Tag Archives: Abu Qatada

Conor Gearty: The Important Inconvenience of the Rule of Law

conorOmar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary.  But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments.  No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds.  The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti.  They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known.  It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial.  The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out.  Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil.   A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture.  That principle is accepted by the Secretary of State and is not in doubt.  That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read.  This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces.  SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’  (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law.  It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive.  It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote.   In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out.  This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike).   But things have changed.  The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear.  And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person.  That is why this case has attracted so much media attention.  It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue.   But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country.  The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal.  It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence.  If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates.  Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights  the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

 Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.


Filed under Human rights, Judiciary

Tom Hickman: The Return of Abu Qatada (to the streets of London)

The Abu Qatada saga is proving to be a very expensive and very embarrassing headache for the British Government. Following his narrow victory in Strasbourg in January, in which he succeeded only under Article 6, many assumed that the Government would secure the necessary concessions from the Jordanian Government that would enable him to be returned. Instead, yesterday he was back on the streets of London rather than the streets of Amman, on bail, after SIAC ruled on Monday that any return to Jordan would still violate Article 6.

Abu Qatada’s victory has left the Home Secretary—who rashly stated in April that Abu Qatada would soon be on a plane back to Jordan—with egg on her face. The Government has said it will appeal SIAC’s ruling and the Prime Minister has lamented that he believed his Government had obtained the “right assurances” from the Jordanian Government.

Apart from the cost and the embarrassment, the saga is of great importance in constitutional terms because it poses one of the most significant threats to the UK’s human rights legislation, prompting calls for scrapping the Human Rights Act and re-defining our relationship with the Strasbourg Court.

Although such calls have been noisily repeated since Monday, SIAC did not decide any issue of principle, nor indeed did the case turn on assurances given by the Jordanian Government (no matter what the Government says).

The point at issue was very narrow. There was no dispute as to the legal test to be applied: it was agreed that the Commission should ask itself whether there is a real risk that evidence derived from torture would be used upon retrial of Abu Qatada in Jordan (It will be recalled that Abu Qatada was convicted in his absence of involvement in a series of explosions in 1998 and a foiled conspiracy in 2000 both against Western and Israeli targets in Jordan). There was no dispute that there would be a retrial in Jordan.  There was no dispute that there was a real risk that the statements made by two individuals who had been co-defendants in the proceedings had been given under torture. The question purely and simply boiled down to whether there was a real risk that those statements would be admitted in the retrial.

Thus, one of the most important and high profile human rights cases turned entirely on one of the most arcane issues of recent years: a question of Jordanian criminal procedure on the admissibility of evidence of co-defendants in the Jordanian State Security Court.

Questions of foreign law are becoming increasingly prevalent in public law cases. Foreign law issues have in the past mainly been confined to private law disputes, where contract or tort actions are pursued in the UK courts but where foreign law applies. UK courts and tribunals are perfectly comfortable examining foreign law and there are very well established ways of doing it.

SIAC considered expert evidence from two Jordanian lawyers. The UK Government relied upon a lawyer who used to practice in the State Security Court. Abu Qatada’s legal team relied upon expert evidence from the most senior serving member of the State Security Court. The court accepted the evidence of the latter.

There were two material points. On point one, SIAC held that the two former co-defendants could not give fresh evidence under oath in the State Security Court but that their previous statements to the Jordanain prosecutor could be adduced under the Article 148 of the Jordanian Code of Criminal Procedure in the retrial (“CCP”) (These are the statements which it is said were made under torture.)

On the second point, SIAC held that the prevailing approach of the State Security Court to exclusion of evidence which is claimed to be the product of torture is to require individuals to prove it. An amendment to the Constitution in 2011 prohibiting reliance on evidence obtained by torture had not altered this approach (it would, SIAC held, probably require a decision of the Court of Cassation for the approach to change). There was thus at least a real risk that the statements would be admitted because the passage of time meant the burden of proof would be “difficult to discharge” and allegations of torture had previously been rejected, despite significant evidence to the contrary.

On this basis SIAC ruled against the Home Secretary, and then released Abu Qatada on bail given the absence of any reasonable prospect of imminent removal.

Questions are being asked. The most immediate is: can the Government appeal? The answer is: with great difficulty. In English law questions of foreign law are treated as questions of fact. Appeal from SIAC lies only on questions of law. Not only was SIAC rigorous in its approach to the foreign law issue, the Government can hardly have been confident about its expert evidence. As SIAC recorded, the arguments advanced by the Government’s expert had not been included in his evidence to the Strasbourg Court and the opinions of his on which the Government relied had been “formed relatively recently”, i.e. conveniently since Strasbourg’s ruling. The Government’s expert also acknowledged that other defence lawyers that he had consulted did not share his views, and they were untested and not representative of past practice. By contrast Abu Qatada’s expert, apart from being better qualified and well regarded by the British Government, had consistently propounded his views as well as, remarkably, having provided “unstinting assistance” to the British Government since the Strasbourg ruling.

It should also be emphasised that the only other issue in the case was an assessment of risk based on the expert evidence, and questions of risk are also questions of fact.

In short, whilst it is not inconceivable that a question of law might be found here, the judgment provides thin gruel for the Government’s lawyers. SIAC took a conventional approach to making findings of foreign law on which the case turned.

The next question is: how can Abu Qatada be returned? The answer to this question is that it would require an amendment to the CCP to alter the burden of proof. The Government is not in a particularly strong position to press for this given that the position of Jordanian law as it stands is not significantly different from the approach contended for by the Government and accepted by the House of Lords in A (No 2) [2006] 2 AC 221, that is to say, proof of torture on balance of probabilities. The only other options appear to be an undertaking by the prosecutor not to rely on the evidence of the two former co-defendants or not to re-try Abu Qatada. Both these options would also require amendments to the CCP and may be unrealistic.

Given the limited options, the next question is: is there a problem with human rights law? There is no doubt that in this exceptional case the Government is stuck between a rock and a hard place. Some may question Strasbourg’s decision in Abu Qatada v UK that the use of evidence obtained by torture automatically constitutes a flagrant denial of justice in a foreign state irrespective of the significance of the evidence to the trial and the legal protections in the country to ensure that such evidence is excluded. Prior to Abu Qatada v UK, the Strasbourg Court’s position was that the use of such evidence “raises serious issues as to the fairness of the proceedings”. The further step taken in Abu Qatada v UK, that its use is inevitably a flagrant denial of justice, however it comes about, results in the paradox that a person has a right in this country not to be subject to a trial in a foreign state in which there is a real risk that evidence deriving from torture will be deployed; whereas a person in this country has no equivalent right in respect of a trial in this country, that is to say, it is not the law here that a hearing is automatically unfair if there is a real risk that evidence obtained by torture would be admitted. The fact that the Strasbourg jurisprudence may be moving towards recognising the latter right does little to reduce the oddity, not least because it still gives rise to the question of how ‘domestic’ and ‘foreign’ rights could be the same.

But an exploration of the pros and cons of the Strasbourg position would require a much more thorough analysis than can be given here. The Strasbourg jurisprudence is aimed at real and practical problems in respect of states in which torture is a deeply ingrained part of the system, and known to be so by the UK and other Contracting States. From SIAC’s account of the evidence against Abu Qatada in Jordan it seems doubtful that even a higher threshold would much assist the Government in his case. The confessions of the two former co-defendants would, it seems, form a central part of the case against Abu Qatada and there are very serious question marks indeed over those statements, which, nonetheless, are probably now beyond resolution one way or the other. Insofar as Abu Qatada remains at risk of a trial in which those statements are deployed as the case against him it is difficult to object to a human rights law which refuses to deport him. Objecting, nonetheless, is what many people are doing.

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

Suggested citation: T. Hickman, ‘The Return of Abu Qatada (to the streets of London)’,  UK Const. L. Blog (14th November 2012) (available at http://ukconstitutionallaw.org). 


Filed under European Union, Human rights, Judiciary

Alison L. Young: Whose Convention Rights are they anyway?

It is probably an under-statement to say that the Human Rights Act 1998 is not Teresa May’s favourite statute. The decision to grant bail to Abu Qatada, following on from the decision of the European Court of Human Rights that it would contravene his Convention rights to deport him to Jordan, has added more grist to the mill of those who see the Human Rights Act as a mechanism that  – illegitimately – subjects the UK’s democratic decision-making power to the scrutiny of European judges. Not only does the European Court of Human Rights have the audacity to require the UK to remove its blanket ban on voting rights for prisoners (in the context of the lack of a detailed, recent democratic discussion in the Westminster Parliament surrounding this ban) but also the court will not allow us to remove a radical Islamic cleric from the country in time for the London Olympics. This is not just a court telling a democratic body what to do; it’s a European Court removing the sovereignty of the British people to decide on the rights they wish to protect – or so some of the media commentary would have us believe. Regardless of where one stands as to the relative importance of human rights and democracy, these events form part of the backdrop to two recent Supreme Court, Ambrose v Harris (Procurator Fiscal, Oban)(Scotland) and Rabone v Pennine Care NHS Foundation Trust, where the issue of who gets to decide on the content of Convention rights was discussed in the context of the interpretation of section 2(1) of the 1998 Act.

Section 2(1) requires the UK courts to ‘take account’, inter alia, of decisions of the European Court of Human Rights. The interpretation of section 2(1) is found in the dictum of Lord Bingham in Ullah that ‘[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’; known as the mirror principle.  In Ambrose and Rabone, the issue arose as to whether the domestic courts must or may interpret Convention rights beyond their definition found in decisions of the European Court of Human Rights when faced with a question to which there was either no answer or no clear answer from the Strasbourg court.

In Rabone, the more recent of the two decisions, Lord Brown did not challenge, but rather subtly reinterpreted the impact of the Ullah dictum, examining both the extent of the duty of UK courts to follow decisions of the Strasbourg court and their ability to go beyond decisions of the Strasbourg court. First, although UK courts are required to ensure that they do not protect Convention rights to a lower standard than that found in decisions at Strasbourg, where the UK courts are reluctant to follow the Strasbourg court, particularly where this would require a decision to be taken against the State, domestic courts should be ready to reject the complaint, unless there is ‘an authoritative judgment of the Grand Chamber plainly decisive of the point at issue’ [112]. In other words, UK courts need not always adhere to decisions of the Strasbourg court. Where a UK court is reluctant to agree with the decision of the Strasbourg court it reach a different conclusion from that reached at Strasbourg; but the UK court must follow an authoritative decision of the Grand Chamber.

This is merely a recognition and confirmation of past practices of the House of Lords and the Supreme Court. The House of Lords has not followed clear decisions of the Strasbourg court when these decisions can be distinguished, as was the case in Animal Defenders International. It’s also the case that the UK courts need not follow a decision of the Strasbourg court that is not taken by the Grand Chamber, as occurred in the Supreme Court decision of Horncastle. However, arguably, Lord Brown provides the courts with greater powers than those already recognised by the Supreme Court. In Horncastle, the Supreme Court decided not to follow a decision of the fourth section of the Strasbourg court that was on appeal to the Grand Chamber, in part due to the concern that the decision had failed to take sufficient account of English common law. Lord Brown suggests that the UK courts need not confine themselves to not following decisions currently under appeal, or even where the nature of the appeal refers to the misunderstanding of how Convention rights apply different in common law as opposed to civil law systems. He would appear to be suggesting that the courts possess a broader discretion, being able to disregard decisions that they are merely reluctant to follow.

Second, a court may decide that a Convention right applies beyond the current range of decisions found in the Strasbourg court. UK courts may go beyond the definition of Convention rights found in decisions of the Strasbourg court where to do so would be to follow a consistent line of previous Strasbourg decisions – as was the case in In re G (Adoption: unmarried couple). However, where there is no consistent case law from Strasbourg, although it is still open to the UK courts to develop the common law to protect human rights, the domestic courts should make it clear that this is a development of the common law and not a definition of Convention rights.

Lord Kerr, in Ambrose, appears to provide a stronger criticism of the Ullah dictum. He also recognised that domestic courts should have the power to define Convention rights when there was no clear decision from Strasbourg. However, his words appear to suggest that this is not a power of the court, but a duty:

‘I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken’ [128];

‘[i]t is therefore the duty of this and every court not only to ascertain “where the jurisprudence of the Strasbourg court clearly shows that it currently stands” but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view’ [129].

For Lord Kerr, three reasons support the existence of this duty. First, as a matter of practical reality, national courts are bound to face claims of Convention rights that have not yet been resolved by the Strasbourg court. They have no choice but to resolve these issues. Second, ‘as a matter of elementary principle’ [129] the courts have the duty to decide issues when they are placed before them. If the job of the Human Rights Act 1998 is to ‘bring rights home’, then it must be the duty of the domestic courts to protect Convention rights, regardless of whether they have been determined by the Strasbourg court. Third, courts have a statutory duty to do so. To fail to decide these issues would renege on their duty, as a public authority for the purpose of section 6 of the Human Rights Act 1998, to act in a manner compatible with Convention rights.

Despite their disparate conclusions, both Lord Kerr and Lord Brown justify their position in a similar way. For Lord Brown, his interpretation of the Ullah principle promotes ‘each of two frequently expressed aims; engaging in a dialogue with Strasbourg and bringing rights home’ [114]. For Lord Kerr;

‘[i]f the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.’ [130]

Two questions arise: (i) What is a Convention right? (ii) What do we mean by dialogue between the Strasbourg and the domestic courts?

What is a Convention right?

Three possible definitions of a Convention right underpin these judicial statements: (i) a right as defined by the Strasbourg court; (ii) a right that is ‘undeniable’ given a series of decisions of the Strasbourg court, despite a clear specific decision by the court on that point and (iii) a right found in the Convention as interpreted by the UK courts. For Lord Brown, the (limited) duty of domestic courts to adhere to decisions of the Strasbourg court clearly arises for the first definition. It may also arise for the second, where, despite a lack of a clear decision of the Strasbourg court, a series of decisions makes it undeniable that the Convention right exists. However, there is no duty of the court to adhere to the third definition. The court may develop Convention rights, where this would be in line with a series of decisions of the Strasbourg court. Where this is not the case, the court may go beyond the Strasbourg-defined Convention rights through an application of the common law; but not through an extension of the definition of Convention rights. In particular, it would be wrong for the court to make a section 4 declaration of incompatibility against legislation in such cases.

Lord Kerr appears to suggest that ‘Convention rights’ refers to all three definitions. He argues that UK courts renege on their duties as courts and on their statutory obligations under the Human Rights Act if they do not decide cases involving Convention rights and define the Convention right, even if there is no decision from the Strasbourg court. This argument only succeeds if we adopt the third definition. If we accept that Convention rights are ‘rights as defined by the Strasbourg court’, or ‘rights that are undeniable in the face of a series of decisions of the Strasbourg court’ then Lord Kerr’s arguments from elementary principle and statutory authority no longer apply. Courts have a duty to apply Convention rights – but if there is no decision on the point and no clear evidence of a line of case law making the existence of the Convention right undeniable, then there is no Convention right for the court to apply. For the courts to fail to decide that there is a Convention right is not to renege on their duty under section 6. Rather, they are fulfilling their duty, ensuring that they act in line with Convention rights as defined by Strasbourg. The applicant may argue that there should be a Convention right in these circumstances. But to argue for and to establish the existence of a Convention right are two different things.

Should the term ‘Convention right’ be extended to include ‘rights under the Convention as interpreted by the UK courts’? Lord Bingham’s dictum in Ullah rests on the assertion that it is for the Strasbourg court to determine the scope of Convention rights. This may be particularly true of the issue that arose in Al-Skeini, where Lord Brown suggested that the Ullah dictum could have ended ‘no less, but certainly no more’, which examined issues of extra-territoriality. The Strasbourg court should determine the issue of the scope of application of the Convention. There is a need for the scope of the application of the European Convention of Human Rights to apply in a uniform manner to all of the members of the Council of Europe. In the same way, the Strasbourg court should have the responsibility for determining the scope of Convention rights for the purposes of ensuring the members of the Council of Europe fulfil their Treaty obligations. It is the primary job of the Strasbourg court to ensure that the Treaty is enforced. But is the same true of those rights where the Strasbourg court affords a wide margin of appreciation? Part of the justification for granting a wide margin of appreciation is the recognition that different States may reach different conclusions in these culturally sensitive areas. It is at least arguable, therefore, that it is the job of the Strasbourg court to define the minimal content of Convention rights, but that it is the task of the States who adhere to the Treaty to determine the broader scope of application of Convention rights beyond this minimal content.

This raises a second issue – if it is for the States to decide; is it the job of the courts or of the legislature? Lord Bingham regarded the Human Rights Act as making it clear that this was a task for the legislature, not for the courts. Lord Hope expresses the same conclusion in Ambrose, disagreeing with Lord Kerr who appears to regard this as the job of the court. Lord Brown does not regard the court as having a duty to decide these issues, but argues that the courts have a power to do so, where this is in line with previous cases of the Strasbourg court. Where this is not the case, the court has the power to develop the common law separately from Convention rights.

How far should courts refine the definition of Convention rights? The answer to this question depends upon the interpretation of the Human Rights Act. Did the Act ‘bring rights home’ by providing a means for individuals to ensure that the UK adhered to its international obligations under the Convention without going to Strasbourg? Or were rights brought home as the Act provided the means for the UK to develop its own domestic protection of human rights, based upon but not confined to Convention rights as defined by the Strasbourg court? The latter would suggest that the courts do have a role to play in refining the definition of Convention rights within the margin of appreciation. The former would not. Is the Human Rights Act designed to provide as strong a protection of Convention rights as possible, whilst preserving Parliamentary sovereignty, or is it an example of a ‘Commonwealth’ model of rights protections, designed to facilitate democratic dialogue? The former may suggest that Parliament alone may go beyond Convention rights as defined by Strasbourg. The latter may suggest that courts do have a role to play in refining Convention rights, defining them beyond their current scope as found in decisions of the Strasbourg court. If section 4 facilitates dialogue, courts may develop rights beyond Strasbourg decisions without undermining Parliament. It is open for Parliament to decide not to modify or alter legislation declared incompatible by the court following its more expansive definition of a Convention right. Dialogue is facilitated as the court provides its reasons for expanding the scope of Convention rights and Parliament may provide its reasons for adhering to the decisions of the Strasbourg court.

What is dialogue between the Strasbourg and the national courts?

Far too much ink has been spilled trying to define dialogue and its application to the Human Rights Act 1998. The focus of this commentary is on the nature of the dialogue between the legislature and the courts. Less attention has been paid to dialogue between courts. Inter-court dialogue has been discussed with regard to the relationship between the national courts and the Court of Justice of the European Union, particularly within the context of constitutional pluralism. The European Union is described as pluralist as both the Luxembourg courts and the national courts assert authority to determine how European Union law is recognised in national law and the relationship between EU and national law. For the Luxembourg court, directly effective European Union law is sovereign, overriding national law. For the various national courts the inter-relationship between EU law and national law is not that straight-forward! These competing assertions of the ability to determine the way in which EU law and national law inter-act has been described as leading to a silent dialogue between the courts. The Luxembourg court is weary of extending European Union law beyond the limits of toleration of the national courts as, without the national courts, it would be impossible to ensure the uniform application of EU law. The national courts are weary of the extent to which they can reject EU law given the possible legal and political consequences. Such silent dialogue, for the more pessimistic, is reminiscent of the cold war where each court co-operates through fear of the consequences of failing to do so. For the more optimistic, it facilitates the creation of shared common principles between the Court of Justice and the national courts as each strives to respect the position of the other and reach a common understanding.

Despite being a model of possible inter-court dialogue, it does not seem to be what is desired between the national courts and the Strasbourg court. Despite some media commentary to the contrary, this dialogue is not best understood in terms of a clash of sovereign rights. The Strasbourg court makes no claim to the legal supremacy of Convention rights in the domestic laws of the States adhering to the European Convention of Human Rights. Dialogue between Strasbourg and the national courts is best understood as a means of refining the definition of Convention rights. For example, Horncastle provided an opportunity for the national courts to express its concerns as to the definition of article 6 ECHR in Al-Khawaja and Tahery v United Kingdom, a decision of fourth section of the Strasbourg court under appeal to the Grand Chamber. The Grand Chamber referred, inter alia, to the Supreme Court decision of Horncastle, changing the decision of the fourth section to recognise that the admission of hear-say evidence need not always breach article 6 ECHR. This exchange is a good example of the dialogue that both Lord Kerr and Lord Brown wish to facilitate. The objections of the domestic court focused on good reasons, examining the way in which other aspects of the common law may provide a means of mitigating the effects of admitting hear-say evidence, limiting when it can be admitted and assessing whether a conviction was made on the hear-say evidence alone. The objection was also timely, as the appeal was pending before the Grand Chamber when Horncastle was decided. The national court provided a reasoned account of its criticisms that could be referred to and evaluated by the Grand Chamber.

In a similar manner, dialogue between the two courts can be facilitated when national courts take account of decisions in the Strasbourg court, recognising the way in which the court has interpreted Convention rights in the past and predicting future refinements of the definition of Convention rights. To regard it as a duty of the court to develop Convention rights beyond those that are undeniable may hinder as opposed to facilitate dialogue. It may give the impression that the national courts were more concerned with asserting their sovereign right to determine Convention rights as opposed to engaging in a constructive dialogue to further refine the definition of Convention rights and their application to novel situations. Should national courts go beyond a predictable chain of reasoning of the Court of Human Rights? To do so may be interpreted as an assertion of the domestic courts to challenge the role of the Strasbourg court to define rights, yet this need not be the case where the Strasbourg court has provided a large margin of appreciation. The UK courts are not challenging the decisions of Strasbourg; rather the UK courts are refining Convention rights as defined by Strasbourg, ensuring their application to the specific background of the United Kingdom.

Should this only be done through the common law and not through a development of Convention rights? First, it may make it clearer to the Strasbourg court that the UK courts are not challenging Strasbourg’s authority to define Convention rights. However, this is not needed if the UK courts provide a clear explanation that their decision goes beyond decisions of the Strasbourg court, providing their own refinement of the Convention right within the margin of appreciation provided by Strasbourg. Second, to use the common law may be a means of ensuring that the court does not transgress its proper constitutional function. Parliament requires courts to read and give effect to legislation so as to comply with Convention rights, so far as it is possible to do so, empowering them to make a declaration of incompatibility when it is not. Surely this means that the court would be transgressing its constitutional role if it were to issue a declaration of incompatibility by providing a more extensive definition of a Convention right than that found in current decisions of the Strasbourg court? However, this conclusion relies upon the definition of Convention rights as those rights found in decisions of the Strasbourg court; or where we confine the constitutional role of the court to that of ensuring Parliament fulfils its obligations in international law, it being for Parliament and not the courts to expand upon Convention rights as defined by the Strasbourg court. If we regard the Human Rights Act as providing for a democratic dialogue model of rights-protections, then it need not follow that the court is excluded from playing a role in refining the definition of Convention rights. It would be open to the court to go beyond rights as defined in the Convention, but to do so through the issuing of a declaration of incompatibility as opposed to using section 3(1). This would provide Parliament with an opportunity to determine whether it wanted to follow the refined definition of the court, providing reasons for its conclusions. Parliament may rarely be provided with the incentive to refine a definition of a Convention right, when granted a large margin of appreciation, were the courts to merely define Convention rights as those rights defined specifically by the Strasbourg court.

Section 2(1) may seem to be of minor importance. However, its interpretation depends upon a resolution of important constitutional issues: the purpose of the Human Rights Act, the meaning of Convention rights and the relative constitutional roles of the legislature and the courts. It is hardly surprising that it has been the subject of attention in two recent Supreme Court decisions. It would be even more surprising if Ambrose and Rabone were the last words pronounced on the interpretation of this section.

Alison L. Young is a Fellow at Hertford College, Oxford.


Filed under Human rights, Judiciary