Posted by: the watchmen | April 6, 2009

British Rule.Not Strasbourg Dictatorship!

From The Times April 6, 2009

We can’t allow Strasbourg to lay down the law
The European Court of Human Rights is overweening and inefficient. The law lords should take over as our ultimate court William Rees-Mogg
Lord Hoffmann is one of Britain’s most distinguished judges; he is now the second most senior Lord of Appeal, and is close to retirement. Last week he delivered a strongly felt address to the Judicial Studies Board. This speech was a serious criticism of the European Court of Human Rights, usually known as the Strasbourg court. He accused the court of considering itself as “the equivalent of the Supreme Court of the United States, laying down a federal law of Europe”.

One should take very seriously anything Lord Hoffmann says. He is widely regarded as one of the two or three finest legal intellects of his generation. In the past decade he has written some of the most important House of Lords judgments. He has supported the shift to judicial liberalism that followed the passage of the Human Rights Act 1998. That Act incorporated the European Convention on Human Rights into British law, a policy that he supported and still supports.

The United States provides the example of a federal legal system led by a supreme court, which is the final court of appeal. Lord Hoffmann thinks that the European Court of Human Rights is now claiming to be the supreme court on human rights issues for the 48 countries that have signed the European Convention. The Strasbourg court decides which cases do involve human rights, and brings them under its jurisdiction.

Most courts have a tendency to seek to widen their own jurisdiction. In Britain we have seen a generation of growing judicial activism, in which British judges have reviewed decisions that would previously have been regarded as matters for the discretion of ministers. Lord Hoffmann has largely supported this judicial activism by the British courts, but is now less happy when it involves Strasbourg overruling senior British courts. He is concerned that Strasbourg is extending its authority to areas in which human rights are, at best, secondary issues.

In his address, Lord Hoffmann gave examples of the Strasbourg court being “unable to resist the temptation to aggrandise its jurisdiction”. He said that Strasbourg had intervened on matters that included the right to silence, the use of allegedly hearsay evidence and night flights at Heathrow airport. On these sort of issues, almost any legal dispute could be taken as involving human rights of one sort or another.

The process of public administration always involves choices; most of these choices will cause some disadvantage to somebody. If, for instance, night flights at Heathrow are allowed, airlines will be able to carry more passengers, which is an advantage both to the people flying and to the airlines themselves, but is a disadvantage to those on the ground whose sleep is disturbed by the extra air traffic.

The constitutional problem is to decide who should take these decisions. Logically, a supreme court, if it can maintain its authority, will be able to decide whether a particular case belongs to its jurisdiction, and can then decide the cases it takes and what it perceives as their merits. The US Supreme Court is the ultimate authority of the American Constitution because it has overriding powers on constitutional issues.

The US Supreme Court has sometimes produced historically disastrous judgments, as in the Dred Scott case of 1857, which determined that there existed a constitutional right to own slaves as property. That judgment made the Civil War inevitable. In creating a supreme court, it needs to be remembered that judges have made terrible mistakes in the past; some judges, historically, have been bloodthirsty bigots just as others have been liberal supporters of human rights.

In Lord Hoffmann’s view, there seems to be a rivalry of jurisdiction between two potential supreme courts for human rights in Europe: the law lords and the Strasbourg court. Lord Hoffmann makes a convincing case for preferring the law lords.

I do not doubt that the average quality of the lords’ judgments has been the higher of the two. Apart from anything else, Strasbourg is in danger of being overwhelmed by a backlog of 100,000 cases. British courts are likely to interpret British law and culture more sensitively than a scrum of European judges, some of whom, by our standards, may be significantly under-qualified.

However, Lord Hoffmann has his own loyalties to judicial liberalism and he stops short of aiming to abolish the European Court of Human Rights, though he seems to think that Westminster justice is in practice a good deal superior to Strasbourg. If we must have an ultimate court to decide human rights cases, there is no reason to go outside our own jurisprudence. The law lords have done and will do an excellent job. This would make Strasbourg redundant.

There is, however, a third court that is already a supreme court in its own extensive area of European law. The Strasbourg court does not form part of the machinery of the EU, but the European Court of Justice (ECJ) does. The legal identity of the EU itself will be fully recognised if the Lisbon treaty is eventually ratified.

There do not seem to be any penalties if Britain should decide to amend the Human Rights Act 1998 and repatriate the legal process of appeal on human rights issues. It would be a tougher matter to leave the European Court of Justice. The Conservative Party policy is to reform the Human Rights Act; that could restore British independence in terms of the Strasbourg Court, but not in terms of the European Court of Justice.

Yet the ECJ is equally federalist in its ultimate ambitions; it would like to be the supreme court of the European Union and could itself easily replace the Strasbourg court. Of the three possible supreme courts – the law lords, Strasbourg and the ECJ – it is the European Court of Justice that is the greatest federalist threat. Perhaps Lord Hoffmann was shooting at the wrong target

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