The European Court and Reform
In 1857 slavery was alive and well in the United States of America. Seeking his freedom a brave slave sued in Court in order to secure his family’s release. He failed. The Supreme Court of the United States ruled seven to two against the man, finding that neither he, nor any person of African ancestry, could claim citizenship in the United States. This tragic and incredibly racist decision was eventually overturned by an elected leader, Abraham Lincoln. The case is called Dred Scott v Sandford and it became a byword for judicial error.
The Emancipation Proclamation in 1863, and the post-Civil war Thirteenth, Fourteenth and Fifteenth amendments nullified the decision by abolishing slavery and ensuring no one could be denied citizenship based on the colour of their skin.
The Dred Scott decision indelibly blighted the reputation of the judge deemed responsible, Roger Taney, who was Chief Justice of the Court. It was the custom to commission marble busts of former Chief Justices but after Taney’s death in 1864 the United Stated Congress decided instead to leave an empty spot as a warning to others. When the matter was debated in 1865 Senator Charles Sumner of Massachusetts said “I speak what cannot be denied when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion.”
Ten years later Congress relented and a bust was commissioned but Taney remains a reviled figure in American history to this day.
C v Darwen
In December last year in this country the Court of Appeal in Cheshire West (judgement led by Munby LJ) and the Court of Protection in C v Darwen essentially said that persons with some mental disabilities would not be considered to be deprived of their liberties in circumstances in which a ‘normal’ person would be.
The reason given for this was that the restrictions on them arose from their disabilities and would be required wherever they lived. The absurdity of the decision is obvious – the safeguards against deprivation require proof of the disability and its degree. The argument is circular. Most disputes about the placements of disabled persons arise from arguments over the existence or degree of their condition. In extreme cases these unfortunate legal precedents could allow someone merely alleged to be disabled to be locked up without due process.
Dred Scott and Cheshire West are separated by over one hundred and fifty years of history as well as by the Atlantic Ocean. What they have in common is that they expose the unchanging nature of humanity. Even the most intelligent and kind human beings make mistakes. The cases are also linked by the fact that they were made by unelected judges, supposedly applying documents (the US Bill of Rights on the one hand and the Human Rights Act 1998 on the other) that guaranteed human freedoms.
Stanev v Bulgaria
These Court cases were in my mind when I read about David Cameron’s desire to reform the European Court of Human Rights (ECtHR). Cameron has a point. The Court does make some very good decisions such as the recent Stanev v Bulgaria case but it also makes some truly terrible decisions such as the one on allowing prisoners to vote.
The point about Stanev v Bulgaria is it was an important point of principle. It was about freedom. It found that persons allegedly lacking capacity to act legally should have the right to apply directly to a Court to have that capacity restored. That is the kind of case the European Court looks at and I hope will continue to look at.
Even Stanev, though, drew part of its reasoning from democratic action – “In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.”
There are many reasons why a democratic body like Parliament is able to make better quality decisions about points of principle. In the UK Parliament there are over 600 decision makers, each of whom employs several advisers. In the process of deliberation that precedes legislation experts, interest groups and the media become involved. Most Court cases on the other hand involve a single decision maker and at most a handful of experts.
My own MP Grant Shapps is a particularly good example of a decent politician. He is Housing Minister, a brief he has held for years. In 2009 during the expenses scandal that tainted Parliament, Grant was one of the few found to have behaved entirely properly. The Telegraph described him as an expenses saint. In 2007 Grant slept rough to help the homeless. In conversation with members of the public Grant is charming but with an encyclopaedic knowledge of housing law, policy and practice.
Even when people disagree with him Grant Shapps can at least point to some study or pilot or evidence that informs his decisions. I believe it is far happier for all if the likes of Grant take the great decisions of our age than the likes of Roger B Taney.
On the other hand, elected politicians can be disasters. See for example Diane Abbott MP whose recent twitter comments about race caused widespread condemnation. Or see Tom Harris MP whose forced resignation came swiftly after his involvement in a ‘joke’ video about Hitler. How quickly the Labour Party, like the left throughout its history, reaches for the politics of hate. These politicians too demonstrate the frailty of human virtue.
When Cameron and other Conservatives talk about the corrosive effects of ‘Human Rights culture’ on society what they are talking about is instances where the judiciary has unwisely entertained trivial complaints, where the problems of the individual petitioner are largely their own fault or where decisions are simply wrong. If a prisoner in jail is beaten regularly by the prison guards that is a breach of their human rights. If a prisoner in jail is deprived of a television that is a more complex question. Reasonable people could form different views.
When we talk about reforming the European Court of Human Rights we are really talking about finding a better way to make decisions that keep our society in line with a vision of justice that leads to human happiness and freedom. Conservatives have over the years suggested several measures –
The first is a British Bill of Rights that guarantees the rights of British people in our own words. The benefit of such a Bill is that European Law recognises that reasonable people can disagree about the great questions of our existence and so will defer to our own concept of rights when deciding cases. This is the so-called ‘margin of appreciation’ which in practice seems to have a similar meaning to the judicial phrase ‘ambit of discretion’.
Reasonable people can disagree on whether or not (for example) a sex-offenders register is compatible with Human Rights. Britain and America have enacted such measures and believe the register protects the Human Rights of potential victims. Germany, Spain and Italy do not have such registers and consider them in breach of Human Rights. The European Court has repeatedly held such registers are lawful.
In the UK critics have pointed out that the laws do not target the worst offenders and even 11 years olds have been placed on the register. In 2010 the UK Courts found that the requirement of lifelong registration was disproportionate and created a requirement that a mechanism for removal be introduced.
Bill of Rights
Another benefit of a British Bill of Rights is that it could include additional rights. A lot of people in the UK for example seem quite keen to be protected from social care providers.
The second reform proposal is a set of measures to make the European Court prioritise important abuses so cases like Stanev get dealt with quickly and trivial cases get struck out.
A third proposal is that national governments could be allowed to override European Court decisions by a clear expression of opinion from their most senior elected body.
In looking at these ideas I do not mention America by accident. The founders of the United States, for all their flaws, drafted the constitution of their great nation with a keen understanding of human history and a desire to protect liberty and the dignity of the human condition. In doing so they recognised that the greatest threat to human dignity is human action.
The Constitution of the United States seeks to mitigate human error by setting the three branches of the state against each other. The judiciary, the legislature and the executive are formally separated and equipped to hold each other in check. Decisions of the Supreme Court of the United States can be overturned by a Constitutional Amendment which in turn requires the support of 2/3 of both houses in the legislature and 3/4 of the states to ratify.
Such amendments are rare and therefore proposals with any chance of success attract huge public attention and debate along with all the benefits that brings such as scrutiny and expert opinion. The American founders knew that giving democratic legislatures the power to overturn Constitutional decisions on a simple majority would weaken its protection. If that was the case laws could be rushed through against any temporarily unpopular minority group. Therefore they instead created a safety valve requiring that a wide consensus be forged across society – baroque procedures that by their very nature would require the widest scrutiny.
America became and remains still the wealthiest and most powerful nation on Earth, with an envied reputation on Human Rights and a history of freedom.
If Britain proposed a super-majority procedure for overturning ECtHR decisions by (say) two thirds of both houses of Parliament and a simple majority in a referendum then what reasonable person could say that the decisions reached under that mechanism would be poor or ill considered?
David Cameron was right to say that the ECtHR needs reform and he was right to raise the principle of subsidiarity. If in providing for new procedures he should glance at the powerful and successful society across the Atlantic and propose we follow their lead then perhaps the leaders of Europe would be wise to follow his.