Lord Hoffmann of the House of Lords made a speech to fellow judges in the UK this week in which he accused the European Court of Human Rights of imposing “uniform rules” on states, creating a “federal law of Europe,” and behaving as a “supreme court”. Lord Hoffmann went on to say:
“I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such.”
This seems a bit bit strange given the fact that in many ways this is very much what the European Court itself has been saying throughout its existence. The Court has always insisted that national judges are better suited to deciding complex domestic issues. In fact, the Court is often accused of having bent backwards in some areas to accommodate national traditions and sensitivities through the idea of the “margin of appreciation”.
Of course, the “margin of appreciation” is only that, and one can fall beyond it, otherwise supranational control of human rights adherence would be meaningless. But it bears emphasizing that the Court will require states to be very significantly in the minority in terms of practices to consider that they fall foul of their ECHR obligations. Take for example the recent Grand Chamber decision on the possibility of retaining indefinitely the DNA and fingerprint records of unconvicted suspects. The Chamber was unanimous in considering the practice in the UK to be unlawful. Crucially in this case, the UK was the only of 47 member states of the Council of Europe to condone such a practice. Moreover, the Court did point out the better Scottish practice of keeping the records of only some of those cleared (e.g.: of sexual offences), for a limited duration, and with a judge’s supervision.
In his speech Lord Hoffmann made a link between this claimed ECHR assumption of supranational powers and the fact that it is threatening to drown under the number of petitions. That there is a severe backlog of cases in Strasbourg is obvious and requires some innovative solutions, but it is not clear how this is in any way linked to the level of scrutiny of domestic decisions. It is, rather, a symptom of the Court’s success and the fact that many European citizens do see it as legitimate and as anchored in their reality.