Law Review: Baroness Hale on human rights – The inefficiency of the European Court of Human Rights: Justice delayed is justice debied

Baroness Hale: Human Rights Act hampered by constitutional problems

Guardian: UK’s most senior female judge laments lack of time spent applying essence of the Act

Baroness Hale has made an insightful speech criticising the time spent on constitutional wrangling rather than on the essence of the Act. The Guardian notes: “Lady Hale suggested that the tension between the Government and the courts arising from such cases is preventing judges from doing their job”

It seems a shame that an Act, which appeared to be so clearly drafted and was trying to do such an important but radical thing, has given rise to so many difficult constitutional issues on which we have had to spend so much of our time. Maybe the previous mind-set of the practitioners and the courts is more to blame than Parliament and the Parliamentary draftsmen.

Tan Tench, Olswang,  provides a very good analysis of Hale’s speech. I can thoroughly recommend the UKSC | Blog as a first port of call on matters relating o The Supreme Court and the usual high standard is applied in this summary.

Dan Tench writes: “In her conclusion, Lady Hale regrets that the Act “has given rise to so many difficult constitutional issues”, although that was perhaps inevitable.  It is pretty clear that she would like the courts to take a bolder line, being prepared where necessary to intervene more and get ahead of the Strasbourg line and simply introduce words into statutes to provide compatibility with the Convention.  These would certainly be steps in a radical direction.”

UK bill of rights plan a ‘bad idea’, warns head of European court

Guardian: Senior judge’s remarks that human rights could be hit if act repealed threatens to inflame row over power of Strasbourg.

Plans to create a British bill of rights have been strongly criticised by one of Europe’s most senior judges, in a stance which could create further conflict between the government and the European court of human rights.

Jean-Paul Costa, the president of the court, has said that repealing the current human rights act would be a “bad idea” and could jeopardise the protection given by the European convention on human rights.

“The project of returning the court to British rule is a bad idea,” he said, in an interview with the Guardian. “The human rights act has made a big difference to the protection of rights in the UK. People have started to be acquainted with the European convention on human rights.”

After the second world war there was a clear need to re-build and prevent further European conflict.  There can be no doubt that the creation of the European Union has achieved much – but it is equally clear, with the growth of the Union, the different pace of the economies, the problems of the Eurozone and Greece in particular that the road to a European super state has been stalled.  The European Convention on Human Rights was largely a creature of British design.

The President of the European court is in danger not only of venturing into areas which should be no concern of the court or the judiciary, but of committing the sin of legal hubris. Lord Hoffmann, a former law lord,  said. “It considers itself the equivalent of the supreme court of the United States, laying down a federal law of Europe.” Hoffman added that is also guilty of self aggrandisement.
It also appears that the court is astonishingly inefficient. Justice delayed is justice denied.  The Guardian notes: “A number of senior UK judges have voiced strong criticisms of the court, which currently has a backlog of around 120,000 cases – a workload which it is estimated would take at least three years to clear even if no new cases were brought.”

It might be a good idea for Judge Costa to concentrate on his own back yard before he irritates judges, practitioners and commentators in this country further. His remarks and thinking  on British plans do not seem to have been fully worked out.  Perhaps this is a result of the astonishing backlog of cases?   And what is the cause of the backlog?  I shall have to look further into that.  I assume someone at the ECHR will be prepared to tell me if I telephone and ask politely?  I suspect that Judge Costa will be a bit busy preparing his 120,000 judgments or procrastinating with further thoughts on British plans.  As the man says, the European Convention gives protection but with a backlog of 120,000 cases, taking three years to clear, it isn’t doing a particularly good job of actually delivering protection.  Perhaps I need some alka seltzer – too much acid in the system this morning.  Breakfast calls.

While I appreciate the history and the drafting of the relevant law – I am beginning to wonder why we even need a European Court of Human Rights. On the not unreasonable assumption, these days, that all European nations are civilised – why can’t national supreme courts deal with human rights issues in relation to Britain?.  If we suddenly find that our Supreme Court runs amok and starts implementing government policy and ignoring the law – which is unlikely – why can’t our Supreme Court deal with all ECHR matters for UK and the same principle for all the other signatories?

European Union Law is, of course, an entirely different basket case.

5 thoughts on “Law Review: Baroness Hale on human rights – The inefficiency of the European Court of Human Rights: Justice delayed is justice debied

  1. maybe it’s the heat charon, but i fear your sense may temporarily have deserted you in shock and awe at the match yesterday. perhaps too much bollinger in the wake of our colossal victory over the evil empire against whom we have fought all our greatest wars, australia.

    so brenda reckons the government weren’t fully on message with human rights? no shit. governments want to do what they want and not get told to stop – they were elected to be in charge of stuff after all.

    that is why i believe it remains a genuinely major achievement that blair’s allegedly authoritarian regime passed the greatest single check of recent times on government authority. equally unsurprising that they found it a constant annoyance. as will their successors. blair was perhaps prescient enough to see that the hra may enable a government to retain some of its soul when its instincts are to be corrupted by power.

    equally the hoff considers the european court guilty of self-aggrandisement. the hoff has very much the same attitude as a government – he doesn’t like anyone telling him what to do as he was created by god to be the most brilliant of lawyers. so the headline:

    hoff in self-aggrandisement pot/kettle shocker!!!!

    is all a bit ‘so what’.

    next: the european court is very inefficient (see above under ‘so what’). uh-huh. could this to be in part (only!) to the fact that far from member states being able to apply domestic law in accordance with the (admittedly not simple) principles of human rights law, they keep failing to do so?

    it’s fair to say commenting on decisions which are properly those of the english parliament is beyond the remit of a european judge (not sure whether it is more or less bad form than the same comments by an english judge). however, faced with the stupidity and uncertainty of dave’s english bill of rights shite, it is perhaps understandable. and surely the interplay between domestic and european courts is very much costa’s realm.

    and you think the supreme court can handle human rights???

    ‘On the not unreasonable assumption, these days, that all European nations are civilised – why can’t national supreme courts deal with ECHR.’

    your reasonable assumption strikes me as quite the opposite. it’s not that they will suddenly start to implement government policy but that they are bound to follow the will of parliament (at least that’s what we like to tell them) and that they interpret in an understandably anglocentric way. the overview of a separate supra-national court is clearly of value if we wish to be part of a wider international system of values (and i do). it also means we all have a sense of buy-in to other domestic systems that agree to the scrutiny of the supra-national courts – with the useful side-effect of promoting comity.

    just that it is slow and inefficient (as many would say our own courts are) is no reason to get rid of it. or we could elect the hoff dictator for life. actually i don’t think that’s a dreadful idea either…

  2. SW –

    1.Baroness Hale made some rather good points. The Human Rights Act is vital to our national interest.

    2. I can see no reason for our HRA to be repealed with something of less value put in its place. The European Convention ditto.

    3. I would rather live in a country that was mature and open enough to be able to determine our own laws fully than have to be subject to some form of external audit and the will of judges from a country which I am not a citizen of

    4. It is for the people in this country to determine the laws and rules – and, for the most part, we’re getting there. Democracy, of course, admits of the possibility that these rules may change from time to time – as, indeed, they did under Blair to our detriment. Socialist governments are by no means perfect instruments of government or administration – to use yet another statement that will arouse a smile or ire.

    MOVING on to EU Law – and not the European Convention of Human Rights….

    5. I used to be very pro European Union. That I am less so now has nothing to do with Europeans, but everything to do with the way our rights to determine what happens in this country are being diluted by the needs of a ‘common cause’ and there is a tendency to encroach on matters beyond trade. I do not wish to be part of a European superstate.

    I suspect that a lot of people in this country would vote against remaining in Europe. Politicians may argue that many in this country do not understand the importance of Europe, the detail, the fact there is common defence, common security et al and are therefore not competent to judge whether we should stay in or out.

    I suspect this is the reason why politicians, keen in Opposition to shout, are less enthusiastic about referendums when in power.

    I shall think further on this and come back….

    I am always open to persuasion and do not regard myself as having fixed views on anything these days – if there are better ways of thinking or doing. I am, after all, not a politician or a businessman with a vested interest.

  3. It’s a bit early for the pantomime season, Mi Lady, however you do appear to be badly in need of a new script.

    From a prisoner’s perspective, getting access to human rights is far more important than seeing people, who are out of touch with the genearal population and even further removed from those in prison, wearing fancy dress costumes and engaging in pomp and circumstance.

    Here’s a reality check. The superior court is the European Court of Human Rights, and not the Supreme Court in London. Prisoners are very good judges of character, they see and feel the sharp end of the law. They see and hear and read media stories, and are not very impressed. They laugh at knee-jerking politicians, whom the general population take seriously. They are aware that the law is not only there to punish the wrongdoer, but also to protect the vulnerable. And see, in relation to the second element, that the law as far as the UK goes fails them badly. On the other hand, they are aware that better protection of their human rights comes from Europe.

    Europe has recently stated that the onus rests with the UK under the subsidiarity principle.

    It would help if those in the UK recognised that Supremacy of Parliament should now reside in a museum, and that the separation of powers must be precisely that and not the mish mash arrangement we have been struggling with for too long.

    Now that England has lost to Jerry, the Association of Prisoners would like to see the White Flag of Surrender fluttering from outside Number Ten, in relation to Hirst v UK (No2), because the alternative is that I have received instructions to let fly with Lock, Stock and Two Smoking Barrels and take no prisoners!

  4. John – “Prisoners are very good judges of character.”

    Unfortunately, while they may be good judges *of* character some of them are not *of* good character given what some of them are inside for.

    It is a pity that some prisoners did not recognise the human rights of those they killed, battered, assaulted, raped, stole from, burgled…. I could go on… but that would be to labour the point. It is ironic that those who do not recognise the human rights of others often seek priority for their own.

    I suspect that many in this country would prefer prisoners to have as few rights as possible?

    I prefer not to engage in retributive justice which is why I oppose the death penalty and believe that prisoner’s should be entitled to be treated according to the law of this country. We signed up to the European Convention on Human Rights. We should comply with it.

    Good luck with your quest to get prisoner voting rights recognised by the government. I suspect it is not that high on a list of government priorities at the moment. I am not wildly enthusiastic about your use of metaphor and threat. I would have thought reasoned argument a better tool for persuasion.

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