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17 Jud. Rev. 1 (2012)

handle is hein.journals/judire17 and id is 1 raw text is: [20121 JR

The European Court of Human Rights and
the Human Rights Act: British Concerns
Lord Lester of Herne Hill QC*
The spirit of liberty is the spirit that is not too sure that it is right. (Judge Learned Hand)
1. The role and function of the Strasbourg Court has been controversial ever since the
making of the Convention some 60 years ago.' The Court is in a state of crisis which
threatens its ability to provide effective European supervision of the states parties to
the Convention in securing the Convention rights (in accordance with Art. 1 of the
Convention2) to everyone within their jurisdiction. The future of the Court and its rela-
tionship with the British political and legal system is a subject of great practical import-
ance not only to public law practitioners but to everyone here and elsewhere in Europe,
as is the future of the Human Rights Act 1998 or further legislation and case law in
giving effect to the Convention rights.
2. The Court interprets and applies international human rights law. It is not intended to be
an appellate court or a court of first recourse. The Convention system depends upon
faithful adherence to the principle of subsidiarity by the Court and by the public author-
ities of the contracting states. Article 1 obliges the states to secure Convention rights to
those within their jurisdiction, and Art. 13 to provide effective domestic remedies for
the violation of Convention rights. It is the responsibility of all three branches of
government - the political branches and the independent judiciary - to exercise their
functions in ways compatible with the Convention. Both the Court and the Committee
of Ministers in their supervision of the execution of the Court's judgments recognise
that there is a wide area of discretionary judgment - the margin of appreciation
accorded to national institutions. And, as Judge Sir Nicolas Bratza has observed: The
Court's judgments are replete with statements that customs, policies and practices vary
considerably between Contracting States and that we should not attempt to impose
uniformity or detailed and specific requirements on domestic authorities, which are
best positioned to reach a decision as to what is required in a particular area.'
3. The prime responsibility for securing the effective enjoyment of the Convention rights
is not that of the Court but of the states parties through their governments, legislatures,
courts and tribunals, and public authorities of all kinds, as well as the legal profession,
the media and NGOs. It is for them to make the initial ethical and policy choices, not the
Strasbourg Court. The rights and freedoms protected by the Convention have to be
brought home throughout Europe, and there must be effective access to effective reme-
dies by well-funded and qualified independent and impartial courts and tribunals. This
means that there must be adequate legal aid and assistance for the poor and not-so-rich
The author wishes to thank Sophia Harris, Parliamentary Legal Officer at the Odysseus Trust for her help in
preparing this article.
Lester, Pannick and Herberg, Hiunaii Rights Law and Practice, 3rd edn (2009), paras 1.12-1.24.
2 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section 1 of this Convention.
Sir Nicholas Bratza, SPLG Edinburgh Seminar, March 2011.


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