Category Archives: Human rights

Merris Amos: The UK and the European Court of Human Rights

Merris Amos.jpgNow that the furore of the Scottish independence referendum has passed, the attention of politicians and media has once again turned to the dangers of the European Court of Human Rights (ECtHR). In his speech to the Conservative Party Conference in late September, Prime Minister David Cameron stated that the ECtHR needed “sorting out”. Three examples of its judgments were used to support this point: the prisoner voting litigation; the limits on deporting suspected terrorists, including Abu Qatada; and the extension of the HRA to the “battle-fields of Helmand”, an issue which the ECtHR has not directly adjudicated upon although it has given judgments concerning events in Iraq. Shortly after, the Conservative Party released its proposals for changing Britain’s human rights laws. Central to this is altering the relationship between the UK and the ECtHR so that its judgments are no longer binding over the UK Supreme Court and that it is no longer able to order a change in UK law. As any law student will know, this would be a waste of time as neither is currently possible in our dualist legal system. The judgments of the ECtHR are only binding in international law. To support these proposals, five examples of ECtHR judgments are given: prisoner voting; artificial insemination rights for some prisoners; limits on the deportation of foreign nationals who have committed crimes; and limits on the deportation of foreign nationals generally. The fifth example is the recent judgment on whole life tariffs which was misleadingly and erroneously portrayed as a decision that murderers cannot be sentenced to life imprisonment. It is clear that the Conservative Party is not expecting to receive votes from prisoners (who have no vote anyway), foreign nationals or members of the armed forces who also enjoy the protection of human rights law on the “battle-fields of Helmand”.

The idea that the ECtHR is a dangerous meddler in national affairs has gained enormous currency in recent years bolstered by a sympathetic media. In late August journalist Craig Woodhouse, reported in The Sun that the ECtHR ruled against Britain in “three out of the five cases it hears” and that “terrorist, rapists, killers and paedophiles” had all won at the Court, which “overrules Britain once every 47 days on average.” The most recent judgment of the Court concerning UK rules on prisoner voting, where it found a violation of human rights but declined to award the legal costs claimed by the applicants, was reported in The Daily Mail to be the direct result of the Court being “rattled by Cabinet Ministers threatening that Britain could leave”. Politicians from all parties are willing to jump on the bandwagon. In August, Jack Straw wrote in The Times that the prisoner votes and night flights judgments of the Court illustrated, it had “taken unto itself decisions that it should, under its own doctrine, leave to domestic courts and parliaments.” Judges have also descended to the arena. Lord Neuberger, President of the Supreme Court, recently told a conference audience in Melbourne of his suspicions that UK judges were too ready to make assumptions about the position of the ECtHR and then to follow it. And in November 2013 Lord Sumption, a Justice of the Supreme Court, gave a lecture in Malaysia in which he noted that the Court “undermined” the democratic process.

The prisoner voting litigation enables opponents of the ECtHR to easily create a false impression as to its “dangerousness” which it was not as easy to do prior to the first judgment on the question in 2004. It is an issue which is easily understood and captures the public imagination. Just to mention it gets everyone fired up and even encourages spirited debates in undergraduate Public Law tutorials. It is not legally complex and can be presented as requiring a simple “yes or no” answer. Any resolution may also have an impact for a large number of prisoners. In a consultation paper published in April 2009, the Ministry of Justice stated that were all current prisoners serving less than four years to be enfranchised, that would be 28,000 prisoners. However, judgments like this from the ECtHR are extremely rare as the examples recently provided by David Cameron and in the Conservative Party proposals demonstrate. Since 1966, when the UK accepted that individuals could apply to the ECtHR, it is has given more than 500 judgments where the UK was the respondent State. However, those intent upon bashing the Court can usually refer to no more than five, and always include its judgments on prisoner voting. Jack Straw’s recent effort was particularly poor. The only example additional to prisoner voting which he could produce was the Heathrow night flights case, a judgment given in 2003 where the facts took place prior to the coming into force of the Human Rights Act (HRA) and the applicants were not actually able to seek a remedy before the national courts. Furthermore, this is an issue which does not produce a predictable response, particularly from those living under a busy flight-path as obviously Jack Straw, or his constituents, do not. The facts of this judgment would not inspire hatred for the ECtHR in most, but sympathy for the applicants many of whom eventually decided to move from their homes, at considerable cost, to escape the noise.

Rather than a clear illustration of the ECtHR overstepping the boundaries, the judgments utilised by the Conservatives and others are a clear illustration of the failure of those constantly criticising the ECtHR to provide the full picture. It is not the case that this information is inaccessible or available only to lawyers. The ECtHR is particularly good at keeping records and publishes its judgments almost instantly on the website HUDOC for all to see. Its last country profile of the United Kingdom was completed in September 2014. The impact of the Human Rights Act on the applications made to the Court is obvious. In 2012 1,734 applications were allocated to a judicial formation (for admissibility to be determined). By 2013 this had dropped to 913 and the figure given for the period January to July 2014 is just 395 applications. The vast majority of applications against the UK are declared inadmissible or struck out.

It is not clear what period the figures reported in The Sun actually came from and it is also important to note that in its statistics, the ECtHR counts applications, not judgments. A single judgment concerning the UK may be a judgment in the case of two or more applicants. However, for the purposes of consistency, judgments will be the measure adopted here. In 2012, 23 judgments where the UK was the respondent State were given. By 2013 this had dropped to 13 and the figure for January to the end of September 2014 is 7 judgments. Of the 13 judgments concerning the UK decided in 2013, violations of the ECHR or Protocol No.1 to the ECHR were found in eight judgments, no violation in five. If the research referred to in The Sun is limited to the year 2013, it would be possible to state that the ECtHR ruled against Britain in 8 out of the 13 cases it heard that year, or close to “three out of five” as reported. However, if the research is limited to this year, 2014, where of the seven judgments concerning the UK, violations were found in three, this would be two out of five. Similarly in 2012 violations were found on the part of the UK in 10 of the 23 judgments given, once again, two out of five.

Judgments can be chosen and statistics manipulated to support whatever the author would like. But what it is most important to appreciate is that the judgments of the ECtHR are not all the same as the prisoner voting judgments. It is extremely rare for the ECtHR to find a violation of the Convention where rectifying the breach would involve a change to an Act of Parliament with repercussions for a large number of individuals. This is the exception, not the norm and most of the judgments of the ECtHR are not as clear cut, or as appealing as a tabloid headline. Often the facts, and the judgment, are extremely complex. A closer look at all of the judgments of the ECtHR in 2013 where the Court found against the UK illustrates this point.

As already noted, in 2013 in eight judgments the ECtHR found violations of Convention rights on the part of the United Kingdom. In two of these the applicants could not seek a remedy under the HRA before the courts of the UK as the facts they were complaining about took place before the HRA came into force on 2 October 2000. Both concerned deaths which occurred in the 1990s during The Troubles in Northern Ireland. In both the ECtHR concluded on the facts that there had been excessive delay in carrying out an effective investigation into the deaths. In three other judgments during 2013, the ECtHR reached a different conclusion to UK courts simply on the facts of the case meaning that just for these particular applicants, a remedy should be forthcoming. In the case of the first, this was not to be extradited to the United States, and in relation to the second, it found a violation of the Convention as a result of a thirteen month delay in his Parole Board review. The fact that the Convention had been breached was actually admitted to the ECtHR by the UK government. In the third fact based judgment, a convicted criminal successfully challenged his detention following the expiration of his sentence. He was detained, pending his deportation, for an additional 30 months after he should had been released having served his sentence for the crime he committed.

Only two judgments of the ECtHR in 2013 finding breaches of the ECHR on the part of the UK could be described as even approaching the magnitude of the prisoner voting judgments. The first was the judgment in the application of Ms Eweida and three other applicants. Ms Eweida, a practising Coptic Christian, argued that her failure to receive a satisfactory remedy before UK courts for her treatment as an employee of British Airways meant that the UK was in breach of Article 9 of the ECHR – the right to manifest religious belief. For a period of time Ms Eweida was at home without pay as she refused to comply with the uniform policy and conceal or remove her cross. She was unable to successfully receive a remedy for this treatment before the UK courts.

In a complex judgment, the ECtHR concluded that her behaviour was a manifestation of her religious belief and was therefore protected by Article 9. However, in contrast to its earlier case law, which had been followed by UK courts in Ms Eweida’s national litigation, it decided that the actions of British Airways amounted to an interference with Ms Eweida’s rights. It concluded that here the proportionate outcome would have been for the national authorities to afford Ms Eweida a remedy and their failure to do so meant that the UK was in breach of its positive obligations under Article 9. The other three applicants were not successful. This judgment was of enormous importance, not just for those in the UK seeking better protection of manifestations of religious freedom in the workplace, but for all ECHR Contracting States given the ECtHR had modified its jurisprudence, in relation to the interpretation and application of Article 9, swayed by the arguments of UK lawyers.

But although the ECtHR found against the UK, this judgment was not met with the same level of derision from politicians, media and others reserved for the issue of prisoner voting. It was reported that the Prime Minister welcomed the ruling, tweeting that he was “delighted that principle of wearing religious symbols at work has been upheld” but believed current law struck the right balance. Eric Pickles, Secretary of State for Communities and Local Government at the time, told BBC Radio 4 in response to the judgment that there had been a “degree of aggressive secularism” in the UK and that if it was necessary to change the law to ensure people could wear discreet religious symbols, the government would do so. It was reported that Vince Cable, Ms Eweida’s MP, was delighted with the result and saw this as an illustration of the ECtHR standing up for basic liberties. The tone of coverage in all media was either positive or neutral. The Daily Mail hedged its bets describing this as a “just decision” but of course, this “is not to say that the unaccountable foreign judges of Strasbourg have any business dictating the laws of the UK.” It also expressed its reservations about the Court finding against the three other applicants as this proved that “the court’s respect for our national religion and the right of believers to follow their consciences is paper-thin.” It seems that the ECtHR cannot ever win.

The second judgment against the UK in 2013 of significance and with wider ramifications was that concerning the applications of Douglas Vinter, Jeremy Bamber and Peter Moore. All three are convicted murderers and are serving mandatory sentences of life imprisonment with whole life tariffs – meaning they must spend the rest of their lives in prison. Each argued that their whole life orders were incompatible with Article 3 of the ECHR which protects against inhuman or degrading punishment. In a very complex judgment, the ECtHR held that where a whole life order was imposed, what Article 3 required was that there must be some sort of review during the period of the sentence, which allowed the authorities to consider whether any changes in the prisoner were so significant, and such progress towards rehabilitation had been made, as to mean that continued detention could no longer be justified on legitimate penological grounds. It did not prescribe the form that this review should take or when it should take place but observed that many other countries would institute a review on or before the 25 year point, with further periodic reviews thereafter. If the law did not provide for the possibility of such a review, a whole life sentence would not be compatible with Article 3. Although the UK government argued that the present law did provide for the possibility of such a review, the Court was not convinced that the law was sufficiently clear and held there was a violation of Article 3 in this regard. At no point did it recommend that the applicants be released or that whole life tariffs should not have been imposed on the applicants or could no longer be imposed on others. It is entirely possible that the outcome of a review at the 25 year mark would be that the prisoner remain in prison.

Given that the applicants were notorious murderers, Jeremy Bamber, for example, was convicted of the murder of his parents, adoptive sister and her two young children in 1986, it was not likely that any victory at all for them in the ECtHR would be well received back in the UK but the scale of misreporting of this judgment was shocking. In The Telegraph it was reported that the Court had held that whole life tariffs amounted to inhuman and degrading treatment. In The Times, it was reported that the Court had “infuriated ministers by ruling that whole-life sentences for the most notorious murderers are unlawful.” In The Sun the judgment was described as “a bombshell ruling banning British courts from giving our worst killers whole-life sentences.” In the recent Conservative proposals, the judgment is described as “banning whole life sentences even for the gravest crimes”.

The final judgment of the eight was very complex and concerned the intricacies of the interpretation and application of Article 5, the right to liberty. Whilst remedies implemented as a result would have wider implications for other in similar circumstances, this judgment definitely would not capture the imagination of the Editor of a tabloid newspaper. In short, a severely disabled woman successfully challenged her inability to have access to a court to effectively dispute one part of her detention, at the instigation of a council social worker, under the Mental Health Act 1983.

The full picture of the UK’s breaches as found by the ECtHR in 2013, a fairly typical year, shows that there were only two judgments of the ECtHR finding against the UK approaching the scale of impact of the prisoner voting judgments but still a long way off. One of these was well received escaping negative mention in any recent speech, proposal or media coverage. The other only has implications for the small number of prisoners, currently 48 in England and Wales, serving whole life tariffs. Each is now entitled to a review on or before the 25 year mark. But as the UK argued before the ECtHR, prior to this judgment were such a review ever requested of the Secretary of State, he or she could exercise the power of release and this would be done compatibly with the Convention. In its arguments before the ECtHR, the government had no difficulty with the principle of review, just with guaranteeing this clearly, in an Act of Parliament wary of the attendant publicity this would entail.

Is one controversial judgment per year, with limited implications for the general population, something we should be concerned about? Are these the actions of a dangerous judicial dictatorship? Obviously not. Superficial analysis of the UK’s record before the Court is a dubious path to tread. It also means that left out of the assessment of the ECtHR’s value to the UK are those judgments where it has found that the UK is not in breach of the ECHR. These judgments often concern issues of national law over which there has been disagreement for many years. A judgment of the ECtHR confirming the lawfulness of the current position can do much to put continuing disagreements at the national level to rest and allow Parliament and government to resist further calls for reform. Whether or not this is a positive development is open to question. However, it is important to appreciate that this benefit will also be lost should the UK withdraw from the ECHR system of protection. One further example from 2013 illustrates this point. In the application brought by the NGO Animal Defenders International, the ECtHR decided that the political broadcasting ban imposed in the UK by the Communications Act 2003 was compatible with the right to freedom of expression as protected by Article 10 of the ECHR. Parliament had passed this part of the Communications Act 2003 in full knowledge that it was possibly in breach of Article 10. The House of Lords (now the Supreme Court) in a carefully reasoned judgment, unanimously held that the ban was compatible with the right to freedom of expression. Lord Bingham observed that it was highly desirable that the playing field of debate “should be so far as practicable level.” In his view, this would not be achieved if political parties could “in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction.” In its judgment, noting the historical, cultural and political differences in Europe, the ECtHR held that it was for each State to mould its own democratic vision. It concluded that the impact of the ban did not outweigh the convincing justifications for it and that there was no breach of Article 10, the right to freedom of expression.

This significant victory for the UK received little attention in the UK media. There was some coverage of the victory in The Guardian, The Times, and The Independent reported that small advocacy groups would be bitterly disappointed but the judgment was welcomed by the then Culture Secretary, Maria Miller. The only coverage in The Daily Mail, some days after the judgment, concerned the prospect that the ECtHR would find against the UK stating “Britain is in danger of being forced by European judges to allow US-style political advertisements to be shown on television.” It is highly likely that the coverage would have been of a completely different tenor should the judgment have gone the other way.

33.2 million people identified as Christian in the 2011 Census. All of these people, and all others with religious beliefs, benefit from the improved right to manifest religious beliefs in the workplace as a direct result of a judgment of the ECtHR in 2013. Assuming it is of great benefit for the playing field of debate to be “so far as practicable level”, the entire population of the UK profits from the maintenance of the political broadcasting ban. By contrast 48 prisoners may have a review of their whole life tariff at the 25 year mark; 28,000 prisoners may one day get the right to vote; and various individuals have, based on their particular circumstances, have been able to resist deportation or extradition from the UK. It is easy to see why some judgments of the ECtHR are singled out for special mention or harsh criticism whilst others are not.

The war currently being waged on human rights law is an inevitable offshoot of the long standing “wars” on terror, crime, drugs and illegal immigration. It is just too tempting for governments waging these wars to maximise the political mileage by also engaging in warfare against whatever can be utilised in resistance including human rights law, international human rights supervision, and access to justice. However, it is a fundamental principle of human rights protection that human rights are for everyone including suspected terrorists, prisoners, criminals and foreign nationals living in the UK and the result should never be that human rights are for no-one. As a review of the judgments of the ECtHR in 2013 shows, the criticisms of the ECtHR in recent times are lies, manipulation of the truth and spin. 64 million people should not miss out on the benefits provided by the ECtHR as a result of politicians and media whipping up an irrational storm and not giving the whole picture. The people of the UK are too intelligent for that. When the criticisms of the ECtHR are wheeled out, which they are, on a regular basis, it is important to ask why, of the more than 500 judgments given by the ECtHR since 1966, the critics, at most, can only ever talk about five. What about the rest? What are they trying to divert our attention from?

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

 (Suggested citation: M. Amos, ‘The UK and the European Court of Human Rights’ U.K. Const. L. Blog (24th November 2014)  (available at  http://ukconstitutionallaw.org/).

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Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

conorMy first encounter with the fantasies that underpin English public law came in the 1980s. I had just starting teaching constitutional law and was taking my first year students through Dicey: the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it. Outside the classroom, striking miners were being routinely beaten up by the police, their picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The Campaign for Nuclear Disarmament was having its marches banned and its protests inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into which it had been decided to move a new generation of nuclear weapons. Some of my students were even beaten up themselves, on a march against education cuts in London – much to their surprise given what I was teaching them.

Far from confronting any of this from the perspective of principle, the courts were happy to act as a benign legitimating force, their various rulings invariably serving to throw the necessary constitutional camouflage over successive exercises of raw state violence. Eventually the judges overreached themselves even by the standards of the day: their absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services fell apart thanks partly to being published in the US under the protection of the first amendment but mainly to the determination of a European Court of Human Rights to take freedom of expression more seriously than had the supposed guardians of liberty on the Strand. (More on this court later, of course.) The determined commitment of a succession of senior judges to keep Irish prisoners in jail for serious terrorist offences long after it was obvious to all that the men (and in some cases children) involved had been victims of serious miscarriages of justice eventually brought the reckless reactionary partisanship of the senior judiciary to center stage where it could finally be seen and understood by all: the true perspective of the Dennings, the Diplocks, the Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by almost no one, exposed as a construct founded on deceit.

It is invariably easier to expose the iniquities of the past than it is to address the problems of today. The judiciary has remade itself in a way that has been undoubtedly successful; they are certainly not as they were in the 1980s: aloof, national service men, bound by the Kilmuir rules to an extra-judicial omerta that removed them from all public discourse. The first generation of judges after the catastrophes of the late 1980s responsible for this make-over took to human rights as their penance for past sins and when they got the Human Rights Act (for which many of them had quietly campaigned) they went about interpreting it in a way that has been beneficial. But these men (and a very few women) are now largely going or gone, being replaced by a newer generation of senior figures – even more male than in the immediate past – whose pride in what they do seems untainted by any awareness of past wrong. And in their excitement at their success, not only past wrongs are being forgotten but truths are being constructed in a way that bears striking resemblance to that past. This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.

So who are these judges who are at a political front-line many of them probably don’t know exists? We can learn far more than we used to of how they see the world. There are many speeches and public lectures: the Kilmuir rules are long forgotten. The habits of certainty and decisiveness so essential to adjudication are not easily laid aside at the lectern when judges approach it. Perspectives are laid out not as tentative scholarly arguments so much as authoritative findings of fact.   As President of the Supreme Court, Lord Neuberger is understandably one of the more prolific speech-makers. His talk at the Supreme Court of Victoria in Melbourne on 8 August this year introduces us to our first contemporary fantasy: the myth of Whiggish inexorability.   We learn from Lord Neuberger that ‘[t]he history of Human Rights and the United Kingdom in the last 100 years can be divided into several periods’: the ‘dark ages pre 1951 when Europe became ‘sharply aware of the need for [a] strong, clear and codified set of human rights’ when we in the UK did not; the ‘middle ages’ between 1951 and 1966 (when individuals were first allowed to take the UK to the European Court of Human Rights); the ‘years of transition’ between 1966 and implementation of the Human Rights Act 2000 when ‘human rights started to leak into the judicial cerebellum’ and – inevitably – ‘the age of enlightenment’ of today:

There is nothing here about the European choice directly after the war being governed by politics and the fear of the Left that has been so convincingly demonstrated in recent scholarship: the work of Marco Duranti in particular. There is no nod towards the decay of the judges’ standing in the 1980s in the UK that precipitated the move to rights – on Neuberger’s account human rights just sort of leaked into judicial grey matter. And like all such triumphalist accounts of the past, the present is treated as a destination (we are in the ‘still early days’ in our ‘age of enlightenment’), rather than just a brief moment on a journey to somewhere else.

Lord Neuberger is also an exemplar of our second fantasy, that of the civil libertarian common law. The 1980s (and indeed all earlier decades) have been forgotten: ‘there is no doubt that the common law was in many ways the origin and promoter of individual rights’ its only problem being (and the reason for the turn to rights) that ‘it developed such rights in a somewhat haphazard and leisurely way.’ Well that is one way to describe it – the partisanship of the common law for property and contract rights over gender and racial equality; an hostility to trade unions and the Labour party so severe that neither could have survived without legislation directly overturning judicial malevolence; the common law’s service as a base for the serial abuses of liberty with which I began this lecture. In his recent, beautifully written Hamlyn lectures, the celebrated Court of Appeal judge Lord Justice John Laws (The Common Law Constitution ) sings a hymn of praise to the old common law, arguing that it is the unifying principle of the constitution and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’ The recently retired Lord Chief Justice Lord Igor Judge took a not dissimilar line in a recent lecture at University College London where he defended the courts from executive interference against a background of unquestioned acceptance of the fact of the ‘independence of judicial decision making’ as ‘an integral structure of the constitution’.

Now it is only one step from this position to say that actually the common law is so wonderful that it ought to have superiority over Parliament itself, a position once held by the judges in eras gone by of course, but which one might have thought had been laid to rest by democratic revolution. In fact that is not the case. At least some of the judges have allowed the enthusiasm of certain academic scholars for such a possibility to lead them to what Lord Neuberger in his Melbourne speech called ‘the interesting point’ of whether the courts can in fact overturn Parliament itself. A mini-spate of cases in the Supreme Court have allowed the idea to grow without the unanimous disavowal that would surely have been its fate only a little while ago. On any current account the obstacles against such a judicial overriding of parliament would need to be very high: some draconian flouting of the rule of law or what Lord Neuberger called (and even then only possibly) ‘exceptional circumstances’. Perhaps these are what Lord Carswell in Jackson v Attorney General [2005] UKHL 56 referred to (albeit in the context of a law passed under the Parliament Act) as legislative acts amounting to ‘a fundamental disturbance of the building blocks of the constitution’ (at para 178).

The Human Rights Act currently controls judicial capacity here by its well-known reaffirmation of the principle of Parliamentary sovereignty in sections 3(2), 4(6) and 6(2) – well-known that is to everybody except senior members of the current Government who seem to think that the Act empowers the courts to strike down primary legislation – this fantasy of judicial supremacism in human rights law is a delusion seemingly restricted to the upper reaches of the Conservative party, guided by advisers no doubt to invent a problem in order better to able to curry favour with the electorate by dealing robustly with it. The prime minister has had many opportunities over the past few years to demonstrate how important it is to introduce law into the study of Oxford’s PPE degree – the lack of awareness of the contempt of court demonstrated by his intervention in the trial of the Saatchi PAs and the recent, forthright denial that EU legal obligations apply to British money come to mind. But the nadir was surely his apparent (contrived? genuine?) belief that in implementing a declaration of incompatibility issued in respect of the sex abuse register (so as to afford a modicum of due process to those whose lives had been hugely adversely affected by being on it) he was being forced by the courts to act. The whole point of the Human Rights Act – as my colleague professorial research fellow Francesca Klug has pointed out on occasions too numerous to count – is that declarations of incompatibility do not have to be followed. Lady Hale – who was one of the judges in the case - put it with characteristically understated precision in commenting on this incident: ‘Curiously, when introducing the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it’

Repeal of the Human Rights Act – a policy to which the Conservative party is now committed – might well produce exactly that judicial supremacism about which the prime minister complains. Most really strong attacks on the rule of law and/or ‘the building blocks’ of the constitution would inevitably also entail a direct undermining of at least one and possible more Convention rights – the wholesale abolition of legal aid for example would breach the implied right of access to the courts in Article 6, under the Golder and Airey principle. The expulsion of asylum-seekers and others to face torture abroad would engage article 3 and so on. As things stand the judges could surely do nothing about such attacks however fundamental they believed them to be because of the explicit protection afforded parliament when it comes to legislation violating human rights – sections 3, 4 and 6 again. But take that protection away, and the common law solicitude for human rights that would replace it would not necessarily be so beholden to parliament. The primary laws themselves might become vulnerable. This would certainly be very odd: action to end something that could never happen would only serve to bring it about. The fiction of judicial supremacy would be turned into fact by efforts made to deal with it. But abolishing something that isn’t there creates it: in the social as well as earth sciences two negatives do indeed make a positive. Maybe the Tories genuinely don’t care about this – in modern politics the spin is the thing: fantasy rules.

It might seem a little odd to be talking about the British judges in this way, since they have not been at all in the firing line in recent years. The executive and the popular press appear to have a finite capacity for populist indignation against courts and since the decision in the prisoner-voting case of Hirst v United Kingdom in 2005 ((2006) 42 EHRR 41), most of this has been heading out of town, away from the Royal Courts of Justice and towards Strasbourg. True there have been past periods of noisy British scepticism towards the European Court of Human Rights (one thinks in particular of Ireland v UK (1978) 2 EHRR 25 and the Gibraltar decision of McCann v United Kingdom (1996) 21 EHRR 97 holding the UK responsible for the killing of an IRA active service unit) but nothing has been as sustained or as vehement as the head of steam that has been built up over this – it has to be said – relatively minor question of prisoner voting. True the litigant was not ideal from a human rights point of view: an axe-wielding killer celebrating his win with champagne as he pours Youtube abuse on the authorities was something of a low point even in the world of unsavory human rights defendants: And it was unlucky of Strasbourg that they were left holding this particular package when the music stopped – the local courts having deftly avoided trouble by refusing to find any human rights violation when the matter came before them. How the issue has escalated as it has must be a matter for sociologists and political scientists. One of the more remarkable features of the strange times we live in is that the case has produced a myth to which it is own refutation. The myth is that of Strasbourg supremacism: what the European Court of Human Rights says goes. Or as Lord Rodger of Earlsferry famously put it in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at para 98, ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. But if this were true, prisoners would now be voting. Not only are they not voting; the Supreme Court has itself, in R (Chester) v Secretary of State for Justice; McGeoch (AP) v Lord President of Council [2013] UKSC 67, specifically refused even to issue a declaration of incompatibility to put pressure on the government that they should allow such votes. The obligations under the Council of Europe’s Convention on Human Rights are international not domestic: our legal system does not require their implementation, immediately or indeed ever (see article 46). True adherence to international law is an important matter, one that has many repercussions – the UK might find it harder to tell other countries what to do with regard to human rights; it might find itself in trouble at the Council of Europe; the UK judge at Strasbourg may end up lunching alone; and so on. Importantly for present purposes none of these effects is legal, or more precisely legal in the domestic sense.

The extraordinary way in which our public culture has been mustered to savage the Strasbourg court is one of the dismal wonders of our politically constricted age. That court has rescued the English common law from itself on far more occasions that it has made itself an unnecessary nuisance: the maltreatment of gays purely on account of their sexual orientation (Dudgeon v United Kingdom (1981) 4 EHRR 149); corporal punishment in schools (Campbell and Cosans v United Kingdom [1982] ECHR 1); the inhuman and degrading treatment of internees (Ireland v United Kingdom (1978) 2 EHRR 25); the deliberate shooting of suspected terrorists (McCann v United Kingdom (1996) 21 EHRR 97); draconian contempt laws that prevented campaigning newspapers from exposing wrong (Sunday Times v United Kingdom (1979) 2 EHRR 245); long periods of detention without trial Brogan v United Kingdom (1988) 11 EHRR 117); cruel invasions of privacy (Kaye v Andrew Robertson and Sports Newspapers Ltd [1991] FSR 62) – all unnoticed by the common law’s supposed celebration of individual rights, not leaking into ‘the judicial cerebellum’ so much as being rammed into it by Continental judges in the teeth of domestic opposition. Often this opposition has been led by politicians of course: the annoyance at having executive discretion constrained combines with awareness that the Strasbourg court will not answer back to produce a temptation to play to the gallery that is rarely resisted. But at least politicians have the excuse that they need votes and therefore have to please the Mail, potential UKIP voters and others who for various reasons are disinclined to look honestly at the facts. What excuse do British judges and former judges have for their recent attacks on the Court?

There is a long if not venerable tradition here of British mistrust of what Strasbourg does. The distinguished lawyer F A Mann once gave revealing expression to it in a note in the Law Quarterly Review inveighing against the majority judges in a leading Strasbourg case not on the basis of what they said but on account of the puny countries from which they came: (1979) 95 Law Quarterly Review 348. In the politer 1990s as the chastened judges rebuilt their reputation, such modest recoiling from Strasbourg’s incoherence as there was produced only occasionally expressed judicial puzzlement and a range of tentatively-articulated extra-judicial speeches in favour of incorporating the Convention into UK law and so giving British judges the first say over what it meant, a good example being the late Lord Bingham’s, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 Law Quarterly Review 390.

Now though we seemed to have entered a new era of vulgarity. Perhaps it was Lord Hoffmann who started this with his famous speech in 2009 to the judicial studies board on the ‘Universality of Human Rights in which he paraded a startlingly ridiculous set of remarks from a dissenting judge on the Strasbourg bench as though they were typical of agreed interventions by a unanimous grand chamber. Lord Judge’s recent interview in Counsel magazine was sufficiently forthright to receive the doubtful accolade of the following Daily Mail headline ‘HUMAN RIGHTS COURT “IS A THREAT TO DEMOCRACY”: EX-LORD CHIEF JUSTICE BLASTS UNELECTED STRASBOURG JUDGES’ There is another fantasy here, that of the neutral judge, the convention that he or she stands above the eddies and flows of the political. No doubt Lord Judge believes that he is making an apolitical point when he writes of the supremacy of parliament and of the need for judges not to get involved in political questions. But saying as much these days is in itself a political intervention. Lord Sumption manoeuvred himself into exactly the same position in his F A Mann lecture lecture on judicial and political decision-making in 2011, shortly before he took up his position as a supreme court judge. His excoriation of the tendency of the Strasbourg court to develop its jurisprudence across all 47 member states in a way which conflicted ‘with some very basic principles on which human societies are organised’ grew out of his belief that the Strasbourg jurisprudence had got out of control, with its ‘large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail’. But calling for the court to pull back is itself a political intervention. The Conservatives echo this critique when they call for the Strasbourg Court to disown its jurisprudence on the evolving meaning to be accorded rights in the Convention. In doing this they are mimicking the American emphasis on original intent dreamed up by Reagan’s attorney general Ed Meese and supported by the anti-federalists and Christian right as a way of providing scholarly cover for the forced retreat of the US federal government on the one hand and the overturning of the celebrated abortion decision Roe v Wade on the other (In seeming through their arguments to eschew the world of politics both Lord Judge and Lord Sumption are in fact entering that world, their conservative position disguised as neutral by the judicial garb one has just taken off and the other was just about to out on.

A subset of the fantasy of Strasbourg supremacism, encouraged by Lord Rodgers’s ill-advised plunge into Latin, is that Strasbourg’s cases are required to be followed by the British courts.   As even first year law students know, this is simply not the case. The Human Rights Act could not have been clearer in section 2 when it required of the judicial authorities interpreting the Act that they take into account such jurisprudence – no further requirement to (in the English common law sense) ‘follow’ such decisions appears in the Act. Now it is perfectly true that the courts here themselves have tended to support Strasbourg decisions (Lord Bingham’s ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323) on the sensible basis that it is wise to keep in tune with a body to which your own litigants (or at least the non-governmental ones) can appeal. Never invariable, that mirror principle has loosened up of late, with the courts treating the Strasbourg menu as if not quite a la carte then at least one from which there is a decent choice, including if needs must a house special grown entirely from British produce: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. Strasbourg has on the whole gone along with this, conceding some positions to help keep the peace (as in Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 (GC)) revisiting its case-law in light of guidance from their lordships, (Animal Defenders v United Kingdom (2013) 57 EHRR 21 (GC)) and even recanting when it has been caught out in foolishness (Z v United Kingdom (2002) 34 EHRR 97). This is what all informed observers call ‘dialogue’ – it is not dictatorship. The Conservative Party’s recent peculiar set of proposals, already referred to, for ‘changing Britain’s human rights law’ was full of invective against the Strasbourg court and this led its authors to conclude that the Human Rights Act needed to go (not Strasbourg, oddly). But why the Human Rights Act? The crime is that all this Strasbourg rubbish (‘problematic jurisprudence’) is getting into our law (‘often being applied’) and this has to stop. But then a bit later the paper volunteers that Strasbourg is ‘creating legal precedent for the UK’. So which is it ‘often’ or ‘always’? The paper appears to believe it is both, simultaneously. If section 2 did not already exist it would be produced as the solution to a problem – Strasbourg supremacy – that is simply not there, or at least not there in our domestic human rights law.

I end with the largest fantasy of all, the fantasy that drives all the others on this little island, or accurately a bit of this little island, and which is the only reason I can find for what would otherwise be incomprehensible. Lord Neuberger has it spot on when he told a Cambridge audience in February this year that ‘[t]he loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche’ and that it is therefore understandable that ‘a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment’ It is not one that some have been able to make, especially those, it seems, whose entire education has never required departure from the quads, cloisters and colleges of past glory or any kind of mustering in with that England known to the other ninety per cent. The Conservative part of the government increasingly gives the impression that the Act of Union with Scotland was the beginning of an heroic English age of imperialism to which we can now return, the people cheering from the sidelines as they did when Disraeli paraded Victoria as Empress of India.   Down that route is a provincial backwater peopled by well-educated fools, shouting loudly. No judge, past or present, should be encouraging this fantasy of English exceptionalism, especially now as it gathers such populist steam.

 

Conor Gearty is Director of the Institute of Public Affairs and Professor of Human Rights Law LSE. This is the text of the 36th Corbishley Lecture, held at LSE.

 

Suggested citation: C. Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ UK Const. L. Blog (13th November 2014) (available at http://ukconstitutionallaw.org)

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Alan Bogg and Keith Ewing: Pensions dispute: Bullying tactics violate workers’ human rights

boggaKeith EwingHow should workers respond to bullying and intimidation tactics used by employers during industrial action disputes? Two leading academics consider the current dispute in the university sector.

It is a remarkable feature of British labour law that the worker who takes industrial action is usually regarded as having committed a repudiatory breach of contract. This is true in relation to strikes, as well as industrial action short of a strike, such as a work-to-rule or a refusal to undertake certain duties.

This remains true even if the strike is a lawful strike, directed at legitimate purposes and fully compliant with the strict rules on notice and ballot requirements. It also remains true regardless of the purpose of the action – whether it is designed to improve terms and conditions of employment, or, in the case of the current UCU dispute, defend long established terms and conditions of employment.

The legal status of industrial action means that employers have several sanctions they can impose on staff. In the current dispute between the universities and their staff over pensions, employers are no doubt being advised by their lawyers about how best to retaliate. These lawyers are likely to have been trained by the very people against whom they are now advising. One line of advice we have seen is that the employers may seek to recover from academic staff any losses incurred by the university, should the university be sued by students as a result of the dispute.

Historically, there are examples of legal steps of this kind in the law reports. They stand out because the practice of suing strikers for breach of contract is exceptional. Most employers during a dispute want nothing more than to resolve the strike through negotiation. Most employers realise that bullying individual strikers through suing for breach of contract is petty, short-sighted, and inflammatory.

It is a matter of surprise and horror that some university employers are threatening precisely to take such action against individuals participating in an assessment boycott in the current dispute over the pension settlement. The senior management teams of at least three universities seem to be taking us back to Taff Vale with this intimidation of individual strikers. Taff Vale was the infamous case in 1901 in which a railway company sued a trade union for damages caused by a strike.

What is being proposed now over 100 years later is of course much worse. Employers can no longer sue trade unions for damages in lawful disputes such as the UCU pensions dispute. Even if they could, there would be a cap on the amount that could be extracted by way of damages from a union – a cap laid down in a statute introduced by the Thatcher government. But there is no such protection for individuals, this having been thought to have been unnecessary in our more civilised industrial past.

We have no idea who is providing legal advice to employers. It appears, however, that this is not the first time that this tactic has been contemplated by employers and others. In the course of a previous dispute in the university sector, a leading law firm advised that

 

…. if a university is sued by a student for breach of contract, in relation to the impact of the industrial action, the university could seek to join members of staff to that litigation and to recover from them any damages which are awarded to the student. This is, of course, not necessarily a line which universities would wish to take. Nevertheless it may be something which could be communicated to staff as a possibility by institutions wishing to take a particularly robust position in relation to the dispute. For example when communicating any policy on deductions, universities could also state that they reserve their legal rights to join members of staff as parties to any litigation brought by students.

 

We suspect that the current threat to sue is an empty threat, designed to intimidate individuals and discourage them by spreading fear. So far as we are aware, there has been no reported case since 1959 in which an employer – university or otherwise – has sued an individual striker for breach of contract. The last employer to do so was the National Coal Board, which brought proceedings against pit deputies who had refused to take part in Saturday working, bringing production to a standstill as a result.

Apart from the fact that it was decided so long ago, the notable feature of the pit deputies case is that the principles for the assessment of damages in unusual cases of this kind are very unclear. As a result, the decision provides absolutely no basis for the universities’ facile claim that they will (i) seek to recover damages from employees, (ii) assessed on the basis of any losses they suffered as a result of an action by students. It is not so simple, no matter how hard the employers may bark otherwise.

In the pit deputies case, there was no question of the workers being liable for the loss of production caused by the industrial action. At best, they were responsible for the losses incurred in hiring replacements to provide the cover necessary on a Saturday. Although only a small sum of damages was eventually assessed, as a result the decision remains highly contestable, not least because it takes no account of the employer’s duty to mitigate its losses in contract claims.

If the threats are empty gestures by bullying employers, the universities issuing such threats may be regarded as breaking the employment contract through a breach of the term of mutual trust and confidence. This has been used as a standard to challenge other forms of workplace bullying and harassment by employers, and the issuing of threats known to be empty but with the objective of intimidating, particularly in an otherwise lawful dispute, would seem to constitute a repudiatory breach of contract by the employer.

Why is this important? One reason is that it is unfair to dismiss an employee for taking part in lawful industrial action. To engage in conduct during industrial action that by its bullying nature constitutes a repudiation on the part of the employer would provide for employees to leave en masse and to claim that they had been constructively dismissed. By their conduct, university managers run the risk of exposing their institutions to even greater liability than they probably anticipated.

More importantly, however, on 8 April 2014, the European Court of Human Rights published a crucially important decision in a complaint brought by rail union RMT about restrictions in British law on the right to strike. Although the claim was unsuccessful on the merits, the Court held that the right to strike is ‘clearly protected’ by the European Convention on Human Rights, Article 11. Penalising strikers in lawful disputes through threats to sue appears to be incompatible with the growing case law under Article 11.

The imposition of financial penalties on individual workers for participating in lawful industrial action is a basic violation of workers’ human rights as recognised by the Strasbourg court. Under the Human Rights Act, domestic courts must have regard to that European jurisprudence in developing the common law, including implied terms such as mutual trust and confidence. The management teams at the ‘Taff Vale’ universities, as well as their wise legal advisers, will surely be aware of these recent developments.

While these new developments are being processed, we note that some of these universities portray themselves as defenders of human rights, with fancy human rights programmes. What are students to make of this hypocrisy? That these universities are prepared to trade in human rights only as a commodity? That these universities do not respect the human rights of those they employ? That these institutions have been so damaged by their managers that they have no intellectual credibility? Intellectual credibility is also a commodity.

The university employers have provided an open goal for the Strasbourg court, by ruthlessly exploiting one of the last unprotected frontiers of British labour law. As we have explained, British workers who take part in a strike or other industrial action have a right not to be dismissed for doing so. But they have no express protection against action short of dismissal of the type now threatened by the ‘Taff Vale’ employers, unless they were to resign and claim that they had been constructively dismissed by the bullying conduct of their employer.

But no one should have to resign from their employment to assert their human rights or to protect their human rights from the bully. If these threats are carried out, their union would surely support the workers in question – to hold these employers to account in the domestic and European courts. It would be remarkably ironic if these human rights defenders were to become human rights defendants It would also be extremely helpful to workers everywhere if by their stupidity the university employers were unwittingly to contribute to the introduction of legislation protecting the right of every worker not to suffer detriment for engaging in lawful activity.

That would be quite a legacy.

 

Alan Bogg is a Professor of Law at Oxford University.

Keith Ewing is a Professor of Law at King’s College, London.

 

This post originally appeared on The Institute of Employment Rights Blog.

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Tom Hickman: ISIS, passports and Magna Carta: New national security powers raise complex issues

tomOn 1 September the Prime Minister made a statement to Parliament in which he indicated that the Government was considering introducing the following new national security measures:

  • Powers to enable the police to confiscate passports at borders if they suspect an individual is seeking to travel to support terrorism, for a period allowing them to investigate the individual concerned. This will include “safeguards and … oversight”.
  • A power to exclude British nationals from the UK.
  • Placing no-fly list arrangements on a statutory footing.
  • Requiring persons subject to TPIMs to engage with the Prevent programme.
  • Ratcheting-up the statutory restrictions that can be imposed on individuals under the TPIM Act 2011 to include “stronger locational constraints” either through use of exclusion zones or relocation powers.

The announcement followed atrocious acts committed by ISIS in beheading Western hostages and, in particular, the fact that British citizens were implicated. In her Conservative Party Conference speech, the Home Secretary said that a new counter-terrorism bill would be introduced by the end of November.

Although the Prime Minister made a welcome reference to the need to avoid a “knee-jerk” reaction to ISIS, these proposals have a back-of the envelope feel. In addition to clarifying precisely what is proposed, it needs to be understood why these powers are—given those already in existence—required to meet the needs of the police and security services.

Several discussions in the media since the Prime Minister made his statement have demonstrated a lack of understanding of what is proposed and what powers are already available. A survey of how the proposals fit within the suite of national security powers already available is therefore worthwhile.

Removal of passports

Reference is often made by the general public to a person being granted a passport in terms which are intended to mean a grant of citizenship. Correspondingly, people often refer to a person being stripped of a passport when they mean stripped of citizenship. It is often not appreciated, even by lawyers, that as a matter of UK law the grant of a passport is quite separate from the grant of citizenship and that under UK law a national has no right to a passport.

A British citizen benefits from many rights and privileges, including a right of abode in the United Kingdom protected by s.2, Immigration Act 1971. But British citizenship does not entitle a person to a British passport. Under the peculiarities of the British constitution, the Secretary of State retains a power to refuse or cancel a passport under the royal prerogative.

The conferral of a passport is essentially a diplomatic act, which both confirms the identity of the bearer and confirms their status as a British national under the diplomatic protection of the British Crown. British passports include a request on behalf of the British Crown to “all those whom it may concern” to “allow the bearer to pass freely without let of hindrance, and afford the bearer such assistance and protection as may be necessary.” Each passport states that it “remains the property of Her Majesty’s Government …and may be withdrawn at any time.” If a person refuses to return a passport upon request they are presumably guilty of theft.

The power to revoke and refuse passports has long been regulated by a published policy, a policy that was updated as recently as 25 April 2013. The policy states amongst other things that the power may be invoked to stop “British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity”.

The removal of a passport does not therefore affect a person’s right of abode in the UK, which is statutory, nor – rather importantly – does it actually remove a citizen’s right to travel abroad or come and go from the United Kingdom. This is a common law right or freedom that is also embodied in Article 12(4) of the ICCPR, which states: “Everyone shall be free to leave any country, including his own”. The effect of withdrawal of a passport is to frustrate the exercise of that right by denying an individual a universally accepted from of identification and by withdrawing the request of the Crown that he or she be given free passage. But a person who travels abroad having had their passport withdrawn, has done nothing wrong.

The Prime Minister’s proposals relate to the extension of the Home Secretary’s power relating to passports to the police, allowing them to withdraw and confiscate passports for a short period pending an investigation. However, given that the power does not actually preclude a person from travelling abroad—it simply makes it more difficult for them to do so—it doubtful whether an extension of this power is really the right way to approach the issue. A more appropriate power might be a temporary travel ban. But as we shall see Parliament has already made provision for travel bans under the Terrorism Investigation and Prevention Act 2011 (“TPIM Act”) and therefore any such new power needs to be considered alongside those already available under the TPIM Act.

Before turning to the TPIM Act, however, we should consider the power to deprive people of British citizenship under section 40 of the British Nationality Act 1981. This power has historically been used to strip dual citizens of their nationality, allowing them to be either deported or excluded (by a legally separate but often contemporaneous order) from the UK. The Bureau of Investigative Journalism reported in December 2013 that the use of the deprivation power had “dramatically escalated” to prevent jihadists returning to the UK.

A controversial amendment to this power made by section 66 of the Immigration Act 2014, which came into effect in July this year, allows the Secretary of State to deprive people of British citizenship even where this would make them stateless where the individual has committed acts that are prejudicial to the vital interests of the country.

But despite its breadth, the power of deprivation of citizenship has important limitations. The power to render a person stateless does not apply to non-naturalised citizens. It must also be doubtful whether the deprivation power could be used against persons seeking to travel to the Middle East for the first time, as opposed to returning jihadists, since such persons would not have yet done any acts prejudicial to the interests of the UK. Furthermore, it would not be appropriate for this power to be used for the purpose of investigating a suspect, since its effect is permanent.

Of more significance therefore is a power under the TPIM Act to impose a “Travel Measure” on an individual reasonably believed to be involved in terrorism related activity. Schedule 1 paragraph 2 of the TPIM Act establishes a power with the explicit purpose of prohibiting a person from leaving the United Kingdom (or alternatively requiring prior notice before leaving the UK). It also includes a power to surrender a UK passport and to hand-over and not to possess any other passports and travel documents. The TPIM Act also enables the power to be exercised on an urgent basis where required.

TPIMs are usually associated with curfews, tags and limits on association. It is often overlooked that the TPIM Act can be used in a more limited fashion and that a Travel Measure can be imposed whether or not other TPIM Measures are imposed. From the perspective of the authorities, it has some obvious advantages over the passport deprivation power, in particular that it imposes a prohibition on leaving the country and that the prohibition is backed by criminal penalties.

The TPIM Act also has various safeguards for individual liberty, such a requirement for judicial approval of any Measures imposed, special advocate procedure to test the justification for the Measures, requirements to renew and keep the necessity for such measures under review, and oversight of the Independent Reviewer of Terrorism Legislation (“the IR”). Not only does the prerogative not carry with it such protections, the exercise of the prerogative power can be indefinite, whereas any TPIM Measure has a maximum lifespan of two years in the absence of renewed engagement in terrorism related activity.

Therefore if the police have reasonable grounds to believe a person is seeking to leave the UK to engage in jihad abroad they could seek an urgent Travel Measure from the Secretary of State under the TPIM Act. This may require a new administrative process for border police seeking urgent TPIMs, but given that Parliament has established this power – with important safeguards – there would need to be a compelling reason why the police should be conferred an analogous, and less effective, power. There is also considerable value in maintaining centralised decision-making both for consistency of decision-making and as a disincentive against over-use of the power by police. It would also ensure that the safeguards imposed by Parliament were engaged.

It follows that if the Government seeks new powers outside the TPIM Act, it will have to explain why those under the TPIM Act – designed in part for precisely these circumstances – are inadequate. One response may be that persons leaving the UK would not yet have engaged in terrorism related activity, which is the precondition for a TPIM Measure. However, given the extremely broad way that the concept of terrorism related activity is statutorily defined, and the related concept of terrorism, it seems unlikely that the Government would contend that it is not capable of applying to persons who seek to leave the UK to engage in jihad. The Government might say that the power should be exercised on the basis of suspicion rather than reasonable belief (another condition for imposing a TPIM Measure), but Parliament would no doubt take considerable persuading that such a power should be exercised by police on the basis of suspicion alone, not least as Parliament decided when it enacted the TPIM Act that TPIM Measures should only be imposed on the basis of reasonable belief.

Nonetheless, whilst we are entitled to be sceptical given the lack of explanation currently available, there is at least potentially a gap in the Government’s armoury which the new power could fill.

This discussion may have prompted the thought amongst some readers whether it remains lawful for the Secretary of State to exercise prerogative powers intended to prevent a person believed to be involved in terrorism related activity from leaving the United Kingdom, given that Parliament has legislated powers on precisely this issue subject to numerous safeguards. It is a central principle of constitutional law that the prerogative cannot be exercised where Parliament has legislated on a subject. And here resorting to the prerogative rather than seeking a Travel Measure under the TPIM Act denies individuals a right of appeal and many associated protections (including a 2 year limit) that accompany a Travel Measure. Using the royal prerogative to deprive a person of their passport can therefore be used as a means of bypassing the protections in the TPIM Act.

This is perhaps most obvious when persons are deprived of passports after a Travel Measure comes to the end of its 2 year maximum term: the removal of a passport to continue, in effect, the travel restriction based on same factual case is difficult to reconcile with Parliament’s stipulation that Travel Measures will not endure for longer than 2 years in the absence of re-engagement in terrorism related activity.

The Prime Minister referred to litigation seeking to test this point (including one case in which the author acknowledges a role acting for a Claimant) and the Prime Minister stated to Parliament that the Government is preparing legislation in case such challenges succeed.

However, irrespective of such challenges, it is time that the prerogative power to withdraw passports is put on a statutory footing in its entirety. As long ago as 1980 Sir William Wade described the power in his Hamlyn Lectures, as, “a murky administrative area where there is a crying need for clarification and legal right”: Constitutional Fundamentals, Stevens & Sons, p.52. Legislating for the withdrawal of passports would not only give the power a proper democratic basis suitable for the modern era, it would enable proper protections to be put in place for individuals. The incentive for Governments is that it would enable the power to be made more effective by pairing it with actual prohibition on travel and removing the legally problematic overlap of the prerogative and the TPIM Act regime.

Returning to the current proposal, if the police are to be given new powers to temporarily deprive persons of their passports this should be a self-contained statutory power or an extension of the TPIM Act and not an opportunity to provide statutory endorsement by a side-wind for a prerogative power which is out-dated and in need of reform.

Preventing British citizens returning to the UK

The idea that British citizens should be prevented from returning to the UK raises myriad issues, legal, moral and practical. The most immediate legal issue is section 2 of the Immigration Act, which identifies the right of abode as a core incident of citizenship.

But there is also a deeper constitutional principle in play here. Blackstone in the Commentaries wrote in 1765 that, “every Englishman may claim a right to abide in his own country for as long as he pleases; and not to be driven from it unless by the sentence of the law. … For exile, or transportation, is a punishment unknown to the common law…” (Vol i. p.133).

Indeed, it is a mark of how deeply rooted this principle is that any legislation in this field would need to amend or depart from Magna Carta itself, the famous chapter 29 of which (which is still on the statute book) states, “No Freeman shall be …outlawed, or exiled, or any other wise destroyed…” save by lawful judgment of his peers. The Prime Minister appears to have forgotten about Magna Carta. But its sentiments were echoed by Dominic Grieve, the former Attorney-General, who stated in Parliament, “I share the concern that has been expressed about the suggestion that British nationals, however, horribly they may be alleged to have behaved, should be prevented from returning from this country.” (HC Debs 1 Sept 2014 c.32.)

From a more practical perspective, the idea of refusing to allow citizens to return to the UK reflects a sense in which the UK Government would like to think of such individuals as ‘somebody else’s problem’. But such an attitude is unlikely to win favour amongst other States left with the problem of un-returnable British jihadists in their midst, and they may well simply not accept the position of the UK Government and seek to return the individual to the UK.

If individuals return to the UK having acted in a manner inconsistent with their duty of loyalty to this country and to British law then the proper response is for them to face due process of British justice and be prosecuted for one of the wide array of terrorism offences, or for treason.

No fly lists

Just as it is appropriate for the prerogative passport power to be placed on a statutory basis, so should the arrangements for no-fly lists. And for the same reasons: (1) their legal origin and legal effect are obscure; (2) they represent an interference with individual freedom of movement and to come and go from the UK unimpeded; and (3) they lack adequate legal safeguards. The Government’s suggestion that these should be put on a statutory basis is therefore to be welcomed.

TPIMs and Prevent

In principle there is sense in the suggestion that there should be engagement with TPIM subjects other than through the police and MI5, such as through the Prevent programme or possibly the probation service, particularly if combined with a relaxation of their obligations as they near the end of a TPIM and their return to ordinary life. But there are real complexities here particularly if it is sought to compel engagement by imposing it as a TPIM Measure backed by criminal sanctions.

These difficulties arise from three features of the regime: (1) TPIM subjects usually maintain their innocence of the allegations against them and often, although not invariably, of extremist views; (2) they are subject to TPIMs on the basis of secret evidence; and (3) nothing has been proved against them and—a point that is often overlooked—do benefit from a presumption of innocence, which cannot be simply abandoned in this context. In the light of these three factors, it is difficult to see how many TPIM subjects could constructively engage with programmes insofar as those programmes are premised on their guilt, or could reasonably be compelled to do so. Furthermore, such individuals will understandably be fearful that anything they say or do might be deployed against them either in open court or, possibly, in secret.

There is also an important difference in principle between the essentially negative duties imposed by a TPIM, even those which may be enforced by limited positive duties (such as reporting to a police station to prevent overseas travel), and a positive requirement to attend meetings and engage with a prevention-orientated programme.

Therefore whilst there is undoubtedly room for new thinking and new initiatives in this context, the difficulties should not be underestimated and the proposals will require very careful scrutiny.

Relocation powers

The suggestion that the Government might re-introduce the power of relocation that previously existed under the control order regime is a suggestion which will raise concern across the political spectrum (I leave aside the idea of exclusion zones).

In 2011 Parliament accepted that relocation could not be justified given its serious detrimental impact on individuals by cutting them off from family, friends and their local community. It operated as a form of internal exile, justified by reference to secret evidence. It was one of the most resented aspects of the control order regime by affected persons and local communities. Parliament accepted that the financial saving from the surveillance budget that such a power allowed could not justify the encroachment on civil liberties that it entailed.

The Government appears to have drawn the idea (or at least support for the idea) of backtracking from the TPIM Act in respect of relocation from the recent report of the IR. In his report published in March 2014, amongst a number of recommendations for increasing safeguards under the TPIM Act, such as narrowing the definition of terrorism related activity and adopting a balance of probabilities threshold, the IR stated the “the time has now come to revisit the issue” of relocation arguing that, “Locational restraints have the ability to reduce the abscond risk, to rebuild confidence in TPIMs, to disrupt terrorist networks and to reduce the surveillance budget. Relocation was repeatedly described by the courts as proportionate …” (Terrorism Prevention and Investigation Measures in 2013, March 2014, 6.23.)

The IR suggested that the reintroduction of relocation might be accompanied by much greater freedom for a person to travel around the country (albeit not back to his place of residence).

Many people will take the view that a relocation power simply cannot be justified, especially when accompanied by other intrusive obligations, given the low standard of proof (reasonable belief) and the fact that TPIM Measures are supported by secret evidence.

But on the premise that such powers can in principle be justified, they must, at a bare minimum, be supported by clear and compelling justification. We cannot fully analyse the arguments for and against here, but the following remarks can be made.

The first point to note is that the IR has made a range of recommendations and there is a danger in cherry-picking those that one agrees with or which suit the political climate without accepting others that would proved a counter-balance—the IR’s recommended adoption of the balance of probabilities threshold is perhaps particularly important in this respect.

The nub of the justification for relocation is really the potential for reducing the risk of absconding from TPIMs and the associated reduction of the surveillance budget (the IR has stated that relocation saved the Government tens of millions in surveillance costs.)

In terms of the surveillance budget, it needs to be borne in mind that the IR’s proposal of a form of ‘relocation lite’ which would not confine relocated TPIM subjects to a small geographical area may not generate the same savings to the surveillance budget as were facilitated by the control order regime where relocated persons were so confined. We cannot know, but it seems likely that the relocation lite proposal would still require substantial amounts of surveillance (the suggestion of exclusion zones is a fortiori).

Absconding is a problem. But it seems to be associated in the media with TPIMs when in fact 7 of the 9 absconds were under the control order regime and the two absconds under that TPIM regime (Ibrahim Magag in December 2012 and Mohamed Mohamed in November 2013) were the first absconds since 2007. There is also a major difference between TPIMs and control orders relevant to the risk of abscond, which is that TPIMs come to a natural end after two years, thus providing a much greater incentive for individuals not to abscond than existed under the control order regime under which restrictions were imposed indefinitely.

The IR points to the fact that absconding did not occur under the control order regime after relocation was introduced as evidence of its efficacy at reducing the risk of absconding. Of course, relocation will, logically, reduce the risk of absconding to some extent by cutting people off from friends and associates. But its impact under the control order regime was known to Parliament when it prohibited relocation in 2011. Furthermore, the fact that most TPIM subjects have not absconded—and, as explained above, have a greater incentive not to do so than under the control order regime—should not be lost sight of. If looking at the bald statistics alone the question they pose is, could the relocation of all 10 persons who have been subject to TPIMs have been justified to attempt to prevent two absconds? Or to put this another way, can reallocation be justified to reduce a 1 in 5 chance of absconding further? This is not, however, an argument that can be carried by reference to the statistics—apart form anything else the numbers are just too small.

It is also worth emphasising the fairly obvious point that the fact that a measure is more effective does not mean it is justified. Detention in Belmarsh would, for instance, undoubtedly prevent people absconding (as well as resulting in a massive saving to the surveillance budget) but thankfully nobody suggests that detention should be reintroduced.

In a report published in January 2014, the Joint Committee of Human Rights was clear in its view that relocation could not be justified, whilst accepting its contribution to reducing the risk of absconding. It stated: We remain of the view that a power to relocate an individual away from their community and their family by way of a civil order, entirely outside the criminal justice system, is too intrusive and potentially damaging to family life to be justifiable…” (10th Report 2013-14, Post Legislative Scrutiny: TPIM Act para. 55.

Finally, the issue of providing justification also should not, I suggest, be avoided by pointing to the approach of the courts in upholding a number of relocations under the control order regime. The courts are working within a legal regime in which their role and function is restricted. In rejecting appeals from relocation orders, they should not be thought to be endorsing such powers as they are not considering whether a regime including relocation is preferable to a regime of increased surveillance. The regime is taken as a given and the courts ask whether the measure is proportionate within that regime. If, for example, preventing a person from travelling abroad is endorsed as a legitimate aim, and there is evidence that relocation will make it more difficult for the person to travel, the courts are generally reluctant to say that the obligation goes too far, given that Parliament has endorsed the power as available for use for such purposes.

Connected to this is fact that the role of the courts in judging whether a measure is disproportionate remains secondary: they do not say whether a measure should be imposed but whether it is disproportionate to the objective. In AR, for example, Mitting J stated that he favoured a reduction in the individual’s curfew, but the refusal of a reduction could not be said to be disproportionate: “the decision”, he said “is not mine” [2009] EWCH 1376 at 4. The decision that Parliament will be asked to make if the suggestion of reintroducing relocation is carried-through, however, very much its decision and it should not avoid it by pointing to the approach of the courts.

Conclusion

The Government’s announcement of more powers to combat the national security threat posed by ISIS touches upon some fundamental constitutional issues. And it is a mixed bag. On the one hand, it includes suggestions such as preventing British citizens entering the UK and reintroducing relocation powers, which are very troubling; on the other hand it provides an opportunity put other powers, in principle justifiable, such as the withdrawal of passports and no-fly lists, on a more appropriate legal basis.

 

Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

Suggested citation:  T. Hickman, ‘ISIS, passports and Magna Carta: New national security powers raise complex issues’ U.K. Const. L. Blog (9th October 2014) (available at http://ukconstitutionallaw.org/).

 

 

 

 

 

 

 

 

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Alison Young: HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998

young_alison-l2It seems that a day cannot go by without another mention by the Conservative party of their desire to repeal the Human Rights Act 1998, withdraw from the European Convention of Human Rights, or find a way in which the decisions of the European Court of Human Rights can be ‘advisory’ as opposed to ‘legally binding’. So much so, that it hardly seems newsworthy to report that the Justice Secretary, Christopher Grayling MP, published an 8-page strategy report setting out both why the Conservative Party felt there was a need for change and the proposed replacement for the status quo. However, what does attract attention is the reaction of the former Attorney General, Dominic Grieve MP, that the strategy document was based on ‘a number of howlers’. In agreement with Stephen Tierney, who concluded that the real winner in the Scottish Referendum was democracy, this blog post aims to further democratic participation and debate. It will do so by investigating the strategy report’s argument for the need for change. After all, if the facts on which a policy is based are ‘howlers’, we should at least question whether change is needed, and, if not, whether it may nevertheless remain desirable if unnecessary.

The strategy report begins by focusing on the flaws of the European Court of Human Rights accusing it of ‘mission creep’. It provides four examples to back its claim. First, the report points to problems arising from the European Court of Human Rights’ judgments that a complete ban on prisoner voting breaches Article 3 of the First Protocol. The report claims that it was never intended that this provision of the Convention would grant individual rights. Rather, it is designed to guarantee free and fair elections. Issues relating to the franchise in such elections are deliberately left out of the text. Second, the strategy report lists the decision of the European Court of Human Rights in 2007 which concluded that article 8 included the rights of prisoners to go through artificial insemination with their partners. Third, decisions of the European Court of Human Rights in relation to article 8 are criticised again, this time because foreign nationals who commit serious crimes in the UK can plead their right to family life in order to remain in the UK following their release from prison as opposed to being deported. Fourth, the European Court of Human Rights has banned life sentences, concluding that they are contrary to Article 3 of the Convention.

Before assessing whether these illustrations really are examples of mission creep, we need first to establish if they are true, or howlers. The first howler is the classic error of elevating the need for regulation into a ban. This is exemplified by the strategy report’s discussion of life sentences. In Vinter and Others v United Kingdom the European Court of Human Rights did conclude that life sentences could breach Article 3 of the European Convention. The important word here is ‘could’. The Court does state that ‘Article 3 must be interpreted as requiring reducibility’ of a life sentence. [paragraph 119]. But it is important to realise that by ‘reducibility’ the Court did not mean that life sentences were banned. Rather, the ‘reducibility’ of the sentence required is ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence as to mean that continued detention can no longer be justified on legitimate penological grounds.’ [paragraph 119]. The Court is also careful to point out that ‘it is not its task to prescribe the form (executive or judicial) which that review should take’. [paragraph 120], save to mention consensus found in comparative and international law of support for a review ‘no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.’ [paragraph 120]. As the Government itself acknowledges, Vinter v UK does not mean that life sentences are banned or that those serving life terms must be released. Rather, what is banned is a life sentence without a review after 25 years of that sentence. If there are sound penological grounds for continued detention, the prisoner remains in detention.

A second howler is found in the strategy document’s third example – the deportation of foreign criminals. This howler is more subtle. The criticism is that foreign nationals who commit serious crimes are able to remain in the UK. The strategy report sees this as problematic as ‘[t]hese judgments have apparently overlooked the very clear qualifications in the Convention relevant to the legitimate exercise of such rights.’ The document suggests that the European Court of Human Rights fails to do its job seriously, elevating qualified rights into absolute rights; exchanging “you may have a right to remain in the UK as you have a family here and the protection of your right to family life outweighs the interests of justice and the potential harm to the rights of others” for “you can remain here indefinitely as you have a family”. However, as the subtle use of ‘apparently’ makes clear, the real accusation of the strategy report is that it disagrees with the way in which the Court balances rights. The authors of the strategy report would have deported more convicted criminals. It is a subtle howler because it is not technically incorrect. But it is a howler nonetheless, as the language elevates a disagreement over issues where it is reasonable to disagree into a conclusive criticism. It is not that the European Court of Human Rights overlooks the interests of justice and the need to protect the rights of others. It is more that the Court perhaps places less emphasis on these interests and more on the right to family life than the authors of the strategy report would have done, had they been deciding the cases. This is not surprising. These are complicated issues on which it can be reasonable to disagree. That is one of the reasons why both courts and legislatures play a role in these decisions and why the European Court of Human Rights grants a wide margin of appreciation.

Howlers apart – is this a convincing argument in favour of ‘mission creep’? The document accuses the European Court of Human Rights of mission creep as it uses the Convention as a ‘living instrument’, allowing the meaning of the document to evolve over time and, therefore, drift away from the intentions of the original authors of the document. It is true that the way in which the European Convention of Human Rights has been interpreted has changed over time. This is hardly surprising. The world does not stand still. Unsurprisingly, the authors of the European Convention on Human Rights had no opinion on whether prisoners should be allowed access to artificial insemination to enable them to start a family. Artificial insemination of humans, although it existed, was not a widespread or widely acceptable practice when the Charter was drafted. It is also highly unlikely that such specific instances of application of general human rights were matters for discussion at the drafting of the European Convention of Human Rights.

The strongest example of ‘mission creep’ found in the strategy report is the argument that Article 3 of the First Protocol was not designed to provide for any specific franchise. That is correct – in part. Article 3 of the First Protocol states; “[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The question remains whether removing the franchise from a section of the community means that the State in question has carried out a free election. Removing the vote from all members of a particular political party, or from a certain ethnic minority, for example, would be extremely unlikely to meet the criteria of a free election. Nor would the conditions of the Article be met if you were required to cast your vote in the presence of an armed member of the secret services.

The problem is not necessarily that the European Court of Human Rights uses the Convention as a living instrument. Without doing so, human rights cannot help with novel situations – such as the growing use and acceptance of artificial insemination. Maybe the real issue is whether the Court is allowing the Convention to evolve in the right way. Is it the job of the Court to push signatory States forward in developing human rights protections, or to reflect developments in human rights found in the signatory States and elsewhere? When we look at the examples given in the strategy report, the Court appears to be more likely to follow than lead. In its most recent case on prisoner voting, for example, the Court referred to laws across a range of signatory States, in addition to the law in Canada, South Africa and Australia. It was also careful to grant a wide margin of appreciation to States when determining the specific franchise. The European Court of Human Rights does not prohibit signatory States from removing the vote from prisoners. It merely prohibits blanket bans. Signatory States have the ability to determine which prisoners should be prevented from voting and why – a process that the Westminster Parliament is slowly undertaking.

‘Mission creep’ is hard to define. Determining the relevant roles of international courts of human rights, national courts and national legislatures is not an easy task. Moreover, it is something on which one can expect reasonable disagreement. But it is important to recognise that there are mechanisms that the national courts and legislatures can use to signal to the European Court of Human Rights that it has perhaps, taken its mission too far. In Horncastle, for example, the UK Supreme Court did not follow a decision of the European Court of Human Rights, Al Khawaja, relating to whether allowing convictions based on hearsay evidence breached article 6. The decision of the European Court of Human Rights was on appeal to the Grand Chamber at the time and the Supreme Court was concerned that the European Court of Human Rights had not fully taken account of other procedural protections in the common law. In the Grand Chamber hearing in Al Khawaja, the UK Government was able to intervene and the European Court of Human Rights took account of the reasoning of the UK Supreme Court in Horncastle. In doing so, it modified its earlier conclusions, replacing a ban on convictions based on hearsay evidence for a more sophisticated position, recognising when hearsay evidence could be relied upon whilst still protecting the procedural rights of the accused. (See commentary here.) Similarly, in Animal Defenders International v UK, the European Court of Human Rights took account of a decision of the House of Lords and of reports of the Joint Committee on Human Rights. (See commentary here.) As a signatory State to the European Convention, it is also open to the United Kingdom to raise its concerns as to ‘mission creep’ in meetings of the Council of Europe.

Having accused the European Court of Human Rights of ‘mission creep’, the strategy report moves on to fire three criticisms at the Human Rights Act: (i) it undermines the role of the UK courts to decide human rights issues; (ii) it undermines the sovereignty of Parliament and democratic accountability to the public; and (iii) it goes beyond the UK’s obligations under the Convention. However, when we examine the arguments and examples more closely, more howlers appear. The strategy report argues that section 2 of the Human Rights Act 1998 undermines the role of the UK courts. As is well known, section 2(1) of the Human Rights Act requires the UK courts to take judgments of the European Court of Human Rights into account. This could undermine the role of the UK courts were they to read section 2(1) as imposing a system of precedent, with national courts being unable to give a different interpretation of Convention rights than that found in decisions of the European Court of Human Rights. However, this is not an accurate account of how the UK courts interpret section 2(1). Horncastle demonstrates how the UK Supreme Court does not always follow decisions of the European Court of Human Rights. Nicklinson contains dicta demonstrating how national courts may develop Convention rights beyond the interpretation found in the European Court of Human Rights. Moreover, recently, the UK Supreme Court has been developing constitutional rights of the common law – sometimes, preferring, as in Osborn, to refer to the common law. If the strategy report is to be believed, the role of the UK courts is being undermined. However, this does not appear to be the opinion of the UK courts. And, it is the UK courts who determine what it means to take decisions of the European Court of Human Rights into account when interpreting section 2(1).

Assessing whether the Human Rights Act undermines the sovereignty of Parliament and democratic accountability is no easy task. However, the argument used to support this claim in the strategy report contains further howlers. The strategy paper is concerned about the use of section 3(1) of the Human Rights Act, which requires courts to interpret legislation in a manner compatible with Convention rights, so far as it is possible to do so. The concern is that courts take this duty too far. Two possible howlers can be found here, the second following on from the first. First, the strategy report is selective in its choice of case used to illustrate how the courts go beyond the limits of possible interpretations. The document refers to the interpretation of the Misuse of Drugs Act in R v Lambert. This is a case from 2001. The case law has moved on since then. The strategy report makes no mention of Ghaidan v Godin-Mendoza, a more recent case which is often regarded as back-tracking from the earlier, more proactive case law on section 3, including Lambert. Ghaidan v Godin-Mendoza makes it clear that courts will not read words so as to be compatible with Convention rights where to do so would undermine a fundamental feature of that legislation. Second, the strategy report assumes that the sovereignty of Parliament is undermined as interpretations are given that are contrary to the will of Parliament. In these circumstances, there is nothing in the Human Rights Act 1998 preventing the Westminster Parliament from re-enacting legislation to reverse a section 3(1) interpretation. To do so, the Westminster Parliament would have to make it clear that this was its intention, owning up politically to its desire to reverse this interpretation, explaining its reasons for doing so, and doing so in a manner that made the Westminster Parliament democratically accountable for its actions.

Further howlers are found in the third criticism of the Human Rights Act. It is true that the European Convention of Human Rights does not dictate how signatory States are to protect Convention rights. There is no requirement that the Convention be incorporated as it was by the Human Rights Act. This is to state the obvious- after all, the UK signed up to the European Convention of Human Rights long before it enacted the Human Rights Act 1998. However, the strategy report goes on to contrast the situation in the UK with that of Germany. To quote from the strategy report: ‘The German Constitutional Court, for example, ruled that if there is a conflict between the German Basic Law and the ECHR then the Basic law prevails over the Convention. The Human Rights Act provides no such protection in the UK.’ There are two subtle howlers here. First, the ruling of the German Constitutional Court recognises the way in which Germany incorporates international law. The German Basic Law states that international law has the same status as Federal law. As such, it has a lower status than Constitutional law. In the UK, international law has to be incorporated into UK law, normally by primary legislation. Primary legislation can be overridden by other primary legislation. There is no need for the UK to provide the same protection from the ECHR as is found in the German Basic Law. The Human Rights Act can be overridden by future legislation – although the provisions of such future legislation may need to be carefully worded to achieve this effect. The authors of the strategy report must realise this as that is precisely what they propose. The Human Rights Act, even if recognised as a constitutional statute, is not the UK equivalent of the German Basic law. There is not the same need for the Act to provide the same protection as the German Basic Law.

Second, care needs to be taken over the context in which the German Constitutional Court made this statement. Two further clarifications are needed here. The statement was made in the context of conflicting rights. The decision of the European Court of Human Rights questioned by the German Constitutional Court concerned the interpretation of Article 8 requiring a granting of greater visiting rights to a child’s biological father. The German Constitutional Court expressed concern that this could interfere with the human rights of a child’s adoptive family. This stands to reason. There are only so many hours in the day. The more time a child spends with her biological parents the less time can be spent with her adoptive parents. It is one thing to be concerned about following decisions of the European Court of Human Rights when they may cause conflicts with national constitutionally protected human rights. It is quite another to want to claim the ability to ignore human rights decisions because you disagree with them.

The German Constitutional Court did rule that, where there is a conflict, the German Basic law prevails. However, the court has made similar statements with regard to directly effective European Union law. But it has never applied the German Basic law over directly effective European Union law. Nor was the German Basic Law applied over the European Convention of Human Rights. Provisions were interpreted in such way as to ensure their compatibility. What is important is how similar statements of the German Constitutional Court prompted reactions from the European Court of Justice. The Court of Justice developed protections of human rights, inter alia, in the light of such statements. This, in turn, led to the conclusions of the German Constitutional Court that it would apply directly effective European Union law, so long as the European Union continued to provide an adequate protection of human rights. The statements of the German Constitutional Court are examples of constitutional dialogue between courts. In a similar manner, the court is sending the message that it could ignore the European Court of Human Rights, but that, normally, it would follow its provisions. One could argue that the UK Supreme Court in Horncastle was sending the same message. In a similar way, we could conclude that HS2 is an example of the UK Supreme Court sending the same message to the European Court of Justice.

It is not the aim of this blog post to defend the European Court of Human Rights from an accusation of ‘mission creep’. Nor is the aim to claim that the Human Rights Act 1998 is perfect and so need not be changed. It is, instead, to clarify whether the claims of the strategy report provide a sound justification for reform. It is one thing to conclusively prove that an organisation has clearly overstepped the bounds of its legal or political authority. It is another to recognise that the boundaries of that authority are unclear, but that there are mechanisms that can be used by States to raise concerns about ‘mission creep’ and to potentially correct instances where the European Court of Human Rights has overstepped the mark. It is one thing to argue that the Human Rights Act 1998 undermines national courts and fails to protect democracy and national State interests. It is another to realise that those national courts do not appear to feel or act as if they are being undermined, or to recognise that there are provisions within the Human Rights Act 1998 to correct potential erosions of sovereignty and democratic accountability. This is not to argue against reform. It is rather to argue for further clarity as to whether reform is needed and why calls for reform are being made. That way the UK electorate is in a better position to exercise its democratic choice in the next general election.

 

 

Alison Young is an Associate Professor of Law and a  Fellow of  Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998’ U.K. Const. L. Blog (7th October 2014) (available at http://ukconstitutionallaw.org).

 

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Katie Boyle and Stephen Tierney: Human Rights in Transition: The Proposed Interim Constitution for Scotland

KatiestierneyThe site has recently seen posts addressing the UK’s relationship to the European Convention of Human Rightshere and here. In this post we will seek to extend the debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (see Boyle, Tierney and McHarg) is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

In substantive terms the rights to be protected in the interim constitution of an independent Scotland are those contained in the European Convention of Human Rights (ECHR), which thereby becomes part of the Bill’s foundational constitutional framework. In this sense the arrangements mirror those of the Human Rights Act regime. But the constitutional status of these rights is potentially radically different. If the Bill is viewed through a Westminster prism as a ‘constitutional statute’ (see page 62 of the consultation paper) then the rights it contains could be subject to amendment during the period of transition to a permanent constitution if the Scottish Parliament expressly chooses to repeal or amend the Bill. However, there is some ambiguity in the Bill and broader consultation paper, since at other times it seems to be the intention of the Scottish Government that rights contained in the Bill will not be subject to parliamentary authority, but will be, in effect, entrenched. And in any case rights entrenchment is likely to be solidified following the work of the proposed Constitutional Convention process and the adoption of a new permanent written constitution. The consequence of these two processes is that the constitutionalisation of human rights – both in transition and in an envisaged permanent constitution – will require a reconceptualisation of the legislative role in Scotland and the drawing of an ever more stark contrast between the relationship of courts v legislature in Scotland on the one hand, and that between courts and Parliament in London on the other. Such a radical realignment of institutional powers should be made clear to citizens, enabling an open and inclusive debate in Scotland concerning how or indeed whether human rights should be protected from legislative will in a new Scottish constitution.

Section 26(2) of the proposed Bill provides that Scots law is of no effect in so far as it is incompatible with Convention rights. Page 56 of the consultation proposes that the Human Rights Act 1998 and Scotland Act 1998 be amended to ensure that those matters currently reserved under the Scotland Act 1998 and legislation currently exempt from an ultra vires declaration (i.e. primary legislation emanating from Westminster) should, under the Bill, be subject to the same compatibility requirements under a revised Scotland Act. This would extend the protection of those rights contained in the European Convention of Human Rights from devolved to reserved matters and create a more robust human rights framework than is currently available under the Westminster system. The courts would be able to declare legislation ultra vires the interim constitution should a breach of Convention rights be established, rendering the contravening provision or act unlawful and of no effect. This is clearly a stronger remedy than the declaration of incompatibility option available under section 4 of the Human Rights Act which does not affect the operation of a non-compatible provision and therefore defers to the doctrine of parliamentary sovereignty. In this sense the proposed Bill appears to place limitations on the competence of the newly independent Scottish Parliament, creating a framework model of constitutionalism potentially very different from the Westminster process model (for a discussion on framework v process models of constitutionalism see Feldman). This would be complemented by the existing duty to read legislation as compatible in so far as it is possible to do so under section 101 of the Scotland Act.

However, this is where it gets slightly complicated. The Bill proposes affording ECHR rights constitutional status yet at the same time it also nods towards parliamentary supremacy, suggesting at least the theoretical possibility that the ECHR protection mechanisms could be repealed if the Scottish Parliament expressly chose to do so. Furthermore, perhaps by omission, the section dealing with ECHR protection mentions that the Scottish Government and public bodies are bound to comply but does not expressly provide that the Scottish Parliament’s legislative competence is limited. This omission would be overcome by the overarching provision in section 26(2) that declares Scots law to be of no effect so far as it is incompatible and, under the continuation of laws (section 34) an amended version of section 29 of the Scotland Act could continue to apply, limiting the competence of the Scottish Parliament in relation to ECHR rights and EU law. This is clarified in the explanatory notes to the Bill,

‘The Scotland Act’s human rights ‘bite’ is sharper than that of the Human Rights Act. The renewed Scotland Act will apply the higher threshold – that only applies to Scottish Parliament legislation at present – across all legislation, whether passed at Westminster or by the Scottish Parliament.’

So, whilst the wording of the Bill is unclear on this, it can be implied that the Bill proposes to retain the current, limited, legislative competence framework of the Scotland Act and extend it to reserved matters. By way of example, this would mean that on independence day all reserved matters that are currently in ‘ECHR limbo’ (such as the blanket ban on prisoner voting rights and the Strasbourg judgment in the Hirst case) would need to be remedied, otherwise an application to a Scottish court could result in an ultra vires declaration, rendering the offending provision unconstitutional and of ‘no effect’ in Scots law. In this sense we can see a ‘rights affirmative’ approach at play in relation to those rights recognised under the ECHR.

With the ECHR as the substantive benchmark the Bill does not extend legal coverage to the broad spectrum of rights recognised in international law, such as the right to adequate housing, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to work, the right to an adequate standard of living, the right to take part in cultural life and so on (see for example the scope of rights covered in the International Convention on Economic, Social and Cultural Rights which the UK is party to but which it has not incorporated into domestic law). There is reference in the Bill to some additional rights, such as equality, children’s wellbeing, the interests of the island communities, entitlement to a healthy environment and protection of natural resources (sections 28-32). Although the Bill would codify these references under a single statute, it would appear for the most part that there is nothing in the substance of the provisions that goes any further than protections currently available under existing legislation which would continue to operate under the continuation of laws in section 34 of the Bill. For example, the provisions relating to equality do not go any further than the procedural protections available under the Equality Act 2010. The reference to children’s wellbeing confers a duty on public authorities to ‘seek to safeguard, support and promote the wellbeing of children in Scotland.’ Again, this arguably does not go any further than existing legislation such as the duties conferred on public authorities under the Children (Scotland) Act 1995. The right to a healthy environment potentially extends the scope of justiciable environmental rights in the Bill. On the other hand, the intention could be merely to codify already existing case law under Article 8 of the ECHR. The references to additional rights are therefore better considered as overarching principles rather than substantive provisions that confer additional rights. In the explanatory notes the Scottish Government explains that the intention of this approach is to assist in mainstreaming existing mechanisms. Many human rights advocates may well argue that this does not go far enough.

So, although the interim constitution Bill provides a more robust human rights protection framework than is currently available under the Westminster model, it is also quite restrictive in the wider recognition of additional rights beyond those contained in the ECHR – the ECHR predominantly focussing on civil and political, and not economic, social and cultural rights. Having said that, the proposals leave the future of human rights protection mechanisms in Scotland open for deliberation under the Constitutional Convention process. It is proposed that the interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33). And, whilst the interim constitution is a robust (wide reaching with effective remedies) but restricted (only protecting a limited number of rights) model, it does not mean that the same would apply under the terms of a permanent written constitution. The permanent constitution could well embed more wide-reaching human rights protections. In the same vein, the Constitutional Convention might recommend that existing protection mechanisms be reduced or their justiciability qualified (although this might cause significant difficulties if these were deemed to be at odds with Scotland’s obligations under the Council of Europe and European Union). This brings us back to the idea of the interim constitution as a ‘constitutional statute’. This term as understood within a ‘Westminster’ constitutional mentality would make it exempt from implied repeal but not express repeal: in this sense the Scottish Parliament could legislate expressly to amend initial rights protection mechanisms contained in the interim constitution should it so choose. But given the ambiguity in the Bill and supporting documentation to which we have alluded, such an eventuality would raise an interesting issue of legality for the legislation in question. A case might well come before the courts which would test the limits of the Scottish Parliament’s competence in relation to the interim constitution’s authority to bind this Parliament into the future, offering the prospect of a clean break with the very notion of legislative supremacy.

The Scottish Government points out that enhancing rights protection is something that it would suggest be included in the permanent written constitution. Under this proposal, it would be for the Constitutional Convention to decide whether additional protections be afforded to economic, social and cultural rights as well as civil and political rights, such as has recently been recommended by Constitutional Conventions in Ireland and New Zealand. The Bill’s proposed approach differs from the path taken in the interim constitution of South Africa which set out ‘constitutional principles’ to be embedded in the permanent constitution – including equality measures and extensive human rights protection – meaning the road map for human rights was much clearer and more prescriptive in the South African interim arrangements than that set out in the Scottish Government’s proposals. The much broader (and less prescriptive) road map is arguably no bad thing – leaving the decisions on what ought to be included in the final written constitution to the participative Constitutional Convention process.

On the other hand, much of the Scottish Government’s rhetoric around the referendum debate has been about securing a fairer and more inclusive society in an independent Scotland. There ought to be a debate about whether this could, or should, be reflected in any proposed interim or permanent constitution. There also needs to be a debate about how this commitment could be, or whether it ought to be, protected from change by successive political administrations. It is crucial that the people of Scotland should have the opportunity to consider and contribute to the potential models of constitutionalisation of such aspirations – whether they be through channels of political representation in Parliament, through general mission statements or overarching principles, or through the entrenchment of fundamental values in a framework constitution that binds the legislature, executive and the judiciary in the exercise of state power. The consultation process on the proposed Bill offers an opportunity to begin this discussion even before the referendum is held. Interested parties can now begin to contribute to the debate on the future of human rights protection in Scotland should the referendum result in a yes vote. Regardless of differing views as to whether or how human rights should be entrenched, and if so which are suitable for such constitutional protection, what is surely critical is that in the exercise of these debates the process of decision-making about constitution framing be genuinely deliberative, informed and inclusive. In this sense we would reassert that, should there be a yes vote, the Constitutional Conventionbe designed very carefully if it is to be genuinely deliberative and representative’.

In the event of a no vote the future of human rights is perhaps even less certain – the recent UK Cabinet reshuffle suggests that a move towards human rights reform is very much on the Conservative agenda with Prime Minister David Cameron promising to alter, potentially radically, the UK’s relationship to the ECHR. The Shadow Justice Secretary Sadiq Khan has also set out Labour’s plans for a less intrusive Human Rights Act, offering to limit the extent to which Strasbourg jurisprudence is treated as binding and thereby seeking to shift the balance of judicial power back towards the British courts (for a discussion on this see Elliot and Mead). In light of these proposals, the regime offered in the Scottish Government’s proposed Bill strikes a very different tone, seeking to legally enshrine European human rights provisions ever further in Scotland by transferring ECHR devolved protection mechanisms to reserved matters. If indeed the legal guarantees offered to human rights are further restricted by Westminster in the next few years then it would appear that, in the area of human rights law, an independent Scotland may well look remarkably different from the rest of the UK.

 

The research for this blog was funded by Stephen Tierney’s ESRC Senior Research Fellowship under the ESRC Future of the UK and Scotland programme.

Professor Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the The Scottish Independence Referendum: A Democratic Audit’ research project.

Dr Katie Boyle is a constitutional lawyer and Economic and Social Research Council Fellow at the University of Edinburgh working on the ESRC funded research project ‘The Scottish Independence Referendum: A Democratic Audit’.

(Suggested citation: S. Tierney and K. Boyle, ‘Human Rights in Transition: The Proposed Interim Constitution for Scotland’ U.K. Const. L. Blog (1st August 2014) (available at http://ukconstitutionallaw.org/)).

 

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David Harris, Michael O’Boyle, Ed Bates and Carla Buckley: UK withdrawal from the Convention? A broader view.

ECHRIn the following blog the authors of the third edition of a leading text on the Law of the ECHR (Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights, David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, OUP, 2014) look back to the circumstances surrounding the publication of the first edition, in 1995, as a basis for reflection for today, with talk of the UK’s withdrawal from the Convention in the air. A significant part of what follows draws on the Preface to the third edition of the authors’ book, the intention being to bring the comments made there to a broader audience than the book itself would have reached. The post that follows is written in the authors’ personal capacity.

Back in 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick noted that the growth of support for a bill of rights in the UK created the possibility that the provisions of the Convention could be directly applicable in UK courts. It was also noted that ‘if this were to come about, the law of the Convention would be thrust to the fore of university legal curricula and would achieve an immediacy and relevance that would dynamise, if not revolutionize, the United Kingdom’s constitutional system’.

The Human Rights Act, and dialogue between Strasbourg and national judges

All of this has come true since the entry into force of the Human Rights Act 1998, the judicial interpretation of which has given rise to a home grown corpus of human rights law developed first by the House of Lords and, subsequently, the Supreme Court. Both of these courts have based themselves on the case law of the European Court of Human Rights and have not been fearful of pointing to inconsistencies and lack of clarity in Strasbourg law when this was called for. Strasbourg, for its part, has welcomed this new form of ‘dialogue’ inter alia with the Supreme Court and looks with admiration at the manner in which Convention principles have been applied and interpreted in an impressive body of national case law.

The relationship has run into episodic difficulties in cases like Al-Khawaja and Tahery v UK and Taxquet v Belgium (where the UK was an intervener), when, with the opportunity to reconsider the chamber judgment, the Court’s Grand Chamber listened carefully to the arguments of the UK, and adjusted its case law to take into account the specificities of the UK legal system, as pointed out by the Supreme Court, and in keeping with the principle of subsidiarity. As has been noted by many commentators, there has developed over the years a healthy cross fertilisation between the two courts and their respective judgments are eagerly and expertly parsed and dissected by each other. The same can be said for the Court’s relationship with the superior courts of other countries—Germany and France being prime examples.

The importance of this form of judicial dialogue for the orderly development of the law cannot be overstated. But it has also given rise to a realization that while the Strasbourg Court may not be able, as a judicial institution, to defend itself against the buffetings and criticisms it regularly receives from political figures, as in the UK, it can intensify its relationships with the national superior courts through the medium of ‘dialogue’ as a more appropriate and more adapted response to such criticisms. For it must not be forgotten that the essence of the notion of subsidiarity resides in the daily application by the national courts of Convention law.

More possibilities for dialogue with Strasbourg in the ‘age of subsidiarity’?

Opportunities for dialogue will be enhanced when Protocol 16 enters into force, for those States which opt to ratify it. This provides for the possibility of a national superior court to request an advisory opinion from the Court on issues relating to the interpretation of the Convention. It has been dubbed the ‘Dialogue Protocol’ because it offers the prospect of another form of adjudication in Strasbourg, distinct from individual and inter-state complaints, involving the superior courts as willing partners in the elucidation and development of the case law rather than as the potentially irritated subjects of violation verdicts.

In the meantime, and (arguably) against the background of the reform process initiated at Interlaken, including the valuable contribution made by the UK in the context of the Brighton Declaration, there are very strong signs that the Court has met the States’ request to ‘give great prominence’ to ‘principles such as subsidiarity and the margin of appreciation’. In that connection reference may be made to a recent lecture entitled Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, in which the Icelandic judge in Strasbourg, Robert Spano, responded to criticism levelled at the Court by some former members of the senior judiciary in the UK to the effect that it too easily overrides the views of national decision-makers. Adopting a careful analysis of recent case law, he argues convincingly that Strasbourg has been refining its approach to subsidiarity and the margin of appreciation, ‘adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights’. Judge Spano has suggested that the next phase in the Convention’s life might come to be known as the ‘age of subsidiarity’.

The principle of subsidiarity has always been a fundamental one in the Strasbourg jurisprudence. However, the prospect that the Strasbourg system is indeed embarking on an ‘age of subsidiarity’ should be a vital consideration informing the debate with respect to its role and relationship with the UK. This point is of major significance if the time comes when the future of the Human Rights Act is reconsidered – for the Act facilitates subsidiarity as well as a Strasbourg-UK judicial dialogue – and is thus at the heart of the issue of the UK’s membership of the Convention itself.

‘Rights Brought Home’ and the Convention under attack in the UK

In 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick observed that many of the issues examined in Strasbourg touch on highly sensitive subjects such as prisons, immigration and the administration of justice, and that political figures and media commentators in the UK frequently complain, in ‘strident tones of indignation, of interference in the domestic affairs of the state by uninformed and ill-qualified foreign jurists’. So it has not only been since the passage of the Human Rights Act that the influence of and jurisdiction of the Strasbourg Court has become contentious in the UK.

The politics of the day in the mid- to late-1990s were different, however, as is evident from the Labour Government’s White Paper, Rights Brought Home: The Human Rights Bill. Looking back today it is interesting to note that reference was made to the scheme of supervision provided by the Strasbourg Court as one that was ‘now well tried and tested’ it being established that Convention ‘rights and freedoms’ were ‘ones with which the people of this country [were] plainly comfortable’. Those rights therefore ‘afford[ed] an excellent basis for the Human Rights Bill’ (para 1.3).

Given the concerns recently expressed in the UK with respect to the Convention as a ‘living instrument’ the speech delivered by Jack Straw (‘Human Rights and Personal Responsibility – New Citizenship for a New Millennium’, St Paul’s Cathedral, London (2 October 2000)) then Home Secretary, on the day that the Human Rights Act 1998 entered into force, may be looked upon with some interest. He acknowledged that the Convention was not a ‘monument to history’ but that its ‘living instrument’ character was an answer to those ‘who assert that the convention has been developed in a way not anticipated by its draftsmen’. Straw stated that he had no ‘problem with the living instrument explanation’, but saw matters in ‘a slightly different way’. The ECHR he said, was ‘relevant to the UK today – and tomorrow – because the basic values at its heart are timeless’. They were ‘about the equal worth of all, and the belief in our responsibility to create a society that advances such equal worth and dignity’.

These comments could be made with respect to the judgments against the UK in cases such as Hirst (No.2) (prisoners’ votes), Vinter (whole life sentences) and Othman (Abu Qatada ) (deportation to Jordan). Yet, on the basis of such rulings, the level of criticism in the UK against Strasbourg has developed to an intensity that could hardly have been predicted back in the 1990s. As has been widely reported the point has been reached whereby certain Government ministers have suggested that not only should the HRA be repealed, but even that UK withdrawal from the Convention system should be considered, some going so far as to challenge the Court’s legitimacy as an institution.

UK withdrawal from the ECHR?

Against this background we refer back to 1995, when the Preface to the first edition of our text had asked the rhetorical question whether the Strasbourg system had developed to the point where no European state could seriously contemplate withdrawing from the Convention. What should one make of this today?

It is a measure of the continued success of the Convention system that the question remains a valid one in 2014 for the large majority of the treaty’s 47 High Contracting Parties, indeed, possibly all other States except the UK. For it is our contention that the intensity of the UK debate about the sovereignty of Parliament and the legitimacy of the Court is not replicated in other countries. Of course, there are episodes of criticism elsewhere but, as far as the authors are aware, it would appear that the UK is somewhat isolated in terms of the depth of its apparent opposition to Strasbourg. A detailed study published just last month (J Gerards and J Fleuren ‘Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law’) looked to the reception of the ECHR in Belgium, France, Germany, the Netherlands, Sweden and the UK. It concluded that ‘[in] Belgium, France, Germany and Sweden, the overall legitimacy of the Court and its judgments is hardly subject to debate’ [at 369], even if the Court comes in for occasional criticism in respect of specific, individual judgments. A debate about the Court and its influence with respect to the Netherlands did gain some, initial momentum in 2011-2012, although ‘the critical wind subsided’ [at 256].

Would it be an exaggeration to say, then, that the depth and intensity of the debate about the Court in the UK, and which regularly gives rise to talk of denunciation, is a peculiarly British one? If so, one might ask, ‘why’?

It may also be asked whether opposition to Strasbourg in ‘the UK’ is genuinely replicated in large parts of the nation. That this is at least open to question is suggested by the comments made by two members of the Commission on a Bill of Rights (Baroness Kennedy QC and Professor Philippe Sand QC) who argued that it was ‘abundantly clear that there is no [lack of] “ownership” issue [as regards the HRA] in Northern Ireland, Wales and Scotland (or large parts of England), where the existing arrangements under the [HRA] and the European Convention on Human Rights are not merely tolerated but strongly supported’ (para 88.v).

Reform of the Court

Of course, it is not claimed that the Court is a perfect institution. Nor is it maintained that the Convention’s member States embrace everything Strasbourg does with spontaneous love and affection. Yet it was precisely to preserve the Strasbourg system and its effectiveness for future generations that there has been a determination on the part of the Contracting Parties collectively to reform the system, and to overcome the challenges resulting from the overloading of the Court that were starting to become apparent as far back as the 1990s.

The reform conferences held in Interlaken, Izmir and Brighton revealed a strong political will to put the European system on a more solid footing and to give it the tools to deal more effectively with its worrying backlog of cases without seeking, at the same time, to clip the Court’s wings or to weaken the level of protection it provides. Overall there is a clear political attachment to the ECHR amongst Council of Europe States and an endorsement of the Court’s contribution to the development of human rights law and democratic standards. The reform agenda has placed the focus on the issues inter alia of delay in the examination of applications, the margin of appreciation and the notion of subsidiarity (as discussed above), interim measures, the election of judges and the vexed problem of the enforcement of the Court’s judgments (where serious compliance problems have arisen since the first edition of the book).

From the perspective of workload and the backlog of cases, Protocol 14 has now entered into force. The reforms that it introduces, together with internal reforms such as the provisions for pilot judgments and the prioritisation of important cases, have started to ease the Court’s workload. At the end of June 2014 the number of pending cases stood at 84,850 —a considerable reduction from a figure in excess of 160,000 of some two years before.

In this regard a new mood of optimism may be emerging at Strasbourg, and one aspect of the reform debate may be coming to the fore. Noting that the recent phase of reform was commenced at Interlaken under the notion of a ‘shared responsibility’ for the Convention between Strasbourg and the member States, the President of the Court has recently stated that it is living ‘up to its responsibility to achieve greater efficiency, improve its performance, to allocate its resources more effectively and to concentrate increasingly upon priority cases, without abandoning any other cases’. For the reform process to succeed he has called for ‘improvements at Strasbourg’ to be ‘reflected by improvements at the national level, through better observance of the Convention and the existence of effective domestic remedies in case of breach’. As he puts it, ‘[e]ach State must live up to its responsibility’ and ‘the Committee of Ministers must act more effectively in supervising the execution of judgments – the joint and several responsibility of States under the Convention, as it were’.

The responsibility weighing on the UK today

In this last regard the weight of responsibility bearing on the UK during what remains a difficult time in the Convention’s life must be brought into real focus. What is at stake for the Convention system and Europe overall as a result of the hostility directed toward Strasbourg by the action of a State held in such high regard as the UK cannot be underestimated. ‘Europe overall’ – for one only has to visit the Court’s web site to appreciate the broader importance of the Court given the nature of some of the disputes it has been grappling with recently – an inter-state case brought by Georgia against Russia concerning a collective expulsion of Georgian nationals, the resolution of a long-standing dispute between a variety of Balkan states concerning foreign currency savings in the banks of the former Republic of Yugoslavia, the detention of accused persons in cages during their trial, the hospital treatment of an orphan Aids victim etc.

It is difficult to imagine that one of the leading founders of the system could turn its back on the Convention without inflicting serious damage on the entire edifice by inspiring other States, beset by more fundamental problems of human rights, to follow suit. Some of those States may be from central and eastern Europe, who were encouraged to join the Convention in the 1990s at a critical time in their history, viewing full membership of the Strasbourg system as a necessary component of the legitimacy credentials associated with a democratic, European State. The Secretary General of the Council of Europe has argued before the Parliamentary Joint Committee examining the prisoner voting issue (para 109) that the UK’s withdrawal from the Convention would imperil not just the Convention but the 47 member State Council of Europe as a whole.

Similar comments apply to the potential confrontation that lies ahead with respect to the prisoner voting issue. Former President Sir Nicolas Bratza has underlined how the position adopted by the UK is likely to have consequences for those member States whose human rights records need significant improvement. In a recent lecture he explained that he was ‘convinced… not only of the fragile nature of the hold on democracy and the rule of law which there exists’ in some of the newer member States, ‘but [also] of the vital importance of the wholehearted support for the Convention system in preserving those ideals’. The UK’s failure to implement the judgment in Hirst has had, he explains, a ‘corrosive effect in Russia and Ukraine’, demonstrating that ‘compliance with the Convention obligations by the established democracies does matter’. Fearing further ‘erosion of the hard-won Convention standards in many parts of the Continent’, Bratza maintains that ‘the damage done by the withdrawal of support for the system by one of its key players would be simply incalculable’. He concludes:

‘That system may indeed be imperfect. But it is the only one that we have. What is needed is not to turn one’s back on that system but to work within it, to make it more effective and, in doing so, ensure that, 60 years after it came into effect, the Convention becomes not a dead letter but the vital and living instrument it was always supposed to be’. [N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human Rights”, (2014) EHRLR 116 at 128 – based on the text of the Miriam Rothschild and John Foster Human Rights Lecture (9 November 2013)

We conclude with the following observations. While the issue of UK membership has come to the fore in UK politics in recent years in ways which could hardly have been foreseen in 1995, it cannot be predicted with any certainty what the outcome will be, either in the short or long term. But we respectfully submit that the particular constitutional difficulties encountered by the UK in recent years are straight-forwardly outweighed by the advantages of being a party to the Convention, and the important role played by the ECHR in developing human rights standards throughout Europe and beyond as part of a collective guarantee of human rights—a role that is intimately bound up with peace and security in the region as recognized in the Convention’s Preamble. That point applied back in the late 1990s when the British contribution to the Convention was a cause for celebration under the banner ‘rights brought home’. But it applies today, and with even greater force, given the reform phase that the Convention system is going through, and the strong evidence that it is indeed proving to be effective, including with respect to some of the criticism that has been levelled against the Court in the UK as regards the principle of subsidiarity and Strasbourg’s relationship with national decision-makers. To put in jeopardy what has been patiently built up over more than 60 years would be a disservice to Europe, the rule of law and to the peaceful settlement of disputes.

D Harris, M O’Boyle, E Bates and C Buckley.

 

 

(Suggested citation: D. Harris, M. O’Boyle, E. Bates and C. Buckley, ‘UK withdrawal from the Convention? A broader view.’ U. K. Const. L. Blog (24th July 2014)  (available at: http://ukconstitutionallaw.org/)

 

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