Council of Europe (UK Chairmanship)

Debate between Robert Walter and Edward Leigh

Thursday 27th October 2011 Commons Chamber

[Mr Robert Walter (North Dorset) (Con)]

As the Minister for Europe said in his opening remarks, this is an interesting week in the House of Commons when we have two debates on Europe. If I may say so, it is good that we are debating Europe, and not necessarily the European Union, today, although I will touch on the relationship between the Council of Europe and the European Union.

As we have already heard, the Council of Europe dates back to 1949 and is very much dedicated to democracy, human rights and the rule of law. We can be proud to have been one of its founding fathers. It now runs to 47 member states across the continent of Europe. The only states that are not members are Belarus, Kosovo and Vatican City—which I understand is not yet a democracy.

[Mr Leigh]

Nor should it ever be. [Laughter.]

[Mr Walter]

As the hon. Member for Wolverhampton North East (Emma Reynolds) pointed out, the fact that there are 47 member states means that it will be 23 years before we get the chairmanship of the Committee of Ministers again. It is therefore very important that we make good use of our six months in the chairmanship that starts in a week or so.

This House, as has been pointed out, is represented in the Parliamentary Assembly of the Council of Europe. Eighteen Members from both Houses of Parliament serve as full members of the Parliamentary Assembly and a further 18 stand ready as substitutes.

--- Later in debate ---

[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.

[Mr Leigh]

The European Court often gets blamed unfairly for judicial activism, but the real judicial activism is happening in our own courts, because the convention is incorporated in our law. That was the big mistake, and I am constantly referring to it, which is why I intervened earlier. In a sense, the focus of the debate is wrong. We cannot focus only on the Court in Strasbourg; we must also focus on our own courts.

[Mr Walter]

My hon. Friend is absolutely right. That is why the Government were right to set up the commission on a Bill of Rights, which will consider whether the Human Rights Act 1998 should be replaced by a British Bill of Rights that better reflects the sentiments he expresses.