The selection and election of a new UK judge to the European Court of Human Rights in Strasbourg
The UK’s current judge on the ECtHR, Paul Mahoney, will reach 70 in September – the compulsory age for retiring from the Court – and his term of office will end on 6 September 2016. On 7 June, the House of Commons Library issued Briefing Paper No. 7589 on the processes involved in the UK and in Europe in selecting a successor. The appointment process has two parts, the final decision being made by parliamentarians of the Council of Europe following interviews of candidates recommended by the Member State. The UK’s three candidates are due to be interviewed by the Committee on the Election of Judges in Strasbourg on 19 June 2016, with the final plenary vote expected later that week.
The Court’s 47 judges – one for each Member State of the Council of Europe – are each elected for a single term of nine years. Article 21 of the Convention requires that candidates must be “of high moral character” and must either be qualified to be a senior judge or be “jurisconsults of recognised competence’”, [OED “legal experts”] but judicial experience is not specified. A Council of Europe Advisory Panel of legal experts will advise whether the proposed candidates meet these criteria. The Briefing Paper provides a short summary of the operation and function of the Court:
“The judges decide cases brought to the Court by individuals (or sometimes by States) alleging that their rights under the European Convention on Human Rights have been breached by a Council of Europe Member State. All domestic remedies must have been exhausted first.
For judgments they sit in panels of three or more, but individual judges can decide on whether an application is admissible or not (the vast majority are not admissible). [In 2015, there were 43,135 applications declared inadmissible or struck out, compared with 2,441 cases where a final judgment was delivered, Source: ECHR – Analysis of Statistics 2015]
The Court is not a ‘supreme court’: it cannot overrule national domestic courts, rehear cases, or quash, vary or revise their decisions. Nor can it strike out domestic legislation that conflicts with the Convention. [The UK actually only loses around 1% of the claims brought against it in the European Court of Human Rights, Source EHRC].
However, a judgment against a Member State binds that State under international law. The Court can require Member State governments to bring forward changes to legislation (though it cannot order parliaments to pass legislation). It can also award compensation.
The Court and the Convention are not part of the EU”.
The selection and election process
Unlike the appointment of a domestic judge, parliamentarians have a role in several parts of the process, including the final vote.
The Member State concerned first selects three suitably qualified candidates – at least one man and one woman – through its own national procedures, and the UK Government has chosen to have the Judicial Appointments Commission run the national selection process. In addition to the Article 21 requirements for candidates, supra, the Council of Europe’s Committee of Ministers has drawn up further Guidelines which give some further details on language skills and legal knowledge &c. However, the Briefing Note observes “phrases like ‘Practical legal experience is also desirable’ do not suggest as high a bar as one might expect”.
The position was advertised in November 2015, and in addition to satisfying the CoE Parliamentary Assembly’s requirements, the UK also imposed the following criteria:
“… the UK expects that candidates should have a proven and consistently high level of expertise, with at least seven years’ experience in the areas of law in which they have been engaged. Candidates will normally be expected to have experience in criminal or civil fields, with demonstrable knowledge of the UK’s national legal systems, public international law, public law, Strasbourg law and human rights.
Working as a Judge in the ECtHR will require an aptitude for working as part of a team in an international environment in which several legal systems are represented. The nominee will also need to possess the interpersonal and communication skills necessary to exert his or her influence within the Court”.
In addition there were other selection criteria including: “‘sound judgement’ and ‘a thorough understanding of the political context and wider impact of ECtHR judgments on Member States’”.
In February 2016 a selection panel sifted the applications, and interviewed eight candidates who were also tested for French language competence by the Institut Français. The panel gave the Lord Chancellor a detailed report on all eight candidates, but was asked to recommend only candidates they assessed as suitable. In contrast to previous years where the Lord Chancellor received a ‘longlist’, and was able to consult further before deciding on the shortlist of three candidates (on unpublished criteria), on this occasion the interview panel recommended three candidates to the Lord Chancellor, “to further make sure that the selection process is merit based’.
The three candidates are:
- Tim Eicke QC, a London-based barrister specialising in human rights, civil liberties and EU law
- Murray Hunt, legal advisor to the Parliamentary Joint Committee on Human Rights, as well as a barrister and visiting professor in human rights at Oxford University
- Jessica Simor QC, a London-based barrister with extensive experience in both the European Court of Human Rights and the Court of Justice of the EU.
None is currently a judge.
Once a Member State has a list of three possible nominees, it must send their curricula vitae to the Council of Europe Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights. The role of the 7-member panel is to advise whether their proposed candidates meet the Convention’s criteria for selection; it can hold confidential discussions with the Member State, and it gives the Parliamentary Assembly its opinion on the candidates, again confidentially.
The Advisory Panel of Experts concluded that all three candidates met the criteria in Article 21(1) of the European Convention on Human Rights, and on 4 April 2016 the Lord Chancellor sent the UK’s list of three nominees and their CVs to the Parliamentary Assembly.
Council of Europe election process
Informal meeting with UK Delegation Members of the UK Delegation to the Parliamentary Assembly met the three shortlisted candidates briefly and informally on 12 May. Although the Delegation is not invited formally to interview candidates or comment on their merits, its Members indicated their wish to meet each candidate before the plenary vote in Strasbourg where all of the UK’s 18 representatives in the Parliamentary Assembly (or the substitutes) will be entitled to vote on the candidates.
Interviews by the Committee on the Election of Judges The Parliamentary Assembly’s Committee on the Election of Judges to the European Court of Human Rights is due to interview the three candidates in Strasbourg on 19 June 2016. The 22-member Committee will scrutinize the three candidates’ CVs (in a standardised format) and interviews each of them in person. It will consider whether all three candidates are qualified to do the job, and whether they would contribute to the “harmonious composition of the Court, taking into account, for example, their professional backgrounds and a gender balance”.
If the Committee accepts the list, it has the option of ranking the candidates or recommending the one it deems to be the most qualified. In case of equal merit, preference will be to a candidate of the gender under-represented at the Court – to date it has been male-dominated.. If it rejects the list, as it did recently in relation to those proposed by Slovakia and Azerbaijan, it will ask the Member State to submit a new list.
Final vote in the Parliamentary Assembly The final stage a vote by the Parliamentary Assembly’s 324 parliamentarians from the national parliaments of the 47 Council of Europe Member States. A secret ballot is held during a plenary session, and is informed by the recommendations of the Committee on the Election of Judges. If a candidate obtains an absolute majority of votes cast, they are elected to the Court. If no candidate obtains an absolute majority, a second ballot is held, and the candidate who has obtained the most votes is declared elected. The election is expected during the Assembly’s plenary part-session, 20-24 June 2016.
A cursory Google search will readily reveal a number of adverse comments relating to the “unelected judges” of the ECtHR. A Commons Library Briefing Paper in 2011 noted that there have long been concerns in both the Council of Europe and the UK about how European Court judges are appointed and about their judgments. However, the recent Briefing Paper provides information pertinent to both sides of the argument: none of the current candidates is currently a judge; parliamentarians in the UK and the Council of Europe play an important role in the appointment of a judge, including the final vote. Against this, there is a degree of transparency in the process although the vote of the Parliamentary Assembly Committee and the final vote in the Assembly are by secret ballot. Furthermore, the initial procedures within the UK are to a large extent determined by the UK government.
Section 4 of the Commons Library’s recent document explores criticism and reforms of the method of appointment. However, its non-exhaustive comments on judicial activism of the ECtHR, the prisoner voting cases, and the UK Bill of Rights appear to be somewhat of a non sequitur, given the stated purpose of the document.