IN LETTING fly at the European Court of Human Rights on Wednesday, British prime minister David Cameron was playing two games. On the one hand, a largely cost-free opportunity to placate backbench Europhobes for whom the court, though a child of the Council of Europe not the EU, represents another example of foreign intrusion. On the other, as current ouncil chair, there was also a more broadly welcome attempt seriously to address streamlining the work of the overburdened court with its 150,000-case backlog. Separating the two imperatives is important.
Cameron’s main focus was on the content of court decisions – it recently declared, to Tory outrage, that prisoners are entitled to vote, and told the UK that it could not extradite a prisoner to Jordan because he would not get a fair trial. Such rulings are in danger of corroding peoples’ support for civil liberties, he warned the council’s parliamentary assembly. “At times it has felt to us in national governments that the ‘margin of appreciation’ – which allows for different interpretations of the convention – has shrunk, and not enough account is being taken of democratic decisions by national parliaments.”
The danger is that a dramatic broadening of the breadth of a national “margin of appreciation” would dilute core universal standards of the European Convention on Human Rights. And the definition, in any case, must remain a matter for the court, not for politicians.
On the other hand, Cameron is right to draw attention to process, and to the reality that the court simply cannot handle its workload. His suggestion that the court, like the US supreme court, might get the right to decline to consider cases that went over ground already decided merits consideration. But such a move would need to depend on clear evidence that national courts are consistent in upholding convention values, not an assumption that can be made for all. A Dutch representative pointed out that 70 per cent of pending applications before the court came from six countries: Italy, Poland, Romania, Russia,Turkey and Ukraine. “Structural deficiencies” in these countries are perpetuating the court’s backlog, he argued. Members of the assembly endorsed the idea that the court should “prioritise” cases in such countries, although how it could do so is unclear.
Reform of the court is clearly needed but must not impinge on the equal right of all citizens to access to it – Cameron’s idea that cases should lapse if not dealt with within, say, two years would clearly not pass that standard. But the initiation of debate is welcome.