WILL THE COURTS CHOKE ON JUSTICE SECRETARY KENNETH CLARKE’S BRIGHTON ROCK?

Written 25th April 2012 by Olliers Solicitors

On Thursday 19th April 2012 a two day conference was held in Brighton in which 47 member nations of the Council of Europe gathered to discuss reforming the European Court of Human Rights (ECHR). One of the major problems that the ECHR is faced with is the back log of cases totalling 150,000 and each year it is faced with far more cases than it can properly consider.

European Court of Rights

It appears more than half of the applications pending have been lodged against four countries: Russia, Turkey, Ukraine and Romania, with the UK making around 900 applications to the court last year, part of the backlog of some 3,000 UK cases, but only 8 findings against the UK. David Cameron warned the ECHR was being used like a ‘small claims’ court and that the sheer volume of cases risks urgent cases being stuck in a queue which means the very purpose of the court to prevent the most serious of violations of human rights is under threat.

Justice Secretary Kenneth Clarke opened international talks and introduced a draft declaration with the aim of tackling the problem:

  1. It makes clear the responsibility of national governments to implement the Convention effectively, and the judgments of the court.
  2. I helps clarify the relationship between the Court and national authorities based on the key principle of subsidiarity.
  3. It gives the Court tools to manage its workload back to sensible proportions.
  4. It helps ensure that the court and its judgments are of the highest possible quality.
  5. It emphasises that we have to be constantly aware of our responsibility to ensure the convention system is operating effectively.

Clarke stated:

“If we get this right, the prize is a great one. Not just a substantial package of measures, with common sense running through it like the letters through a stick of Brighton Rock.”

Human Rights

In considering this draft declaration, could it be that Clarke is effectively saying people should be limited from going to Europe and appeals to the ECHR should be cut down unless there is a significant legal point to be made? Surely by filtering out what appears to be frivolous cases from serious cases would be weakening human rights? Could it be that Clarke is not really bothered about people’s human rights leaving it up to the national courts to tackle the issue before it even gets that far?

The fact is that 800 million people are entitled to access the ECHR and to be limited or even excluded from it would be a bit of an irony as the court was set up originally for the protection and promotion of human rights. Citizens should feel that they have right to challenge government decisions; if there was no right to appeal available then under-performing member states could potentially get away with committing abuses leaving the citizen with no justice at all. Justice must not only be done but must be seen to be done!

Independence

Sir Nicolas Bratza, President of the ECHR, said he was “uncomfortable” with governments trying to “dictate” the European courts operations, and in order to fulfill its role the Court should be independent and be seen to be independent. It appears one of the reasons for the volume of delays in cases is partly due to delay by states implementing decisions such as prisoners being able to vote and cases such as Abu Qatada’s, which took 11 years to decide.

However, following on from the conference, the Brighton Declaration has now been formally adopted by all 47 member states. Mr Clarke stated:

“These reforms represent a substantial package of reform and are a significant step to realising the goals that the Prime Minister set out in Strasbourg. These changes should mean fewer cases and the court will not normally intervene where national courts have clearly applied the convention correctly.”

Unfortunately the citizen may now be left in a very vulnerable position and it is the courts that could be left choking on the letters of Kenneth Clarke’s Brighton Rock!

Saskia Abbot

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