European Court of Human Rights

Thursday 24th March 2011 Lords Chamber

Question

11:22

Asked By

[Lord Marlesford]

To ask Her Majesty’s Government what means exist for them to challenge judgments of the European Court of Human Rights which have overruled decisions of the United Kingdom Supreme Court in ways which the Government consider unfounded in law.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, if a Chamber of the European Court of Human Rights gives a judgment against the United Kingdom, we may request referral of the case to the Grand Chamber. Grand Chamber judgments and Chamber judgments that have become final because there has been no request for referral, or because a request has been rejected, are binding on the parties and not subject to any further challenge.

[Lord Marlesford]

My Lords, I thank my noble and learned friend for that Answer. While we all obviously favour and support human rights, and endorse the role of the judiciary in supporting them, does he agree that the performance of the European Court of Human Rights has done little to enhance its reputation? Perhaps I may give him an example from an Answer given recently to the noble Lord, Lord Hylton, about seven people whom the previous Government sought to have extradited to the United States on terrorist accusations. This was between 2007 and 2009, and the European Court of Human Rights is still considering those cases. Is it really conceivable that it can take up to four years to consider such a case and is it surprising that, as a result, people are beginning to think that the European Court of Human Rights is weak on law but strong on politics?

[Lord Wallace of Tankerness]

My Lords, with the kind of cases that the European Court of Human Rights deals with, its judgments can inevitably be supported in some cases—as indeed they have been in many cases by the public—and not supported in others. On the point that my noble friend makes, the fact that there is a backlog of around 140,000 applications suggests that something is not working effectively. That is why the Government are committed to supporting and building on the process of court reform which is already under way in Strasbourg. As part of that reform process, the Government wish to see a strengthening of the principle of subsidiarity; that is, that the convention should principally be implemented at national level.

[Lord Anderson of Swansea]

My Lords, does the Minister agree that that backlog has been caused in part by Georgia and Russia flooding the court with applications and that there are new procedures in place to deal with it? Will he also confirm that we in the United Kingdom have an exemplary record, albeit with a delay in one case, in responding to judgments of the court and not seeking to pick and choose? If we now refuse to implement the judgment in respect of the rights for prisoners instead of negotiating to see what the best outcome is, what effect does he think that will have on serial defaulters such as Russia and Turkey when until now our record has been exemplary?

[Lord Wallace of Tankerness]

My Lords, the noble Lord makes an important point: this country’s implementation of ECHR judgments has been very good and consistent with our obligation to respect and implement our international treaty obligations. He referred to the number of additional cases. The process that was started at Interlaken, where the United Kingdom was represented by the distinguished former Attorney-General, the noble and learned Baroness, Lady Scotland, is under way, and it is hoped that when Britain has the chairmanship of the Council of Europe for six months starting in November this year, we will be able to build on these reforms.

The Government’s position on prisoner voting has been set out, but we have also requested that the court’s judgment in the case of Greens and MT v UK should be referred to the Grand Chamber of the European Court. If the Grand Chamber agrees to the referral, it will look at the case again and issue its own judgment.

[Lord Thomas of Gresford]

My Lords, given that there are 250 applications to the Supreme Court for appeals in this country and 2,700 applications from the United Kingdom to the European Court, do the Government have any plans for having two or three more divisions of the Supreme Court in this country, perhaps sitting in Downing Street, to hear human rights cases as a court of final appeal, with full legal aid, and thus give some succour to the legal profession?

[Lord Wallace of Tankerness]

My Lords, I am not aware that the Government have any plans to set up such additional divisions of the Supreme Court, but I am sure that the point made by my noble friend will have been noted by the Ministry of Justice.

[Lord Scott of Foscote]

My Lords—

[Baroness Scotland of Asthal]

My Lords, following the work that we commenced in Interlaken, is there now a timetable for reform? What specific measures do Her Majesty’s Government intend to take with others to ensure that the ECHR is as robust as we would all like it to be?

[Lord Wallace of Tankerness]

My Lords, as I have indicated, we hope that during the period of our chairmanship of the Council of Europe we will be able to take forward the reforms. All 47 members of the council believe that there ought to be reforms. We want to look at ways in which we can make the court more effective and efficient in dealing with the backlog and, as I have said, to reinforce the idea that the court’s role should be a subsidiary one; namely, that member states should have the primary responsibility for protecting convention rights in their own country. We hope that we can make progress on that during our chairmanship.

[Lord Neill of Bladen]

My Lords, will the Minister comment on the position of the Supreme Court? So far he has talked about government action, but the Supreme Court said in 2009, in a case called Horncastle, that it can decide not to follow a decision of the court in rare cases where that court has failed to “appreciate or accommodate” particular aspects of our domestic process. In such a case the Supreme Court can refuse to follow it, giving reasons, in the hope that that will then be picked up in a subsequent judgment by the court in Strasbourg. Do the Government have a position on whether that is a satisfactory arrangement?

[Lord Wallace of Tankerness]

I think that the specific case to which the noble and learned Lord refers has been heard by the Grand Chamber and a decision is awaited. The position under the Human Rights Act is that while our courts are not obliged to follow the precedent set, they must give proper consideration to it. In the more recent case of Pinnock, the Supreme Court indicated that it would generally follow Strasbourg’s decisions unless there were good reasons for not doing so.