A new UK judge for the European Court of Human Rights

A new UK judge for the European Court of Human Rights in Strasbourg will be elected by the Parliamentary Assembly of the Council of Europe in June 2016, from a panel of three lawyers nominated by the UK. The successful candidate will replace the current UK judge there, who is due to retire in September 2016. Unlike when appointing a domestic judge, parliamentarians have a role in several parts of this process, including the final vote.

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. The judges sit in panels to decide cases alleging a breach of rights under the European Convention on Human Rights. The Court cannot strike out domestic legislation that conflicts with the Convention, but it can require Member State governments to bring forward changes to legislation. It can also award compensation.

A two-stage process

The appointment process for a judge of the Court has two parts, with parliamentarians from across Europe interviewing candidates recommended by the Member State and making the final decision:

• First the Member State concerned selects three suitably qualified candidates – at least one man and one woman – through its own national procedures. According to the Convention, the candidates must all be ‘of high moral character’ and must either be qualified to be a senior judge or be ‘jurisconsults of recognised competence’, but judicial experience is not specified. A Council of Europe Advisory Panel of legal experts will advise whether the proposed candidates meet these criteria.
• Then these three candidates are interviewed by a committee of European parliamentarians: the Council of Europe Parliamentary Assembly’s Committee on the Election of Judges to the European Court of Human Rights. The Committee includes one member of the House of Lords and one member of the House of Commons. Once the Committee has recommended a panel of three, the whole Parliamentary Assembly – which includes 18 UK representatives – will vote on which one should be appointed.

UK candidates 2016

The UK Government has chosen to have the Judicial Appointments Commission run the national selection process. A panel of judges and legal experts sifted the applications and interviewed eight candidates. Then the Lord Chancellor, Michael Gove, nominated three of the candidates (none of whom is currently a judge):

• 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

The three candidates have informally met members of the UK delegation to the Parliamentary Assembly of the Council of Europe. They 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.

Criticism and reforms

The Council of Europe and the UK have long been concerned about the method of appointment of European Court judges and their quality.

Recent forms to the appointment process include the creation of the Advisory Panel of Legal Experts, and the requirement that the members of the Committee on the Election of Judges must have legal knowledge or experience.

The UK’s national selection process has been criticised for giving the Government too much power, and there have been some calls for greater parliamentary involvement at that stage.

The UK Government wants to change the relationship between the UK and the Court. Judicial activism in interpreting the Convention as a ‘living instrument’ has sometimes been criticised as taking the Convention beyond the intentions of the Member States, although there are signs that the Court is becoming more deferential to Member States. The UK was largely responsible for producing Protocol 15 to the Convention, which if it comes into force would add express references to the principle of ‘subsidiarity’ and the doctrine of the ‘margin of appreciation’ to the Preamble of the Convention. The UK Government also plans to publish proposals for a UK Bill of Rights which are likely to include measures on the relationship between the UK and the Court.