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Parliament should decide whether European Court of Human Rights rulings are binding, Government advisor says


European countries should be able to "override" rulings by the European Court of Human Rights (ECHR) if there is there a "democratic will" to do so, a Government advisor has said.

Sir Leigh Lewis, chairman of the Commission on a Bill of Rights, said that members of the Council of Europe (CoE) should be able to judge whether or not to abide by ECHR decisions.

The CoE is made up of 47 member countries and is Europe's human rights watchdog. The CoE is separate from the European Union (EU) and creates and recommends collaborative legal measures on human rights issues. It is the body behind the European Convention on Human Rights and the ECHR.

The Convention sets out individuals' fundamental rights and states the rules by which the ECHR must function. The ECHR applies the Convention and is tasked with ensuring CoE states respect the rights and guarantees set out in it. Under the Convention and the Statute of the Council of Europe all CoE member countries must adhere to ECHR rulings.

Sir Leigh said that changes could be made to Statute rules that would "empower other institutions of the Council of Europe to add qualifications to Convention rights". Currently amendments to Convention provisions of "an organisational nature" can only be made by the CoE's decision-making body, the Committee of Ministers. It comprises foreign affairs ministers from the 47 CoE member states.

Sir Leigh said that the Committee could propose changes to the rules to enable it, or the "Parliamentary Assembly" of member countries "or both acting collectively", to "override" ECHR rulings if there was a "will" to do so. Under the CoE Statute two-thirds of member countries must ratify rule changes before they can come into force.

"A variant of this approach might be a power in the Committee of Ministers to determine that a Court judgment should not be enforced if it considered that that course of action was desirable and justifiable in the light of a clear expression of opinion by the relevant member state’s most senior democratic institution," Sir Leigh said in a letter (7-page / 92KB PDF) to Deputy Prime Minister Nick Clegg and Justice Secretary Ken Clarke.

"Another variant could be a requirement in respect of proposed ground-breaking findings of violations for the Court first to consult the other Council of Europe institutions and for the Court to take a collective expression of opinion into account," the letter said.

"The jurisdiction of the Court should be defined in such a way as to require it to respect the proper role of democratic institutions in determining social and economic priorities, particularly those that involve allocation of financial and other resources," the letter said.

Sir Leigh stressed that his suggestions had not yet been approved by the rest of the Commission on a Bill of Rights. The Commission was set up earlier this year to independently advise the Government on the creation of a UK Bill of Rights "that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties," the Commission's website said.

Providing more formal Commission advice, Sir Leigh wrote a separate letter to Clegg and Clarke suggesting ways in which the UK could help tackle the backlog of cases that the ECHR has to deal with. He said that there are 150,000 backlogged cases - up from 18,000 in 2001 and 86,000 in 2006 - and that this figure was rising by 20,000 each year.

The letter recommended that the UK should use its forthcoming presidency of the CoE to issue a "time-bound programme of fundamental reform" to tackle the backlog. The UK is due to assume its six-month presidency in November.

Sir Leigh said that the ECHR should only be a "court of last resort" and added it was "essential" that the ECHR only deal with cases involving "serious questions affecting the interpretation or application of the Convention, and serious issues of general importance, where the Court’s intervention is justified". He called on the Government to "vigorously pursue" fundamental reforms that would limit the number of cases the ECHR has to deal with and provide penalties for countries that do not implement measures that enable this to happen.

"It is essential to ensure that the member states and their national institutions – legislative, executive and judicial – assume their primary responsibility for securing the Convention rights and providing effective remedies for violations," the letter (7-page / 87 KB PDF) said.

"Failure to put in place the necessary machinery for compliance should itself constitute a violation of the Convention," it said.

The ECHR should be able to "decline to address cases that raise no serious violation of the Convention or any issues of significant European public importance," the Commission's letter said.

The Commission called for "a new and effective screening mechanism" to be established to prevent insufficiently serious cases from being heard by the ECHR courts. It also said that it had adopted a provisional view that questioned whether the ECHR should have to rule on financial redress as part of its rulings. The Commission said this could be done in member countries except in "certain cases" where it would still be up to the ECHR to provide a ruling.

The Commission also said that improvements were needed to the way ECHR judges are selected and said the CoE's selection panel's role should be "enhanced and upgraded" urgently because "a number of senior members of the Court will retire in the near future, and it is vital for their places to be taken by worthy successors".

"The Government should seek to ensure that a programme of fundamental reform establishes agreement on appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level," the Commission recommended.

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