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What will the UK’s proposed ECHR reforms actually come to?

29 February 2012

11:14 AM

29 February 2012

11:14 AM

Two items of news that may unsettle stomachs in Euroland today: i) that Ireland is
planning to hold a referendum on the new European fiscal treaty, and ii) that the UK is
pushing — as April’s European summit in Brighton approaches — for the European Convention on Human Rights to be rewritten so that national courts have greater discretion and power. The
BBC’s James Landale has more details on the latter here, but the basic point is that the government has circulated a ‘position
paper’ that proposes injecting a few principles and particulars into the ECHR. One of these is ‘subsidiarity’, the idea that decisions should be made at the lowest level possible.
Another is ‘the margin of appreciation’, by which national courts would have more leeway in interpreting the convention. But the most significant is that Strasbourg shouldn’t,
generally, be able to involve itself in cases that are ‘identical in substance to a claim that has been considered by a national court’.

The French paper Le Monde, when it reported on a leaked copy of the position paper a couple
of days ago
, described this as a ‘threat to the European Court of Human Rights’. But how meaningful a threat is it? The fact is these are still just proposals, and they will go
through a process of discussion and debate across Europe in the seven weeks running up to Brighton. A final text will then be produced which will require the agreement of all 47 member countries of
the Council of Europe before it is actually implemented. Which, of course, implies a whole lot of dilution in the meantime, much of it encouraged and directed from Strasbourg. As Joshua Rozenberg
observed in a useful blog post yesterday:

‘The Strasbourg judges have no problem with the principle of subsidiary or the margin of appreciation. But as Sir Nicolas Bratza, the court’s president, told me in January, the judges
are not prepared to relinquish their ultimate authority. In the judges’ view, they and not the member states should decide whether a case should be decided in Strasbourg or resolved at local

So perhaps we will end up with something that suits both halves of the coalition politically. David Cameron gets to make some reforms to the ECHR and demonstrate how he’s trying to
prevent Abu Qatada-type situations in future; while Nick Clegg can be fairly sure that the current proposals will be watered down. But whether this outcome will suit their backbenchers, or the wider
public, is another matter altogether.

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