and a legal dam stemming the influxof European jurisprudence cannot be justified in law or reason.Furthermore, it seems that the Strasburg Court itself has taken effectiv e administrativ e steps to discourageapplications in the interests of efficiency , if not justice.In his speech to the press on 29 January  President of the Court, Dean Spielmann proudly  described theeffect of Rule 47  in actually  discouraging applications to the Court. In his speech on presenting the Court’sAnnual Report President Spielmann, reported good progress being made in reducing the backlog ofoutstanding cases and expressed satisfaction that the introduction of more stringent requirements for thelodging of applications had resulted in fewer cases reaching the Court, a drop of some 3% ov er the y ear. [1 2]“The lessons we can draw from 201 4 are the following. First, a decrease of around 3% can be observ ed inthe number of incoming applications.Second, the Court implemented a policy  whereby  the lodging of applications is made subject to morestringent conditions. Failure to meet these conditions, set out in the new Rule 47  of the Rules of Court,will result in the applicant’s complaints being rejected without being examined by  a judge. I wouldstress that applicants whose applications are rejected under Rule 47  are fully  entitled to lodge a newapplication, prov ided that it satisfies the conditions laid down.Nev ertheless, the fact of processing only  those applications which are properly  presented represents aconsiderable efficiency  gain. A total of 56,250 applications were allocated to a judicial formation, a 1 5%reduction compared with the prev ious y ear. The Court ruled in ov er 86,000 cases. The number of casesdisposed of by  a judgment remains high: 2 ,388, compared with 3 ,661  the prev ious y ear. At the end of201 3  there were some 1 00,000 applications pending.That figure was down by  30% at the end of 201 4, standing at 69,900.Half the pending applications –35,000 – are repetitiv e cases. In addition, 8,300 applications (1 2%) willbe dealt with under the single-judge procedure”  President Dean Spielmann, Press Conference Speech 29January 2015. [1 3]The drop in the number of pending applications is neatly  illustrated in the table below published by  TheGuardian. [1 4]Owen Bowcott has extracted the statistics for UK and writes that in 201 4 of the 1 ,997  cases lodged againstUK 98.7 % meaning 1 ,97 0 actual cases “were declared inadmissible or struck out.” Further, “[o]f the 1 ,243UK applications pending for judicial assessment at the end of last y ear, ov er 1 ,000 relate to v oting rights forprisoners – the unresolv ed issue that has prov oked a bitter stand-off between the UK parliament and theECHR.”[1 5]The figures produced by  the Strasburg Court suggest that contrary  to the UK Gov ernment’s assertions, thenumber of UK cases admitted to the Court for a hearing is actually  v ery  few.  The fear of  re-entry  of civ iljurisprudence into UK common law appears quite unfounded and in no way  threatening the logicalcoherence of the operational closure of UK common law, manifest in notions of consistency , stability ,predictability , equality  and ideas of precedent and treating like cases alike.Furthermore, the Strasburg Court itself has adopted extra-legal economic principles of economic efficiencyfocusing on speed of process of adjudication and disposal of cases, rather than dev eloping a transcendentnotion of juridical justice. This suggests that its allegiance is to a non-reflectiv e positiv e law process,  apositiv e interpretation of a text at the risk of a juridical  closure  (focusing on internal consistency  anddoctrinal interpretativ e stability ) in deliberate ignorance of the ecology  of human rights jurisprudence, thev ery  env ironment that nourishes the essential sense of human freedom. [1 6]If one were a cy nic (in the modern sense) it may  be possible to conclude that the UK Gov ernment doesprotest too much in seeking to reject the ECHR because ironically  it is far too close to it.Links and Notes:[1 ] European Court of Human Rights, Annual Report 201 4 (Av ailable athttp://www.echr.coe.int/Documents/Annual_Report_201 4_ENG.pdf )[2] J Ressel ‘Human rights, the law, common sense and the question of freedom.’ Law, Cult. & Ideas Blog (8October 201 4) (Av ailable at https://lawcultureblog.wordpress.com/ )[3] See for instance the BBC Radio interv iew with Dominic Griev e, the former Attorney  General, recordedon 3  October 201 4. (Av ailable at http://www.bbc.co.uk/news/uk-2947 27 50 )[4] See Liberty  ‘Legally I lliterate’ (Av ailable at https://www.liberty -human-rights.org.uk/news/latest-news/legally -illiterate )[5] Av ailable at http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001 -1 22664#{%22itemid%22:[%22001 -1 22664%22]}[6] Article 3  of ECHR prohibits torture, or inhuman or degrading treatment or punishment withoutreserv ation. (Av ailable at http://www.echr.coe.int/Documents/Conv ention_ENG.pdf )[7 ] Protecting Human Rights in UK (Av ailable athttp://www.theguardian.com/politics/interactiv e/201 4/oct/03/conserv ativ es-human-rights-act-full-document )[8] A. Young, ‘HRA Howlers: The Conserv ativ e Party  and Reform of the Human Rights Act 1 998’ U.K.Const. L. Blog (7 th October 201 4) (Av ailable at http://ukconstitutionallaw.org )[9] Owen Bowcott, The Guardian, 29 January  201 5 ‘UK broke law in fewer than 1 % of European humanrights cases in 201 4’ at http://www.theguardian.com/law/201 5/jan/29/uk-broke-law-european-human-rights-cases-201 4[1 0] Ibid.[1 1 ] The Guardian, 29 January  201 5 – Guardian Graphic at:http://static.guim.co.uk/ni/1 4225603541 98/ECHR_v iolation_judgement.sv g[1 2] President Dean Spielmann, Press Conference Speech, Strasbourg, 29 January  201 5 (Av ailable athttp://www.echr.coe.int/Documents/Speech_201 501 29_Press_Conference_201 5_ENG.pdf )[1 3] Ibid.[1 4] The Guardian, 29 January  201 5 – Guardian Graphic at:http://static.guim.co.uk/ni/1 4225603541 1 8/ECHR_pending_judicial_rev ie.sv g[1 5] Owen Bowcott op. cit.[1 6] Gunther Teubner ‘Self-Subv ersiv e Justice: Contingency  or Transcendence Formula of Law?’ TheModern Law Review  2009 Vol 7 2, No 1 , pp 1 -23Suggested citation: J Ressel ‘Good News! The Strasburg Court does not ov errule UK laws after all.’ Law,Cult. & Ideas Blog (1  February  201 5) (Av ailable at https://lawcultureblog.wordpress.com/ )Share this:Facebook Twitter LinkedIn More    Reblog  LikeOne blogger likes this. RelatedHuman rights, the law,common sense and thequestion of freedom.Aysha King - MedicalTreatment and the notion of'neglect'.Democracy and rule of law:The Hungarian goulash.In "Democracy"In "Children Act 1989"In "Charter of FundamentalRights"

Av ailable at

HRA Howlers: The Conserv ativ e Party and Reform of the Human Rights Act 1 998’ U.K.

of ECHR prohibits torture, or inhuman or degrading treatment or punishment without reserv ation. (Av ailable at http://www.echr.coe.int/Documents/Conv ention_ENG.pdf )

Protecting Human Rights in UK (Av ailable at http://www.theguardian.com/politics/interactiv e/201 4/oct/03/conserv ativ es-human-rights-act-fulldocument )

Good news! The Strasburg Court does not overrule UK laws after all

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