Later this month the Parliamentary Assembly of the Council of Europe will decide who will be the next British judge on the European Court of Human Rights. The decision will demonstrate whether the governing criteria for appointment are the merits of the candidates, or national politics.
Sir Nicolas Bratza retires as the British judge at the end of October. The European Convention on Human Rights requires the country for which the vacancy arises to present a list of three candidates for consideration by the Parliamentary Assembly. The pre-eminent candidate on the British list is Ben Emmerson, QC, an international lawyer of real distinction, with more than 25 years’ experience of arguing human rights cases, mainly against but sometimes for the United Kingdom Government, in international and domestic courts. He is also the UN Special Rapporteur on human rights and counter- terrorism, and he is a judge of the International Criminal Tribunals for Rwanda and the Former Yugoslavia, sitting in The Hague.
I have appeared in court against him, and (a less demanding experience) alongside him, on many occasions. His knowledge and understanding of human rights law are exceptional, a view widely shared at the Bar and by the judges before whom he has appeared.
It is no criticism of the other two candidates on the shortlist to say that they cannot claim such relevant qualities and experience. Raquel Agnello, QC, is a highly regarded insolvency and pensions lawyer; Paul Mahoney worked for the Council of Europe for many years, and was Registrar of the European Court (the senior legal administrator) from 2001-05. More recently, he was President of the European Union Civil Service Tribunal.
Although the choice of Emmerson is obvious on the merits, the decision is being made by politicians on the Parliamentary Assembly. There are disturbing rumours that some British Conservatives are working behind the scenes to undermine Emmerson’s candidacy because they think that this country should have “a safe pair of hands” on the European Court.
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Since such manoeuvres do not have the quality of transparency, and because it will be too late to respond if they succeed, it is important now to explain why any such thinking is futile as well as wrong in principle.
The first point is that to reject the best candidate because he would not be “our man on the court”, as some Conservatives see it, would be an unjustifiable insult to the other two candidates. Each of them, if appointed, would serve in an independent manner and would not dream of supinely doing favours to the United Kingdom Government.
Second, anyone who has had anything to do with judicial appointments knows well that the content of a judge’s decisions cannot be predicted before his or her appointment. Judicial independence and responsibility inevitably, and rightly, change the nominee. Dwight D. Eisenhower said that he made two mistakes as President of the United States, “and they are both sitting on the Supreme Court”. Since it is impossible to predict the content of a new appointee’s judgments, the only sensible course is to appoint the best candidate.
In particular, whether an individual’s practice has involved appearing for or against the Government is no indication of the content of his or her decisions after appointment. Some of Sir Nicolas’s judgments have annoyed Conservative politicians, but most of his prior legal work involved representing the UK in Strasbourg. Lord Woolf was Treasury counsel before his appointment to the High Court bench in 1979. He recalled a “half-serious” comment by his very distinguished successor, Simon (now Lord) Brown, that “as I had been a judge about a year it was now no longer necessary always to give judgment against the Crown”.
The third consideration is that to select other than the most meritorious candidate would be very damaging to the United Kingdom. The more distinguished the British appointee, the more influence that judge will have on the other members of the European Court in ensuring that British law and practice are properly understood.
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To focus on political factors would also undermine this country’s efforts to encourage other states to appoint distinguished jurists to the court. That is essential to improve the quality of its decision-making.
Lord Campbell commented in his Lives of the Lord Chancellors (written in the 1840s) that “nothing can be more fantastical than the distribution of prizes in the lottery of legal promotion”. Today we try to ensure a more objective process of judicial appointments, excluding political interference. When the Parliamentary Assembly of the Council of Europe votes later this month, it should resist any attempts to pollute the process.
The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords