David writes in The Times about the need for reform of the ECHR


In an article for The Times, David criticised the European Court of Human Rights, which has repeatedly reached judgements that would have shocked the original signatories of the convention which established it. He called for the creation of a rule whereby Strasbourg would be stopped from hearing cases which are properly considered the business of parliaments, a shortening of the time available to apply for a hearing at the ECHR and the ending of the consideration of points of law already considered by national courts.

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To restore its reputation the human rights court must shrink its remit and stop interfering in national affairs

The European Court of Human Rights needs substantial reform, something that the Prime Minister called for when Britain began chairing the Council of Europe last year. Of course, this is easier said than done. With 47 countries on the council and a change of chairmanship every six months, the pace of reform tends to be glacial.

But this week, when ministers and senior judges meet in Brighton to discuss the Strasbourg court’s future, Britain has a great chance to restore its efficiency, credibility and reputation.

In the past decade the court has lost its way. Most seriously, the Strasbourg judges seem to have forgotten that their purpose is not to make law on the hoof, but to apply the principles of the European Convention on Human Rights as originally intended by those who signed it.

The convention was the product of years of painstaking negotiation. Every word was scrutinised by legal experts from every signatory state to ensure that it could not be misinterpreted. Since then, European judges have decided that the convention is not set in stone, but is a “living instrument” — a view that allowed them to expand the court’s influence.

As a result it has imposed judgments on Britain that would have astonished those who signed the original convention. It has allowed foreign killers to stay in Britain to protect their family life, told parents how to discipline their children and attempted to give prisoners the vote. None of these innovations was envisaged by the original signatories. Just as importantly, none would survive a Commons vote, which is ironic as the Strasbourg court is there to protect democracy.

I yield to nobody in my commitment to judicial rights and freedoms but this approach has led to three quarters of Britons viewing the convention as a criminals’ charter. This is inimical to real human rights: rights to a fair trial, privacy and freedom of expression.

The court is also drowning in its own caseload. At first, only well-founded allegations of grave human rights violations reached Strasbourg. Now 800 million Europeans can treat it as a final court of appeal for personal grievances. The result? In 1991 it received fewer than 2,000 applications. Twenty years later, in 2011, it received more than 60,000, three times more than the total received between 1955 and 1990. The court cannot cope.

What is more, many cases are duplicates, irrelevant or trivial. One individual applied to Strasbourg for €90 from a bus company because he thought the seats were uncomfortable. The case was rightly dismissed, but every year thousands of these inadmissible applications distract from more serious issues.

The court’s supporters say that it upheld only nine of 900 complaints against Britain last year and think this a compliment. On the contrary it suggests that most of those 900 cases shouldn’t have got to Strasbourg at all.

So how do we fix the court? First, we need new rules to stop Strasbourg hearing cases that should remain the business of democratic parliaments and national courts. According to the court’s own jurisprudence, it allows states a “margin of appreciation” — a type of legal leeway that accepts that the convention can be validly interpreted in different ways by different member states according to their own cultural, historical and philosophical traditions. This principle was ignored when the court meddled in the issue of prisoners’ votes. The Attorney-General, not one for visceral criticism of the court, quite rightly told the judges that prisoner voting is “a question for democratically elected representatives to resolve”.

This excessive interference with political questions must stop. The court must respect the democratic decisions of national parliaments and judgments of national courts. It must give greater prominence to the margin of appreciation and enshrine this concept within the convention itself.

Second, we need reforms to help the court to deal with its caseload. With applications arriving faster than they can be read, let alone dealt with, a huge backlog has built up. In 2007 there were 66,500 cases pending. That has more than doubled to above 150,000, a situation that is not only unsustainable, but has serious consequences.

Take the case of the British terrorism suspect Babar Ahmad. I cannot know if he is guilty or innocent, but it was no sort of justice to imprison him for seven years without trial while the court made up its mind.

The court must be stricter about the cases it accepts. It could shorten the time available to apply for a hearing in Strasbourg. Judges could forbid any new application on a point of law already fairly considered by a national court or if no human rights violation was alleged when it was heard in the applicant’s national courts. These reforms would allow the court to dispose quickly of inadmissible cases and stop many reaching Strasbourg in the first place.

Third, if the court is to restore its reputation in Britain it must address the issue of deporting foreign terrorist suspects.The decision to allow the deportation of Abu Hamza was welcome, but an all-too-rare victory for common sense. The Home Secretary announced yesterday that Abu Qatada would face new deportation proceedings, three months after the court ruled that the Jordanian spiritual leader of al-Qaeda in Europe could not be deported to Jordan to face trial, because evidence that might be used against him could have been obtained illegally through torture.

Nobody takes a firmer stance against torture than me. If Abu Qatada had confessed under torture or faced torture in Jordan if deported, I would support the ruling. But to allow one of the world’s most dangerous men to stay in Britain because Jordan’s justice system is not identical to Strasbourg’s is unreasonable and unbalanced. The court must take into account Britain’s right to be rid of someone who has countenanced the killing of those who reject Islam.

This week’s conference in Brighton offers the court a chance to reform. If it resists, it will continue to undermine its own reputation and that of human rights in general. There are already leaks that suggest backsliding. The Government must stand firm and start the reform process today.