John Howell – 2022 Speech on the European Court of Human Rights

The speech made by John Howell, the Conservative MP for Henley, in the House of Commons on 19 January 2022.

It is a great pleasure to have the Adjournment debate tonight. I am the leader of the UK delegation to the Council of Europe, but I will not be commenting on the consultation recently launched by the Lord Chancellor as it is largely a domestic issue. I will be considering the European Court of Human Rights from the Strasbourg end.

I am not from the wing of my party that believes we should pull out of the European Court of Human Rights, and I do not have an isolationist perspective that we should simply go it alone and ignore anything the Court says. The purpose of this debate is to consider how the Court can be reformed to make it better for people right across Europe, to make it more useful, to make its judgments more relevant and, above all, to make sure its judges show the same degree of integrity for which British judges are famous.

The UK has a key role in taking this forward. This is not about judgments but, among other things, it is about judges. The key question for the Government is whether they will support me, as the Secretary of State for Justice suggested, in the reforms about which I have already begun to have conversations in Strasbourg.

Jim Shannon (Strangford) (DUP)

I thank the hon. Gentleman for securing this debate and for all that he does in his role at the Council of Europe, of which the UK is a member. Does he agree that, although we have left the European Union—there is still some fragility in relation to that—it is crucial that the UK continues to play a part in the Council of Europe to ensure that human rights cases, in which he is particularly interested, are dealt with properly and that countries such as Russia, which has the most cases brought against it, are held to account? Does he agree that is important?

John Howell

I agree, and I will address the enormous number of cases involving Russia. The order of countries with the most cases before the European Court of Human Rights is: Russia, Turkey and Romania. We are nowhere on that list, but it is important for us to concentrate on it.

I shall turn first to the question of judges. The Parliamentary Assembly of the Council of Europe elects the judges of the European Court of Human Rights. This immediately brings into question whether there should be a balance between the democratic legitimacy provided by us electing those judges and the political process. That question has been asked not only by us in Europe; it is always being asked in the USA. The politics of judges are not declared on their curriculum vitae, but everyone knows the political background of each candidate, and the voting for or against them is very much on party lines, as you will remember, Madam Deputy Speaker, from your time on the Council of Europe.

According to the European convention on human rights, judges must

“be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.”

To ensure that these standards are met, there are two phases to the election process. The first phase is a national selection procedure, in which each state party chooses a list of three qualified candidates. The second phase is the election procedure undertaken by the Parliamentary Assembly of the Council of Europe, in which parliamentarians assess the qualifications of the three candidates before voting to decide which one should become a judge. A fair and transparent process is called for throughout the entire operation. All candidates must have appropriate legal qualifications and experience, but the judge need not be a judge in their own country, and it is possible for politicians and civil servants to be appointed as judges. This happens frequently. In the UK, where judges are appointed and progressed through the judicial rankings based on merit and with political bipartisanship, this concept can be difficult to understand.

At this point, I should like to praise our own judge there, Tim Eicke QC. He is qualified in at least two systems of law, he is genuinely independent, and a fair process was used to appoint him. He has gone out of his way to give support to the Parliamentary Assembly, and we have had a number of discussions with him. I pay him the greatest possible compliments for the work that he does in the Court.

A recent report shows that at least 22 of the 100 permanent judges who have served on the European Court of Human Rights between 2009 and 2019 are former officials or collaborators of seven non-governmental organisations that are highly active before the Court. Since 2009, there have been at least 185 cases in which at least one of these seven NGOs was officially involved in the proceedings. In 88 of those cases, judges sat in a case in which the NGO with which they were linked was involved. For example, in one case before the Court, 10 of the 16 applicants were NGOs funded by the one NGO that looked after them, as were six of the NGOs acting as third parties. Of the 17 judges who have sat in the Grand Chamber, six are linked to the applicant and intervening NGOs. From 2009 to 2019, there were only 12 cases in which a judge withdrew from a case apparently because of a link with an NGO involved in the case. This situation calls into question the independence of the Court and the impartiality of the judges, and it is contrary to the rules that the ECHR itself imposes on states in this area.

Particular attention should be paid to the choice of candidates for the posts of judges. A mechanism is needed for avoiding the appointment of political activists, not only to the office of judge, but as Court jurists. Links between NGOs, lawyers and applicants should be made visible by asking them to indicate in the application form whether they are accompanied in their efforts by an NGO, and to mention its name. This requirement would improve the transparency of the proceedings, both for the Court and for the respondent Government. The future of the convention system rests on this, as:

“The quality of judges and members of the Registry is essential to maintaining the authority of the Court and therefore also for the future of the Convention mechanism.”

I emphasise that it is the quality of the judges that is crucial to the future of the system.

We all know that NGOs have a strong political or ideological character, which in itself should be seen not as an advantage, but as an obstacle to appointment to the Court. To this end, candidates for the office of judge should have the obligation to declare their relationships with any organisation that is active at the Court. Also, the Parliamentary Assembly should be given sufficient means to carry out a proper assessment of candidates before the election. The current arrangement does not allow for in-depth discussion, although there is a separate Committee set up on which a number of Members of this House serve.

The current publication of the summary of judges’ curriculum vitae could be complemented by a simple thing: a declaration of interests. The demand for declarations of interest and their publication is growing, as they constitute one of the main measures to prevent conflicts of interest. Such a declaration has been imposed on all French magistrates since 2016. In the United States, members of the Supreme Court are subject to a declaration of interests, updated each year and made public, which notably mentions the advantages or gifts received during the previous year. A similar requirement should be put in place if we want the quality of judges of the European Court of Human Rights and the whole structure to be in line with what we expect it to be.

Some work also needs to be done on formalising withdrawal procedures. Any judge who, in a particular case, has doubts as to the requirements concerning him or herself on the principles of judicial ethics should have the obligation, and no longer only the option, to inform the President of the Court. The Court should inform the parties in advance of the composition of the formation of the panel that will decide their case, in accordance with the principle of publicity of the proceedings provided by the convention itself, in article 6. In its current practice, the Court deprives the parties of the possibility of requesting the withdrawal of a judge, as it only informs them of the identity of the judges when the judgment is published. There are exceptions to this, where the case is tried in public hearing or in the Grand Chamber, but most cases are not so tried, so the ability of the person bringing a case to challenge a judge for his or her association with an organisation such as an NGO is removed. A party cannot generally effectively request the withdrawal of a judge, which I think is very sad.

Finally, I want to turn to the Brighton declaration to see whether it might be able to help. It was produced towards the end of our chairmanship of the Committee of Ministers, not long after I entered the House, although I was not involved in the Council of Europe at that time. The declaration covered the future of the European Court of Human Rights. It opened with a general reaffirmation of our

“deep and abiding commitment to the Convention”

The aim of the Brighton declaration was to secure rights and freedoms as defined in the convention. It also recognised the fundamental principle of subsidiarity. That may have been one of the first occasions on which the term “subsidiarity” was used to describe a European institution. It would be typical of the EU to steal that, as it stole the flag of the Council of Europe and the anthem as well—but we can consider that on another occasion.

The declaration contained specific practical measures designed to enhance the role of national Parliaments in ensuring effective implementation, such as their being offered information on the compatibility of draft primary legislation with the convention—I, and, I am sure, all other Members, have seen the use of those measures in the context of legislation that we consider and how we go about implementing it—and it encouraged the facilitation of the important role of national Parliaments in scrutinising the effectiveness of the measures taken by Governments to implement judgments of the Court. However, while those measures are welcome, the declaration failed to address the key points that I have mentioned—for instance, the point about reform of the judges. I suspect that that is because there is such a vested interest in that regard, and that reform will therefore prove to be a long task; I hope that I will continue in my current role for long enough to be able to perform it. The changes that were proposed in the declaration were relatively technical and uncontroversial in nature.

It would be more useful for me to address some of the issues that are likely to come up under the consultation, which I said I would not cover in my speech. Let me now say that I lied about that, and touch on a few of them. They include the ability of individuals to obtain practical and effective access to the Court, and the relationship of the Court to the member states which are part of it. The declaration gave a strong commitment to the convention without tackling the crucial issue of the election of judges. I return to what I said about the quality of those judges being essential to the future of the Court and of the convention system.

Those are all important things to discuss, but if we get too far into them without tackling the problem of the judges and the mechanics of the Court, we miss a trick—here I repeat what I said at the beginning of my speech: we, as the United Kingdom, have a great deal to offer because of the standards of our judicial system and our experience—because we miss the opportunity to reform the Court not just for our benefit, but for that of people throughout Europe.

I will leave the House with one important statistic that I have already mentioned in response to the hon. Member for Strangford (Jim Shannon). The countries with the most cases against them are Russia, Turkey and Romania. The UK has very few cases against it. Everybody remembers votes for prisoners because over the time that I have been in Parliament that is the one major issue that has come to the House. That gives us a good chance to implement change that is clean and for the greater benefit. I hope that, with the help of the Ministry of Justice, I will be able to carry that out in Strasbourg, hopefully with the agreement of all the other member countries that elect judges to the European Court of Human Rights.