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Wednesday 16 November 2011 |
By Owen Bowcott Legal affairs correspondent
UK courts are following European court of human rights rulings too strictly and should adopt a more critical approach towards Strasbourg, according to Britain's two most senior judges.
Lord Phillips, president of the supreme court, and Lord Judge, the lord chief justice, struck a note of Euroscepticism at a parliamentary committee. The automatic right of appeal to the ECHR should be replaced with a requirement that permission be obtained before individuals' cases can proceed to Europe, they suggested.
Their comments, before the joint committee on human rights, come as the government seeks to transform Britain's judicial relationship with the ECHR and tackle the Strasbourg court's huge backlog of cases.
Phillips and Judge agreed that the court did not allow sufficient leeway in interpreting general human rights principles in the context of domestic legislation.
They were both asked by the Liberal Democrat Lord Lester whether UK courts have been too strict in following ECHR case law.
"We have a tendency to be too strict," Phillips said. "We pay great attention to the decisions and rulings of higher
Judge added: "Most of the decisions [in the ECHR] are not dealing with principles they are dealing with facts and that's not a precedent for anything.
"I think judges are generally aware of this and are examining the decisions much more carefully to see whether they are just looking at facts or principle."
The backlog in cases before the Strasbourg court was also criticised. "They have 165,000 cases outstanding at the ECHR and that makes inevitably for an incredibly inefficient system," Judge said.
Any appeal by individuals to the ECHR should, therefore, require permission for it to proceed. "What the [ECHR] should be focusing on is cases that raise issues of principle," Phillips said.
That was why the UK's supreme court had been waiting for two years on one particularly thorny case to be resolved by the upper appeals chamber of the ECHR.
The decision in al-Khawaja, when delivered, and in that of Horncastle would have profound consequences for the UK's relationship with the ECHR, the judges said. In the case of Horncastle, the supreme court used the right not to follow Strasbourg jurisprudence for the first time.
Judge and Phillips declined to comment on the "hot political issue" of prisoners' voting rights, a diplomatic standoff in which the UK has so far failed to enforce the decision of the ECHR that inmates in British jails should be given the vote.
Article 8 of the human rights convention, which guarantees a right to family life and privacy, was baffling for judges to interpret, Phillips admitted.
165 - Number of cases, in thousands, still outstanding at the European court of human rights, according to Lord Judge