Roger Masterman: The Mirror Crack’d

rogerUntil recently, the Ullah principle – that in giving effect to the Convention rights under the HRA the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ (at [20]) – was something of a mantra for certain members of the senior judiciary.  Since Ullah was decided by the House of Lords in 2004, the core assumption of the principle, that the domestic law of human rights should in content and scope mirror its Strasbourg counterpart, has come to exercise a controlling and pervasive influence over the application, and meanings of, the Convention rights applied under the HRA.

The legacy of Ullah is clearly discernible across a range of judicial comment on the influence of ‘clear and constant’ Strasbourg jurisprudence applied as a result of the HRA; the best known – ‘Strasbourg has spoken, the case is closed’ (at [98]); ‘no less, but certainly no more’ (at [106]) – re-emphasise that the Strasbourg case-law is perceived by some judges as setting the strict boundaries within which a domestic human rights jurisprudence may develop.  The Ullah principle simultaneously treats the Strasbourg case-law as an aspiration and as a constraint, and eschews municipal development – by domestic courts at least – of the Convention rights that cannot be clearly underpinned by reference to clear and relevant Strasbourg authority.

In the recent decision of the Court of Appeal in R (on the application of the Children’s Rights Alliance for England) v Secretary of State for Justice Laws LJ encouraged the Supreme Court to reconsider the wisdom of the Ullah principle.  In a short postscript to his decision (at [62]-[64]), Laws LJ added the following:

“… perhaps I may be forgiven for stating, with great deference to the House of Lords and the Supreme Court, that I hope the Ullah principle may be revisited. There is a great deal to be gained from the development of a municipal jurisprudence of the Convention rights, which the Strasbourg court should respect out of its own doctrine of the margin of appreciation, and which would be perfectly consistent with our duty to take account of (not to follow) the Strasbourg cases. It is a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence. If the road to such a goal is clear, so much the better. ”  

Some clarification from the Supreme Court may well be worthwhile, especially as the cracks in the Ullah principle are becoming all the more evident.

There are, in theory at least, a range of suggested circumstances which might underpin a departure from the apparent application of the Ullah principle.  An entirely non-exhaustive (and highly-simplified) survey of the case-law reveals that in HRA adjudication relevant and applicable Strasbourg jurisprudence should be presumptively followed unless:

1.  Its application would compel a conclusion which would be ‘fundamentally at odds’ with the United Kingdom’s separation of powers (whatever that might be) (Alconbury at [76]);

2.  ‘Special circumstances’ (whatever they might be) justify a departure (Alconbury at [26]);

3.  The court can think of a ‘good reason’ that the Strasbourg jurisprudence not be applied (Amin, at [44]);

4.  It is ‘reasonably foreseeable’ that the European Court of Human Rights would now come to a different conclusion than in the available authorities (R (on the application of Gentle) v Prime Minister, at [53]);

5.  The question to be resolved is one for domestic authorities to ‘decide for themselves’ (Re P, at [31]);

6.  The area is governed by common law and the court is minded to exercise its discretion to depart from the Strasbourg line (Rabone v Pennine Care Foundation NHS Trust, at [113]);

7.  The court attaches ‘great weight’ to a legislative decision which determines the balance to be struck between rights and interests in a way which might be interpreted as being inconsistent with Strasbourg authority (Animal Defenders International, at [33]);

8.  The Strasbourg case-law is past its use-by date (R (on the application of Quila v Secretary of State for the Home Department, at [43]);

9.  The domestic court prefers to follow non-Strasbourg authority (R (on the application of Daly) v Secretary of State for the Home Department, at [27]-[28]).

10.  The judge/court regards the Strasbourg jurisprudence as being not ‘particularly helpful’ (A v Home Secretary, at [92]);

11.  The Strasbourg authority is wrong (or as Lord Neuberger put it in Manchester City Council v Pinnock, at [48]) ‘inconsistent with some fundamental substantive or procedural aspect of our law’);

12.  The Convention case-law is badly-informed (or as Lord Neuberger put it in Manchester City Council v Pinnock (at [48]) ‘appear[s] to overlook or misunderstand some argument or point of principle’);

13.  The court wishes enter into a ‘dialogue’ with the European Court of Human Rights (on the basis that the applicable case law may be wrong or badly-informed or both) (R v Horncastle).

Even where relevant and potentially applicable Strasbourg authority is available, a number of Strasbourg-avoidance techniques appear to be at the disposal of domestic courts.  The currency of the principle can, in part, be explained by the fact that for much of the lifespan of the HRA, these exceptions were – as Jonathan Lewis ([2007] PL 720) has observed – easier to identify in theory than in practice.  And even though it may now be possible to identify a greater number of exceptions to the general presumption – though some of the above may not be worthy of the label – the Ullah interpretation of the obligation imposed by s.2(1) HRA remains authoritative and binding on lower courts.  The Ullah principle is, however, approaching a crossroads.

The retirement of the Ullah principle’s architect and advocate – Lord Bingham – may have marked something of a turning point.  Shortly after, Horncastle provided with perhaps the most visible evidence to date of the United Kingdom’s apex court seeking (ultimately successfully) to engage critically with otherwise relevant and applicable Strasbourg authority.  Since then, an increasing number of senior judges – Laws LJ now included – have questioned whether the principle ought not to admit of greater, more concrete, exceptions and whether it in practice exercises a disempowering effect on the courts.  Baroness Hale, for instance, argued in 2011 that the ‘mirror principle … can suggest a position of deference [to the Strasbourg court] from which it is difficult to have an effective dialogue.’  Lord Kerr, meanwhile, spoke forcefully in Ambrose v Harris against the ‘Ullah-type reticence’ under which ‘it is … considered wrong to attempt to anticipate developments at the supra-national level of the Strasbourg court’ and which dictates that domestic courts ‘should not go where Strasbourg has not yet gone’ (at [126]).  Extra-judicially, Lord Kerr has argued that domestic courts should avoid furthering the suggestion that they are merely the ‘modest underworkers’ to the European Court of Human Rights.

Perhaps most importantly however, the Bill of Rights debate has emphasised that while the legal influence of the Ullah principle is considerable, it has arguably had a damaging effect on political perceptions of the HRA and the link the Act creates between domestic law and the Convention jurisprudence.  The relationship between domestic courts and the European Court of Human Rights that Ullah embodies is out of touch with the widely-held view that the content of our domestic human rights law should not be ‘dictated’ to us by the European Court.

This of course raises more difficult questions.  Many of those who have criticised the Ullah principle have done so for the reason outlined by Laws LJ; that the rigid relationship it promotes increases the likelihood of the Convention being perceived as an alien appendage, runs the risk of embracing the Convention’s deficiencies and becomes insensitive to national quirks or peculiarities.  A good number also reject the view that the Strasbourg standard should be perceived as being both base-line and target for a national rights jurisprudence.

Others – including, it is suspected, a number in the majority of the Bill of Rights Commission – would seek to dilute the influence of the European Court of Human Rights over national law both in order to restore faith in a misguided notion of ‘national sovereignty’ and to simultaneously dilute the level of protection available for rights at the national level.  A number of senior judicial figures appear to sympathise with the extent to which the European Court of Human Rights is perceived to shape the content of national protections; Lord Scott has spoken in in the House of Lords of the need to avoid the ‘occasional extravagances of the Strasbourg Court’ while Lord Sumption – in his FA Mann lecture (and prior to taking up his position on the Supreme Court) – raised similar concerns about Strasbourg overreach.  This arm of Ullah-scepticism seems to suggest that certain elements of the Strasbourg case-law should be resisted, rather than engaged with constructively in order to better the state of the (domestic and international) law of human rights.

The brief survey of exceptions above highlights that – while important – the Ullah principle is not non-negotiable.   The challenge for the Supreme Court, as it was for the House of Lords before it, is to navigate a course between the extremes of unquestioning application of the Strasbourg case-law and unprincipled antagonism towards it.  An acknowledgement by the Supreme Court that practice under the HRA reveals a more sophisticated approach to the Convention case law than the Ullah mantra would suggest may go some way to addressing Laws LJ’s concerns and may, in turn, address what the Bill of Rights Commission seemed to think a lost cause; a sense of domestic ownership over the Convention rights.

 Roger Masterman is Reader in Law at Durham University.

 

Suggested citation: R. Masterman, ‘The Mirror Crack’d’ UK Const. L. Blog (13th February 2013) (available at http://ukconstitutionallaw.org)

 

7 Comments

Filed under Human rights, Judicial review

7 responses to “Roger Masterman: The Mirror Crack’d

  1. Jeff King, UCL.

    Excellent post. Thanks!

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