This is not a post entirely about mental health or capacity law but since this topic has been doing the rounds of the human rights blogs I thought it was worth contributing to.
So the Prime Minister went to Strasbourg to give a much-hyped speech. It was far more heavily trailed than the speeches he subsequently gave at the World Economic Forum or the EU summit in the following week and a cynical person might infer that this hype was generated by Number 10.
The speech itself received less coverage than the prior hype, and many of the statements we were assured he would make in advance did not make the final cut. In fact the speech was rather dull. Mr Cameron told us that Britain is committed to human rights, as evidenced by the signing of the Magna Carta and WWI and WWII. ‘The Magna Carta and all that’ could be the title of a book detailing everything the average British person knows about their civil liberties. It might be rather short. He then told us that human rights abuses are still occurring and that Britain is still committed to challenging this [except obviously when the abuses in question involve depriving prisoners of their right to vote or sending people to stand trial in countries where evidence obtained by torture is admissible].
He then stated that the Court is having to deal with too many applications. He didn’t provide any figures regarding the proportion of applications deemed admissible though he argues that too many admissible cases are held up for years because of the backlog. The debate concering the proportion of applications which should be deemed admissable is complex. But dealing with the backlog is certainly a good idea and the Prime Minister thinks so too. To address this he argued that the court must not simply become an court of fourth instance after domestic remedies have been exhausted. He provided no instances in which this has actually occurred. Instead he cited the first case which was deemed inadmissible after the introduction of Protocol 14. I think the ECtHR did not need to hold a full hearing into whether Adrian Ionescu should have his bus fare refunded. But importantly so did they.
Next he complained that the margin of appreciation enjoyed by states is becoming narrower, especially with regard to immigration decisions. Apparently the ECtHR must not become an immigration tribunal. Again he does not cite any instances of the court simply acting as an immigration tribunal. He presumably does not mean the decision in Abu Qatada because there the ECtHR held that it would be a flagrant denial of justice to deport an individual [even a very nasty individual] to a state where they might face a trial at which evidence obtained by torture was admitted. Ensuring that evidence obtained by torture is never allowed to pollute the judicial process is something the UK is committed to not simply through the ECHR but also through the UN Convention Against Torture and has even been argued to form part of international customary law. So I am sure he cannot mean the court should have ruled other than it did.
Although this does raise a question about who the government thinks should adjudicate on human rights issues in the context of immigration because the Home Secretary has already told us she disapproves of human rights issues being raised in front of domestic immigration tribunals.
He concludes this section of his speech by saying that controversial rulings may undermine confidence for the ECHr [although perhaps not as much as the Parliament of one of the first signatory states deciding to openly and assertively reject a judgment of the ECtHR].
Finally he tells us that he proposes to make the court more efficient, improve the procedures for nominating judges and ‘strengthen subsidiarity’. It is impossible to comment on these proposals without seeing the details but as an aside ‘strengthening subsidiarity’ is surely gibberish. Either the procedures of a supranational legal body respect subsidiarity or they do not. The actions of national courts in applying Strasbourg jurisprudence and the contrasting respect shown by Strasbourg for the work of national courts may reflect their underlying commitment to subsidiarity, but we cannot ‘strengthen’ the principle as such.
The speech as a whole is so bland and vague that the only sensible conclusion to draw is that it is not really intended for the audience who were present when it was delivered. The target audience were domestic and were intended to read about it in the papers or listen to a news report on it.
Those of us who think that in Lucy’s words ‘human rights make things (potentially) a little bit less bad’ should speak up and assert the continued relevance of the Strasbourg Court to human rights protection in the UK and across Europe. But I think it is probable that the Prime Minister’s proposals, even if they secured the backing of all 47 members of the CoE, would only make things very slightly less good.