"The big issue is subsidiarity.  It is accepted on all sides that the main duty of complying with the European Convention on Human Rights lies on the Government's of the member states"

Justice Secretary, Ken Clarke MP, 2011

The Oxford English dictionary defines 'subsidiarity' as 'the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level'.  Intended as a comment on the role of the European Court of Human Rights, the Justice Secretary's emphasis on subsidiarity equally offers up to scrutiny the state of the UK's efforts at institutionalising an enduring culture of respect for Convention rights (and human rights more generally).  

Of course there are other agendas at play.  For those who wish to see the UK sever its ties with Europe altogether (albeit with some confusion over the respective roles of the European Union and Council of Europe), nothing short of withdrawal from the ECHR will do.  Others wish to return to the 'negative' conception of civil liberties embodied in the common law and oppose the 'positive' codification of rights.  But if we assume that withdrawal from the ECHR - and with it the Council of Europe - is an unlikely development then we come back to the question of subsidiarity and how to achieve an appropriate role for the ECtHR through both what I will call 'push' and 'pull' side interventions.   

With respect to the 'pull' side - that is, the rules, operation and behaviours of the Court itself - the UK government has said it will use its presidency of the Council of Europe, which commences this autumn, to promote reform of the European Court of Human Rights.  That the Court would benefit from reforms to aid its efficiency and capacity seems beyond question.   Those are however quite different aims from that simply of containment.  Giving evidence to the Commons European Scrutiny Committee recently, the Justice Secretary remarked that: 

 'An international court, like the court in Strasbourg, should be concerned with the big issues.....It's not a case where you should go wandering off claiming breaches of human rights because something's been done to your dog and you're claiming compensation.'  

 This - and other intelligence - indicates that the UK Government favours amendments to the rules and procedures of the Court itself regarding the admissibility of cases communicated to it.  Certainly this appears a more achievable objective than seeking to institute a model of 'dialogue' between the ECtHR and member states, which would require a re-negotiation of the Convention itself.  But the principle of subsidiarity suggests that the primary responsibility to prevent such cases landing at the doors of the ECtHR rests with the governments of the member states.  Hence, 'push' side interventions are required to stem the flow of cases being communicated to Strasbourg, not just 'pull' side filters.  It can be no coincidence, nor put down solely to population size, that over half of the applications to the Court as at 1st January 2010 were lodged against countries with unenviable human rights records including Romania (8.2%), Ukraine (8.4%), Turkey (11%) and Russia (28.2%).  The quality of domestic human rights protection has a direct bearing on the number of cases finding their way to the Court.
 
The Human Rights Act 1998 embodied the principle of subsidiarity. This was captured in its (then) accompanying slogan 'bringing rights home' and the range of 'upstream' mechanisms it included, intended both to domesticate human rights protection and to prevent the emergence of what is sometimes labelled a 'compensation culture'.   Individuals were for the first time able to bring ECHR claims in the domestic Courts rather than in Strasbourg.  Central to the Act's approach is the promotion of a 'dialogue' between the Executive, Parliament and the domestic Courts: Ministers are required to accompany draft legislation with 'statements of compatibility'.  The Courts must interpret legislation compatibly with the ECHR and are permitted to take account of ECtHR jurisprudence, but unlike other constitutional courts around the world, they are unable to strike down legislation.  Instead they are empowered to issue 'declarations of incompatibility' so leaving the ultimate decisions on whether to amend legislation with Parliament, thus maintaining its historic constitutional sovereignty.  Finally, the Act placed a direct duty on public authorities not to act in a way which was incompatible with the Convention, requiring preventive action by public authorities through the development of human rights positive policy and practice.

The architects of the HRA clearly saw it not principally as a constraint, but as a catalyst - as helping create the 'good society'. Human rights would provide an ethical framework for public discourse and the development of public policy.  It would provide a set of principles for good public services.  It would embed human rights in the justice system.  It would  transform the relationship of power between individual and State.  

There has been evidence - such as that captured in the EHRC's Human Rights Inquiry (2009) -  of the Act influencing public services, positively shaping public and political discourse and empowering individuals.  And of course the success of such legislation is very often invisible to the eye, woven as it is into subtle shifts in culture, behaviour and attitudes.  But what we see today if anything appears to be a widespread and growing disrespect for human rights.  Some of this is active such as those campaigns to scrap the HRA and the assault on the ECtHR in the Daily Mail and Daily Telegraph and by politicians including the Prime Minister and architect of the HRA Jack Straw MP.  Much of it is passive, such as the decisions made by the communications teams of regulators and NGO's not to cast issues such as the poor treatment of older people in hospital  in 'human rights language' for fear this may undermine their case, or the lack of engagement by public authorities in promoting awareness and understanding of human rights among their staff.  

The various domestic actors needed to step forward and assume responsibility for protecting and promoting respect for human rights are instead turning their back.  As a consequence, the very foundations on which greater 'subsidiarity' might be built are becoming shakier by the day.  A growing culture of disrespect for human rights is only likely to turn on the tap to more legal cases, creating the very grievance and compensation culture which government's past and present say they are so keen to avert.  This in turn will ratchet up hostility towards human rights and on it goes.  

So what could be done at the push-side to promote subsidiarity in the truest sense of the word?  Here are five initial ideas for discussion and debate:

Significantly improve the tools and guidance available to public service providers and front-line staff - the words 'human rights' should instil confidence, not doubt and fear amongst public service managers and staff.  This will only be achieved through empowering those in public services to understand human rights in the 'small places, close to home'.  Public service providers should be encouraged and supported to take a participatory approach to improving compliance and  performance, involving customers and clients, staff and other stakeholders.  

Sponsor a campaign to promote public awareness and accurate understanding of human rights -  work with and through 'household name' NGO's, community groups, celebrities and businesses to provide a simple, non-legal, non-academic messages about what human rights are and are not and why they are important.  Emphasise and demonstrate the power the HRA provides the individual with to challenge public bodies to explain how particular decisions have been arrived at.

Implement a new system of Executive transparency and accountability - require human rights impact assessment to be conducted and published alongside Green and White papers and Ministers to publish the reasoning underpinning statements of compatibility.  This will help build consideration of human rights into policy-making and re-enforce Parliament's role by assisting its scrutiny of policy and draft legislation
 
Enhance the architecture for human rights protection and promotion - create common legal status and accountability arrangements for bodies which need necessarily to remain independent of Ministerial interference, including the Equality and Human Rights Commission, Children's Commissioner, Independent Police Complaints Commission and Information Commissioner, making them part of the constitutional architecture.  Clarify the role of these bodies to include advising government and Parliament on matters of compliance and risks to human rights.

Develop models of 'alternative dispute resolution' regarding human rights - empower the various ombudsman to make observations regarding human rights compliance, empower the EHRC to arrange mediation in relation to individual human rights complaints and give the EHRC powers ofinvestigation in relation to human rights

Subsidiarity is an idea that finds strong currency with the thinking underlying the so-called 'Big Society'. Helen Ghosh, Permanent Secretary at the Home Office explains the Big Society' as follows:  

 "We in central government need to focus on the things that only government can do.  What we need to facilitate is that - at the most local, most individual level - people both identify and solve problems in the way that they wish to solve them".   

 I would argue that this is also the key challenge for human rights activism today.  But it is not a new one.  As Eleanor Roosevelt so famously remarked: 

"Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world.  Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works.  Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination.  Unless these rights have meaning there, they have little meaning anywhere.  Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world"

Making rights make sense in everyday life is the best way to promote subsidiarity.