European court needs British president if it wants credibility in the UK
European court of human rights should make Sir Nicolas Bratza its president to dispel notion the UK is in thrall to a foreign body
„Unelected“ European judges should elect a British colleague as their leader this summer if they want to dispel some of the myths surrounding the Strasbourg court.
Jean-Paul Costa, the French president of the European court of human rights, reaches the compulsory retirement age of 70 at the beginning of November and his fellow judges will soon have to elect a successor. Obvious candidates are the court’s two vice-presidents: the British judge Sir Nicolas Bratza, 65, and Françoise Tulkens, 68, from Belgium.
Tulkens will be 70 in September 2012, so Bratza has the age advantage. Under new rules introduced last year, judges will serve no more than nine years in future.
Bratza became a judge in 1998 and, although his term has been extended under transitional provisions, he must step down at the end of October 2012. It had been thought he would have had to go sooner, but, conveniently, his retirement date seems to have been recalculated. Even if Costa decides to retire in the summer, Bratza would have little more than 12 months to serve. But the judges would be well advised to make him their leader. Whoever else is in the running could certainly wait until 2012.
The British judge is not campaigning for the presidency, as far as I know. I should make it clear that I have not spoken to him or to anyone on his behalf about this. I don’t even know for a fact that he wants to lead the court, though I have no reason to doubt that he would accept the presidency if invited to take it on.
Indeed, the court needs Bratza more than he needs it. Whenever he leaves Strasbourg, he can expect promotion to the court of appeal; he is already a high court judge on leave of absence. He might even go straight to the supreme court, where his expertise will be much valued. It’s expected that Jonathan Sumption QC will be appointed to one of the current vacancies in the supreme court, establishing the precedent that experience as a full-time trial judge is no longer needed for a place in the UK’s highest court. So Bratza’s fellow judges would be well advised to elect him while they have the chance.
He has huge experience, including five years on the old human rights commission – effectively a first-tier court. He has impeccable European and legal credentials: his father was Milan Bratza, the Serbian concert violinist who settled in London after the first world war, and his mother is from the Russell family, which produced three generations of law lords. His presidency might just help to dispel the popular conception that the UK is being told what to do by a wholly foreign court.
Even if Bratza’s hand on the tiller were to produce no more than a marginal change in the court’s direction of travel, any criticism he might make could not be dismissed in the way that some critics might like to belittle the current president’s comparison between Britain today and Greece under the colonels.
A strong voice at the centre might strengthen the court at a time when an „imminent“ inquiry into a British bill of rights threatens to undermine the UK’s commitment to the European convention.
Talking of myths, one of the hardest to dispel is that the Strasbourg court is unelected. As others have pointed out, its judges are elected by the parliamentary assembly of the Council of Europe from three candidates nominated by each of the 47 member states. The assembly is made up of legislators from the member states, including MPs and peers from the UK.
There is no doubt that some countries have nominated candidates who would not qualify for appointment to their own courts. Britain was the classic example: until Bratza was elected in 1998, the position had gone to retired Foreign Office lawyers with no judicial experience. That would now be regarded as unacceptable; over the past 15 years, the parliamentary assembly has been steadily tightening the rules.
Although diplomats, officials and others who would not qualify for domestic judicial office may be elected to the court so long as they are „jurisconsults of recognised competence“ – whatever that may mean – a panel of experts has recently been established to advise states what sort of people they should be putting forward.
Bratza, of course, would be the perfect example.
Law, Justice, European Court Experts, Europe, International