By Joseph Willits
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In a paper published today by Policy Exchange, Anthony Speaight, a leading QC and member of the UK Bill of Rights Commission, proposes MP involvement in selecting the next British judge at the European Court of Human Rights (ECHR) in Strasbourg.
Under his plan, a panel of MPs would be responsible for the application process – first interviewing candidates and then making recomendations to the Foreign Secretary and the Secretary of State for Justice.
However, the final decision on the three nominations for the British judge at the ECHR would be made by ministers, carefully considering the findings of the panel of MPs. And appointment would ultimately be decided by the Parliamentary Assembly of the Council of Europe (CoE).
Speaight QC insists on the following requirements for the panel of MPs:
- The panel should be cross-party;
- It should consist of both lawyers and non-lawyers;
- Where possible, the panel should maintain a balance of those critical of the European Court of Human Rights, and those less so;
- It might contain one MP representing a Scottish seat.
Speaight argues that the involvement of MPs in the selection process "would significantly enhance the confidence which the British public would feel in the next British judge".
Candidates would have to "state their attitude as to the degree of interventionism which the Court should adopt", and it would be the responsibility of the MP pane; to examine the outlook and judicial philosophy of the candidates.
The selection process for a new British ECHR, Speaight recommends, should begin as soon as possible. With the current British judge's office expiring in October 2012, elections for the new judge would take place in June 2012. Three nominations from the British Government would be required in March/April of next year.
At present, the ECHR does not enforce any specific way for member states to select their candidates. Speaight says:
"It would, in theory, seem to be perfectly permissible for the Foreign Secretary simply to make his own choice of three names and send them forward without consulting anybody".
Speaight's report concludes that "enthusiasts for the present interventionist jurisprudence may be inclined to regret the likelihood of an appointment of a judge of less activist inclination" but eventually concede that "an appointment which might assuage British suspicion of the Court has, on balance, something to commend it", and vice-versa.
The ECHR is made up of 47 judges – one from each member state – currently chosen by Parliamentary Assembly of the Council of Europe from a list of three names proposed by the governments of each member state.