Council of Europe (UK Chairmanship)

Debate between Brian Binley and Robert Walter

Thursday 27th October 2011 Commons Chamber

[Mr Walter]

I thank my hon. Friend for that point, because it sums up the fact that what I have described will bring into question the legitimacy of the decisions of the Committee of Ministers when it comes to enforcing judgments that have been handed down by the Court.

I want to move on to one aspect of the United Kingdom’s agenda for our chairmanship, with which the Minister also dealt at length. It is the reform of the European Court of Human Rights, which not only we in this country but many member states across Europe welcome.

There seems to be some dispute about what the backlog of cases in the Court is at the moment. The last figure that I heard, which was at the beginning of this month from the secretary-general of the Council of Europe, was 162,000 cases, and growing at the rate of 2,000 a month. I therefore welcome the approach that we are taking as the new chair of the Committee of Ministers.

[Mr Brian Binley (Northampton South) (Con)]

Is my hon. Friend concerned that most of us sitting in the Chamber today might not be here when the end of that list is reached? Does that bother him?

[Mr Walter]

I thank my hon. Friend for making that point, which brings me neatly to the next one that I wanted to make.

I welcome the work of the commission on a Bill of Rights under the chairmanship of Sir Leigh Lewis. It was set up to advise on a British Bill of Rights, but at the request of the Prime Minister the first document that it published was advice to the Government on the reform of the European Court of Human Rights. It has expressed a view on that question, and I shall come to that in a moment. I also welcome the interest taken by the Joint Committee on Human Rights, which I know has been to Strasbourg and met the Court and is considering that very important issue.

I wish to deal with four issues related to the reform of the Court. The first, to which a number of Members have alluded, is the quality of the judges. Under the existing procedure, each member state puts forward three nominees when there is a vacancy for a judge of that nationality. Under the new procedures, those candidates are to be interviewed by the Committee of Ministers and by a sub-committee of the Parliamentary Assembly set up specifically for the purpose of making recommendations on which of the three judges is probably the best candidate. It then comes down to the Parliamentary Assembly to vote on those judges.

There has been phenomenal criticism in the Parliamentary Assembly that the judges nominated are not up to the quality that one expects in such an important court, which deals with human rights across the continent. Some of the judges are academics, and some are only what I would call administrative lawyers, but I believe that judges should have experience of sitting as court judges, preferably in the supreme court of their member state. They should not be people who have applied because they have been teaching a nice academic course specialising in human rights at a university for the past few years and thought, “Why not go to Strasbourg for a few years?” That is not the right way to select candidates.

The Parliamentary Assembly is considering another matter of some concern. If one of those judges drops out and is unable to perform his or her duties, the member state in question can nominate ad hoc judges to sit in their place in the Court. In the past four years, 77 ad hoc judges appointed to sit in for judges who were unable to be in Strasbourg were involved in 516 judgments. I am not sure, and there is some doubt, whether those ad hoc judges are of the same quality, because they do not go through the same selection procedure. They are not nominated, they are not interviewed either by the committee of Ministers or by the sub-committee of the Parliamentary Assembly, and they are certainly not voted for by the Parliamentary Assembly. I am not sure that the spirit of the convention is being implemented if we allow those 77 ad hoc judges to sit in judgment.

The second and most important point raised by my right hon. Friend the Minister for Europe was on subsidiarity and the filtering of cases, causing the backlog. Is the ECHR the final court of appeal for the 800 million people who live on the continent of Europe? I contend that it is not. I believe that it exists to act in partnership with our national supreme courts and that it should not be used as the final court of appeal. A number of members of the delegation met the secretary-general of the Council of Europe on Tuesday to discuss that. He said that—this is even worse—the majority of the cases before the Court involve people using it not as their final court of appeal, but their court of first instance. In the majority of cases, people are disgruntled by something that has happened in their locality—a remote part of Russia or wherever—and they do not use the Russian legal system first and foremost, but go straight to Strasbourg. We must stop that from happening.

People who appeal to the Supreme Court in this country, or even to the Court of Appeal on their way up to the Supreme Court, must seek leave to do so. We must create a situation like that. Requiring people to seek leave to appeal would mean that a judge in this country or another member state would determine whether such a case is admissible, or whether it should be heard by a national supreme court and whether that should be the end of the road.

--- Later in debate ---

[Mr Walter]

My hon. Friend is right to raise that point. We must strike the right balance—strike out spurious claims but not genuine ones. In some cases, those making genuine claims could be refused leave to appeal for, if I may say, political reasons, when their case should go to the Strasbourg Court. In this country, I have every confidence that the Supreme Court or any other lower court would act in the interests of the law and equity, but I might question the courts in a number of other member states—I will not name them in the Chamber.

My third point concerns the competence of the Court and its relationship with national Parliaments and sovereign member states. That the House debated and voted overwhelmingly against prisoner voting rights showed that we in this country feel that somebody committed to jail for an indictable offence should have their voting rights taken away while in prison. That is at variance with the judgment of the Court. I am not a lawyer, but in my view it is absolutely right that a court can sentence somebody to prison and so deny their liberty in several areas. In sentencing them to prison, we are not infringing most of their convention rights—for example, we are not infringing their right to life or imposing on them inhuman and degrading treatment. Instead, we are deciding to deny them certain liberties—for example, by not allowing them to go home to their family every night, we are denying them the right to a family life.

[Mr Binley]

Do the people sent to prison not have the choice about whether they go to prison, and should that not be a major consideration? Furthermore, is this not a constitutional right, rather than a human right? I know that that takes us on to aspects of law, but these are the things that make people very angry.

[Mr Walter]

Of course, my hon. Friend is absolutely right. This is the point that we are making. We could have a wider debate about why people commit crimes and why they go to prison, but my specific point is about the denial of liberty and what convention rights that denial of liberty impinges on. It is accepted that some rights in the convention can legitimately be denied. I am interested that Mr Hirst, when he went to Strasbourg, did not say that he was being denied the right to a family life by being in prison and ask why he could not have his wife and children there. He picked on one emotive issue—his voting and democratic rights—but I think that it is absolutely right that this Parliament decide the voting rights of prisoners, and if it decides that prisoners should not have a vote, so be it. That is part of our national sovereignty. It is a matter for national legislatures, not the Court.

My fourth point concerns the backlog. As I mentioned, the figure that I have is 162,000 cases, growing by 2,000 a month. I commend the commission on a Bill of Rights and its advice on this matter: it expressed concern that, whatever reforms we came up with for the Court, they would not deal with the cases currently in the system, and it recommended that we find a way to clear the backlog. One of the commission’s proposals, which is worth taking forward, is that across Europe are retired judges experienced in human rights law who might be brought out of retirement on, say, a one-year contract, subject to their being vetted, interviewed and so on, and that they be given responsibility solely for going through the list of 162,000 cases, deciding which are admissible and, if necessary, immediately sending them to the Court for judgment.