AN INITIATIVE from the British government to curb the powers of the European Court of Human Rights (ECHR) which causing considerable concern in human rights circles has been attacked as dangerous by the Secretary General of the Council of Europe, Prof Daniel Tarschys.

Dr Tarschys warns that the proposals could lead to a fundamental undermining of the principles of the European Convention on Human Rights.

Reflecting general Euro scepticism at home as well as anger at the decisions of the court in the Gibraltar IRA case and others, Britain is pressing for a wider application by the court of the principle that member states, should have a broader prerogative in interpreting the principles of human rights law.

Simultaneously it has been seeking in the Inter Governmental Conference to roll back the authority of the EU's Luxembourg based Court of Justice last year, following the Gibraltar decision deputy prime minister Michael Heseltine even threatened British withdrawal from the ECHR.

The legal subsidiarity principle has already been extensively developed by the ECHR case law in its doctrine of the "margin of appreciation" effectively a judicial benefit of the doubt which accepts that the court will set out the principles of human rights while allowing member states the business of drafting appropriate detailed legislation.

But, on moral issues such as homosexuality and pornography, the court has also been willing to accept that different standards should apply to different countries, depending on cultural circumstances.

,Human rights activists argue, that to extend the principle of the margin of appreciation at a time when Russia has just been admitted to the Council of Europe, and the West is preaching to countries like China the virtues of universal standards and the international supervision of human rights, is to send out a profoundly wrong signal.

THEY say that in trying to placate Tory Euro sceptical, backwoodsmen, the British government is willing

"cynically" to jeopardise the common standards that are the back bone of the convention which Britain helped to draft.

"What I find risky about the British proposal," Dr Tarschys told The Irish Times is that we should accept very different national positions. That thesis could lead very far if you applied it to countries with very different legal traditions. And there are certainly traditions that we can under no circumstances condone." In its submission to member states Britain argues that the court "should give full weight" to the principle of the margin of appreciation and "respect the decisions of local democratic institutions and tribunals which are best placed to determine moral and social issues in accordance with regional and national perceptions.

"Full regard should be paid to decisions by democratic legislatures and to differing national" perceptions. Long standing laws and practices should be respected except where these are manifestly contrary to the convention" the submission argue.

Irish diplomatic sources say that both the timing and content of the proposals caused a "frisson" among the member states and that, although a decision has yet to be made, it is very unlikely that Ireland will support them.

Senior Irish legal sources warn, however, that Dublin would be unwilling to see any dilution of, the current margin of appreciation and that other member states such as France, Switzerland and Sweden are likely to be sympathetic to the British case.

Diplomats and lawyers argue that the margin of appreciation is crucial to the acceptability of the court in member states with differing traditions and prevents the court from running ahead of public opinion, the key issue is where the court draws the line.

British sources admit that the "presentation" of their proposals may have been unfortunate, but claim that their intention is certainly not to allow countries like Russia "off the hook". They maintain that by applying the margin of appreciation differently on a case by case basis, as the court does at present, there need be no dilution of fundamental human rights.

Asked about how they intend to bring about a change in the jurisprudence of the court, British, sources accept that their original proposal to get a resolution through the Council of Europes' Council of Ministers is not a runner. Such a resolution could be seen by the court as a political interference in its prerogative

Now the emphasis is on an attempt to persuade the court itself to write into the rules of procedure of the new court a recognition of the principle of the margin of appreciation. Yet it is difficult to see how such a general statement would actually change the line taken by the court on issues.

Critics of the British position argue that were the country to incorporate the convention into British law, then the bulk of cases which now come to Strasbourg would no longer do so.

British courts would have authority to adjudicate on convention issues only appeals would end up in Strasbourg.

To date only Britain and Ireland have refused to incorporate the convention, but in the Irish case a written constitution means that many issues can still be dealt with domestically.

The British are also proposing two changes to the court procedures that are likely to win wide, support. On the one hand they want the new merged court (see panel) to set out in writing in advance of oral hearings the issues about which the court is most perturbed. (In the Gibraltar case the British claim they were wrong footed because they believed the line finally taken by the court that there was negligence in the planning of the operation was not sufficiently argued as an issue before the court.) More significantly, the British are also seeking better advance scrutiny of those being nominated as judges.

SOURCES cite the recent nomination by Romania of three judges seen as completely inappropriate by the Council of Europe's Parliamentary Assembly it has the right to elect one judge from a list of three submitted by the member states.

In order to spare the Romanians the embarrassment of seeing all their nominees voted down the assembly simply pretended that it had not received the nominations and a new list was forthcoming.

Last week the assembly approved new procedures to vet nominees, requiring member states to present standard curriculum vitae and the judges to face parliamentary sub committee hearings.