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European Court of Human Rights

7.17 p.m.

Lord Lester of Herne Hill rose to ask Her Majesty's Government whether they will seek to improve the procedures for the election of judges to the European Court of Human Rights by the Parliamentary Assembly of the Council of Europe so as to ensure that the Parliamentary Assembly is reliably advised about

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the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent expert committee.

The noble Lord said: My Lords, the European Convention on Human Rights is the jewel in the crown of the Council of Europe. The European Court of Human Rights, the guardian of the convention system, is to protect the basic rights of almost 800 million people across Europe. From 1st November, we will have a new permanent full-time European Court to which everyone in the 40 countries belonging to the Council of Europe will have access.

Under the convention, each judge must be elected by the Parliamentary Assembly of the Council of Europe from a list of three nominees provided by each government. This enables the assembly to ensure that the judges selected have the qualities needed for high judicial office. The assembly should not be a rubber stamp, but party politics is not the best way of choosing independent qualified judges. Ill informed or prejudiced elections can sap independence and lead to arbitrary results. So it is important that there should be effective safeguards against the misuse of the assembly's powers in assessing the suitability of judicial candidates and in electing them.

The first elections for the new court took place a few months ago. Twenty members of the old court and the old commission were elected, together with 20 completely new judges. Half of them, chosen by lot, will have to stand for re-election, if they wish to continue, in only three years' time; and the other half in six years' time.

What prompted me to ask this Question is the seriously defective nature of the procedures adopted and carried out by the Parliamentary Assembly for the first elections to the new court. The procedures were opaque and unfair, and stood in marked contrast with the open and transparent system adopted by the British Government for selecting the three nominees. In Strasbourg as well as here, there is real concern that, in the absence of an improved system for all future judicial elections, the moral and intellectual quality, independence and impartiality of the court will be in jeopardy.

The problem is exemplified by what happened, and by what nearly happened, in selecting and electing the British candidate this time round. Our Government acted with admirable fairness. I pay tribute to the noble and learned Lord the Lord Chancellor and the Foreign Secretary for the procedures which were followed in this country. There was a strong and independent assessment and interview panel consisting of two judicial members, Lord Justice Simon Brown, and the Lord President, the noble and learned Lord, Lord Rodger of Earlsferry; two legally qualified government officials, Sir Thomas Legg, then Permanent Secretary at the Lord Chancellor's Department, and Sir Franklin Bernam, legal adviser at the Foreign and Commonwealth Office; and an independent lay member, Joanna Foster, former chair of the Equal Opportunities Commission.

The British vacancy was publicly advertised. After interviewing five of the 33 applicants, the panel proposed to the noble and learned Lord the Lord

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Chancellor three highly creditable candidates in a specific order of preference. The noble and learned Lord the Lord Chancellor in turn secured the agreement of the Foreign Secretary and others for those three to form the British shortlist for the assembly. The candidates were, in order of preference, Mr. Nicholas Bratza, QC, the British member of the European Commission of Human Rights, Mr. Justice Carnwath, an English High Court judge, and Mr. Robert Reed, QC, a Scottish advocate.

Each was certainly well qualified to be elected to the European Court but the outstanding candidate was, as indicated by the selection panel and the Government, Mr. Nicholas Bratza, QC. His record as a barrister, and as a member of the European Commission of Human Rights since 1993, has been notable for the quality and independence of the judgment he has brought to bear and for his commitment to protecting human rights.

One would have thought his election in Strasbourg would be secure; yet events proved otherwise. A new procedure had been put in place, following a proposal made last July by the noble Lord, Lord Kirkhill, the Rapporteur for the Parliamentary Assembly's Committee on Legal Affairs and Human Rights. It required all candidates to be interviewed by a special ad hoc sub-committee. I am disappointed that the noble Lord will not be participating in this debate. He put his name down and I had hoped he would be here. I hope that there might be a similar debate in the Parliamentary Assembly.

The Strasbourg procedure involved a personal interview of only 15 minutes. The interview was, in the words of the noble Lord, Lord Kirkhill, "informal" and started with questions referring to the curriculum vitae submitted by the candidates. The sub-committee would, in most cases, limit itself to giving its opinion on the candidates' eligibility. Its reports were not to be made public, but were to be made available to the Committee on Legal Affairs, the bureau of the assembly, and the assembly's political groups.

Unfortunately, this procedure was flawed in several respects. The sub-committee had no particular expertise to interview and appraise the suitability of candidates for high judicial office. Certainly, it lacked the expertise of the panel set up by the noble and learned Lord the Lord Chancellor to appraise the British candidates. Secondly, a 15-minute interview based upon the applicant's curriculum vitae is too superficial for a thorough appraisal of candidates for the European Court. Thirdly, there were no formal rules of procedure to ensure fair and consistent treatment. Fourthly, there were no safeguards built into this procedure against the possible dangers of politically motivated, partisan or biased treatment of candidates. The members of the sub-committee were all politicians, and they had no duty to give reasons for their recommendations.

Some might argue that it was better to have this procedure than the old system of largely rubber-stamping government proposals; but it was essential for the new procedure to provide full and reliable information to the Parliamentary Assembly and to seek to avoid arbitrary, ill-informed and unfair decision-making.

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After interviewing the British candidates, the sub-committee did not limit itself to giving its opinions on each candidate's eligibility. Instead it decided against the Government's first choice of Commissioner Nicholas Bratza, QC, and instead recommended the third candidate, Mr. Robert Reed, QC. It gave no reasons for reversing the Government's order of preferences; nor did its report reveal to the assembly that it was overturning a government recommendation based upon a transparent, thorough, expert system of appraisal at the national level, which had the support of the human rights NGOs. Rumour has it that Mr. Bratza was disfavoured for having acted as counsel for the Crown on behalf of Conservative governments. That would have been a thoroughly bad reason.

In the teeth of the sub-committee's recommendation, Mr. Bratza narrowly won the election. But several members of the Labour group were furious, and attacked the Government quite unfairly for having secured the election of an "establishment" candidate. One member of the Labour group, Mr. Kevin McNamara MP, was so angry that he tabled nine questions in the other place suggesting that the Government had been at fault in not accepting the views of the sub-committee of the noble Lord, Lord Kirkhill.

What Mr. McNamara and some of his colleagues may not understand is that when the assembly appoints judges it must adopt a fair and open procedure. As my friend David Pannick, QC, observed in his powerful article in The Times, the assembly's politicians should not readily depart from the conclusions reached by an objective national procedure. They should substitute their own views only if so advised by independent experts after a thorough assessment. And they should give reasons for their decisions.

Nothing could be more damaging to the reputation of the judicial system and the effective protection of human rights than partisan political manoeuvring, perhaps to further a grudge match between old and new Labour. If candidates for judicial office with the European Court have to satisfy an unfair and inefficient procedure, then, as Mr. Pannick points out, the court's performance and its reputation will be seriously impaired.

The new court will face formidable challenges. Its judges must be of the very highest quality. I hope the Government will seek to persuade the Council of Europe to improve these procedures so as to ensure that the Parliamentary Assembly is reliably advised about the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent and expert committee. That would be an important check against the arbitrary exercise of the political power to elect members of this important court leading to perverse results.

7.27 p.m.

Lord Ackner: My Lords, when I put down my name to speak in this debate, there was then no judge on the list of speakers. Very recently I have noticed, with great pleasure, that my noble and learned friend Lord Wilberforce has added his name and therefore, basically, I am de trop. However, having read Mr.

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Pannick's article in The Times, I should like, briefly, to support the proposition put forward by the noble Lord, Lord Lester.

Clause 18 of the Human Rights Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. In Committee, I drew attention to the provision for an English judge, if appointed, to have his pension, if it was thought fit, reduced, and in Committee I took the view that that was a thoroughly unsatisfactory provision. My noble and learned friend the Lord Chancellor, with that great generosity of spirit which he represses all too often, introduced on Report the very amendments which I wished in order to ensure that a UK judge appointed to the ECR would in due course receive the same pension as though the ECR appointment had not taken place.

The basis for support of the propositions which I had raised was that it was generally accepted that it was essential that members of this new European Court of Human Rights, who will become full time from November when the eleventh protocol comes into force, should be of the highest calibre and of outstanding quality. As the noble and learned Lord the Lord Chancellor pointed out, if a United Kingdom judge did not receive the pension to which he would have been entitled if he had remained a judge in England, that might provide a powerful disincentive to some of our most able and highly qualified candidates from the judiciary to seek appointment.

Therefore, what was stressed in that debate was the very point made by the noble Lord, Lord Lester; namely, that it is vitally important that we should ensure that the ablest candidates are appointed in due course. For that reason, it is highly desirable to make sure that those who are submitted by the Lord Chancellor and in the order of merit should be adhered to, unless of course there were good and articulated reasons to the contrary.

7.31 p.m.

Lord Grenfell: My Lords, I am very grateful to the noble Lord, Lord Lester of Herne Hill, for raising this important Question tonight. I shall begin by declaring an interest as a member of the British delegation to the Council of Europe's Parliamentary Assembly.

To the extent that I have a difficulty with the proposal enshrined in the Question tabled by the noble Lord, it is more one of sequencing than of substance. Within the entire process of electing judges to the European Court of Human Rights, there is surely a need for an independent expert opinion. To my mind, the question is: at what stage in the process should that opinion be sought, and by whom?

The noble Lord, Lord Lester, suggests that, in any event, it should be sought at the point where the parliamentarians of the Council of Europe's assembly are called upon to review the names proposed by the "high contracting parties", to use the official term, and subsequently vote on them. Sadly, it is here that the noble Lord and I part company. It seems to me that independent expert advice would be more usefully sought at the point at which a high contracting party is

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selecting from a pool of national candidates the three names that will be forwarded for the assembly's consideration, as indeed has been the case in this country.

If one holds, as I do, that each high contracting party has a duty to present three candidates, each one of whom is deemed fully qualified to sit on the court, the selection of those three persons seems to me to be the most crucial stage of the entire process. At that juncture, therefore, independent expert opinion has a very proper role to play and adds force and credibility to the high contracting party's ordering of the three names by preference. But the listing in order of preference should in no way weaken the force of the principle that each of the three should be considered fully qualified, as any of the three could be voted on to the court by the assembly.

That brings me to the question of how democratic the procedures are at present. New Article 22 provides unequivocally for the election of the judges by the Parliamentary Assembly by a majority of votes cast from each high contracting party's list of three nominees. With that settled, I am firmly of the opinion that, once the process has crossed the threshold from governmental nomination to assembly consideration, there should be no further intervention by the high contracting party itself, no pressure through ministerial or diplomatic channels, and no lobbying of delegates in Strasbourg by governments, public or covert, on behalf of a particular candidate. It must be left strictly and exclusively to the parliamentary process embodying the deliberations and recommendations of the Legal Affairs Committee and the ultimate secret ballot by all the members of the Parliamentary Assembly.

The delegates may or may not follow the recommendations of the Legal Affairs Committee. But that is as much their parliamentary prerogative as it is of the Legal Affairs Committee to accept or not the orders of preference of the high contracting parties. The interview process within the Legal Affairs Committee of the assembly is of great importance. In parenthesis, with respect to the existing arrangements, I would add that I would prefer that the length of interview be based on a 15-minute minimum rather than maximum, to accommodate the possibility that either the interviewers or the individual interviewee may find 15 minutes in his or her particular case inadequate. I am aware that the Legal Affairs Committee finds it no small task already to interview more than 100 candidates for a maximum of 15 minutes, but a measure of flexibility should not add unduly to the burden and should be considered worth bearing in the interests of reaching fair conclusions.

I am aware that voices are raised questioning whether parliamentarians can be entrusted to make ultimately the choice that the high contracting parties, and perhaps the national judiciaries, would consider right. That is the price of democracy. With all respect to governments and the judiciary, the scope for making a mistake is not necessarily narrower when three candidates are being selected from a well-populated pool of aspirants than when one candidate is being elected from a list of only

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three, each of whom ought to be fully qualified to take his or her seat on the court. That is why, in my humble opinion, the requirement for a,

    "transparent, thorough, and fair process of interview by an independent expert committee",

should be met by each high contracting party at the nominating stage, affording the assembly the assurance that the best available candidates have been presented to it, and leaving the assembly free to discharge its democratic duty unfettered by further governmental or other, extra-parliamentary, intervention.

As I said at the outset, it is a matter of sequencing rather than of substance that separates me from the noble Lord, Lord Lester, on this important issue. But at the heart of the matter is a principle of the highest importance: the inviolability of the parliamentary prerogative of the Council of Europe's Parliamentary Assembly.

7.36 p.m.

Lord Hardy of Wath: My Lords, I must say that I agree with every word that my noble friend has offered. I served on the Council of Europe for over 20 years. I ceased to be a member last September, but for 12 or 13 years I led my party's delegation. For a great deal of that time I and other British members were incensed and dissatisfied at the way in which the Council of Europe elected judges. That did not apply necessarily to the British nominees, but I raised in our political group on several occasions the absurd situation which then applied.

We would be presented with the names of three people. We would be told to vote for one of them but, usually, no one told us anything about the three people. One could sometimes obtain a little information from the delegation of the country whose judges we were about to select. However, sometimes we would have been better off sticking a pin in the piece of paper to determine our choice of vote. Indeed, on a number of occasions I flatly refused to exercise the vote because I knew nothing about the candidates. That situation went on for a very long time. Indeed, the noble Lord, Lord Lester, might like to talk to his noble friend Lord Russell-Johnston who, I believe, more or less agrees with everything that I am saying. He shared our dissatisfaction about the arrangements.

I must say that I was incensed when I read the article to which reference has been made. It was about eight years ago that I persuaded the noble Lord, Lord Kirkhill, to stand for the position of chairman of the sub-committee on human rights. The noble Lord acquitted himself so well--and I shall now bring a blush to his cheeks, as I am delighted to see that he has just entered the Chamber--that he was almost unchallenged as chairman of the Legal Affairs Committee. He held that position during the most difficult period the Council of Europe has faced while supervising and monitoring the accession of all the countries from central and eastern Europe which, by becoming democratic, qualified for entry.

The noble Lord commanded the confidence of his committee so that, when his term of office expired, having reached the maximum permitted period, he,

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along with his sub-committee, was given the task of supervising the appointment of judges. I accept that there may have been good reasons to suggest that the length of such interviews ought to have been extended or have been capable of extension. But my noble friend has had to interview 117 candidates from 39 countries so far. I do not think the list is finished yet. Had the position been as flexible as Mr. Pannick might have suggested in his article, judges would have been interviewed for another 10 years.

That committee, which may be described as a committee of professional politicians, consisted not merely of my noble friend but of eminent professors of law and experienced and extremely highly qualified lawyers from various member states--the kind of people who do not serve in the British Parliament because the time they would have to devote to Parliament here might inhibit their practice. In other countries, parliaments sit far shorter hours and members of parliament have far more time to practise their professional pursuits. During the interviews my noble friend was accompanied by highly eminent people. It is unfortunate that there appears to have been some downgrading of the quality of the people serving on my noble friend's committee. I shall give way to the noble Lord, Lord Lester, but I hope he will be brief as I do not have much time left in which to speak.

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