Tag Archives: European Court of Human RIghts

George Letsas: Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?

a_letsasIn a lecture delivered on the 20th of November, Lord Sumption, the United Kingdom Supreme Court judge, mounted a direct attack on the legitimacy of the European Court of Human Rights. The Strasbourg Court, he claimed, makes new law by continuously expanding the scope of the rights protected under the European Convention on Human Rights (ECHR). In doing so, Strasbourg treads on matters of policy that are not for unelected judges, let alone international judges, to decide.

Any law student who has studied constitutional law or jurisprudence will immediately recognize the age-old questions that Lord Sumption’s critique raises. Do judges make or discover law? Are drafters’ intentions relevant in interpreting legal texts? Is judicial review undemocratic? Can the meaning of fundamental rights change over time? Such questions concern fundamental political issues in any liberal democracy, issues about which reasonable people disagree. They are issues that have received extensive philosophical treatment by constitutional scholars around the world, particularly in countries, like the USA, in which judges have long exercised the power to review the compatibility of legislation with abstract constitutional rights. But this power of review is quite new for the judges in the UK most of whom have been schooled in the archaic doctrine of Parliamentary sovereignty. The power was formally introduced with the Human Rights Act 1998, which incorporated the ECHR into domestic law. Within a decade, old questions about the nature of fundamental rights and the role of judicial review came to the forefront of British law and politics.

So Lord Sumption’s questions are not new. But are there any new arguments? Lord Sumption rose to prominence by being appointed to the Supreme Court directly from the practicing bar in 2012. He was educated at Eton College and his first degree, from Oxford University, was not in law but in history. In his speech, he makes three arguments in support of his claim that Strasbourg acts illegitimately. The first is that the Strasbourg Court, by interpreting the ECHR as a living-instrument, recognizes rights which states did not intend to grant, contrary to legally binding norms of interpretation found, amongst other sources, in the Vienna Convention on the Law of Treaties. The second is that the value of certainty requires strict construction of legal texts. The third is that the Strasbourg Court decides matters of policy that should be decided by democratically elected branches of government. Now, is there any merit in these arguments?

The view that judges should not overstep the boundaries of their jurisdiction and decide matters of policy is common ground in any debate about judicial review. Neither the Strasbourg Court nor its supporters believe that its approach to interpretation should exceed the bounds of law and lead to an abuse of judicial power. They are not cynics who knowingly flout the law as part of some anti-democratic international conspiracy. Rather, the Court holds – honestly and reasonably- a particular conception of what the EHCR rights, qua legal rights, are. It is a conception of human rights, according to which the scope of ECHR provisions may evolve over time in order to account for new or previously neglected threats to individual freedom (the ‘living instrument’ approach). It is also a conception of rights with which Lord Sumption happens to disagree. But precisely because both the Strasbourg Court and its critics agree that judges must not decide matters of policy, the allegation of Lord Sumption that Strasbourg’s ‘living instrument’ approach exceeds the bounds of law needs a further argument. Without an argument, it is question-begging; it assumes what needs to be shown. So what is the argument for why the 800 million people who live in Europe today have no legal rights against new or previously neglected threats to their human rights?

Lord Sumption appeals to drafters’ intentions, the text of the Convention and the Vienna Convention on the Law of Treaties. But his opponents can equally appeal to all these in order to support their competing conception of the ECHR rights. Didn’t the drafters of the ECHR have the abstract intention to protect whatever human rights people indeed have, as opposed to the human rights that they, in 1950, believed exist? If the aim of human rights treaties is to protect what human rights people indeed have, based on the best available argument on the day, then isn’t Strasbourg’s ‘living-instrument’ approach compatible with the rules of interpretation of the Vienna Convention on the Law of Treaties which prioritizes the object and purpose of treaties?

And then there is the text. Lord Sumption finds that the expansion of the scope of the ECHR to illegitimate children, criminal sentencing, immigration, extradition, homosexuality, abortion, assisted-suicide was “not warranted by the express language of the Convention”. Now, I read again the text of article 8 ECHR and it says ‘Everyone has the right to respect for his private and family life”. It does not say that everyone has a right to respect for his private and family life except homosexuals, illegitimate children, criminals, immigrants, pregnant women or terminally ill patients. One can return the textualist argument to Lord Sumption: doesn’t ‘everyone’ mean everyone? No amount of strict textual construction, however ingenious, could block considering the new human rights claims of these vulnerable groups. To be sure, there may be other reasons why such claims should be thrown out. But solely appealing to the abstract language of a bill of rights, or to the specific (as opposed to the abstract) intentions of drafters, never made a good legal argument.

Lord Sumption does offer one argument in support of his claims that his opponents must reject. He appeals to the value of certainty, which, he rightly notes, is very important in law. His opponents cannot rely on it because the idea that the ECHR is a living instrument often comes with a degree of surprise: the Strasbourg Court may recognize as a human rights issue something that some or most states never expected. But is the legal value of certainty paramount? We think that it is paramount only in some areas of law, such as criminal law, where it is unfair to defeat the expectations of individuals about when the state will use its coercive force: nullum crimen et nulla poene sine lege certa. But no individual’s life plans are upset when the Strasbourg Court unexpectedly upholds new human rights claims, such as trafficking or prisoners’ rights. The only one who might be surprised and adversely affected by such holdings is the state which is held responsible for the human rights violation. And the value of certainty is meant to protect individuals from arbitrary interference by the state, not to protect the state from being scrutinized about its intrusion on individual rights. So the value of certainty, important as it may be, cannot carry the weight of a conclusive attack on the living instrument approach.

The above objections to Lord Sumption’s claims are not new. I, and many others, have made them in scholarly publications with a view to sharpen and improve the quality of the debate about the best understanding of the role of human rights and judicial review in a liberal democracy. Judges should of course take part in this debate. But they are required to do so by developing normative theories of the legal values in question (i.e. democracy and human rights) and by engaging, in good-faith with well-known legal and philosophical arguments made on the other side. No one is exempt from this requirement, just because she is a judge or just because she thinks that the debate is ‘political’. ‘Political’ does not mean devoid of argument.

We all hold the values of democracy and human rights dear and we all agree that judges, in promoting these values, must not usurp the functions of parliament. Lord Sumption’s attack on the Strasbourg Court was based on question-begging arguments that failed to address the substance of the issues involved. It was a piece of empty political rhetoric, which does not help to promote the kind of dialogue about democracy and human rights that a mature liberal democracy, like the United Kingdom, needs.

George Letsas is the Co-Director of the UCL Institute for Human Rights and a Reader in the Philosophy of Law and Human Rights at University College London.

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Helen Fenwick: Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?

helen1This blog does not intend to rehearse the merits of the prisoners’ voting rights saga. In principle it is hard to muster reasons providing a basis for banning prisoners from voting: other rights related to the democratic process, such as association and free expression, may necessarily be somewhat circumscribed by the fact of imprisonment (although probably less so in the internet age than previously), but that is not the case in relation to voting, and so the near-absolute ban, based as it is on the idea of ‘civic death’, has little to commend it. However, the merits of the case have been put forcefully by other writers (such as Colin Murray), by Liberty and by the Prison Reform Trust. The purpose of this blog is to note that while this issue has assumed ‘totemic importance’ in relation to national sovereignty (as the Justice Secretary Chris Grayling put it) it would be utterly misjudged to allow it to derail the whole ECHR project as far as a range of states are concerned (see eg Dominic Grieve on this point: Col 511-512). However, such derailment may be precisely what a range of actors may be hoping for, regardless of their views on the disenfranchisement of prisoners, while others may consider that diminution of the influence of the ECHR in some other states is a price Parliamentarians and some voters would be willing to pay to prevent Strasbourg’s interference in democratic determinations as to the democratic process in Britain. Contrary to those views, this blog will argue that the prisoners’ voting rights saga graphically illustrates the need for sensitive and subtle use of the concept of subsidiarity and reliance on a dialogic approach, in an increasingly nationalistic Europe. I argue that there are two ways forward which could put an end to this saga without creating an appearance of outright defiance of the ECHR, and that dialogue and subsidiarity might still have a part to play in so doing.

Subsidiarity and dialogue

The notion that Strasbourg should pay greater attention to the concept of subsidiarity and should promote dialogue with national authorities, especially the higher national courts, has recently gained greater currency. As I have noted elsewhere on this blog, a number of aspects of the Izmir, Interlaken and Brighton declarations (see here) were aimed at creating greater subsidiarity within the judicial process. At the same time, a number of judges have expressed their preference for viewing the interaction between Strasbourg and the UK courts as a dialogue within which both parties seek to find an acceptable balance between the rights of the applicants and countervailing considerations (for example, Lord Neuberger, Baroness Hale, and Sir Nicholas Bratza).

The Interlaken Declaration stated: ‘The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to … take fully into account its subsidiary role in the interpretation and application of the Convention…[and] invites the Court to… avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case law according to which it is not a fourth instance court’ (Point 9). The Brighton declaration emphasised subsidiarity and use of dialogue: ‘The Conference therefore: a) welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; (b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the preamble to the Convention’ (Point 12), as has now occurred in Protocol 15. The declaration further ‘welcomes and encourages dialogue, particularly dialogues between the Court and the highest courts of the States Parties’ (Point 12(c)). Subsidiarity is linked to a dialogic approach in the sense that if the Strasbourg Court perceives itself as providing a level of protection of rights that is subsidiary to that provided domestically, then it needs to pay close attention to national views as to the form of protection that the right should receive nationally and to their context, especially where such views demonstrably take account of key Convention principles at stake in the particular instance, in particular that of proportionality.

In developing some ideas on this subject, I am taking the prisoners’ voting rights saga as a currently highly significant example, to ask whether it represents a failure of the dialogic approach, and whether a similar stand-off might be avoided in future if both dialogue and subsidiarity receive greater emphasis at Strasbourg and domestically. Such emphasis might have been anticipated in this context, given the exceptionally qualified nature of Protocol 1 Article 3, the broad exceptions to the right accepted by the Strasbourg Court, its relativistic approach to it, as discussed below, and the lack of consensus on this matter in the various member states. I intend to consider whether the formal mechanisms introduced in June 2013 under new Protocols 15 and 16 ECHR will play much role in enhancing subsidiarity or dialogic opportunities, or whether informal mechanisms already under development are more significant, although there may be no necessary opposition between the two: formal and informal mechanisms may inter-react. By ‘informal mechanisms’ is merely meant mechanisms that may exist under the banner of the tags of ‘margin of appreciation’ or ‘the concept of subsidiarity’ but which need further delineation and  definition, relying on the Strasbourg jurisprudence.

Further, if the Court adheres to the concept of subsidiarity which is also intended to be linked to a dialogic approach, then might it be said that the decision triggering the prisoners’ saga, Hirst, could have been better explained, and thereby failed to adhere fully to the principles embedded in the concepts of subsidiarity and of dialogue?  Might it also be argued, bearing such concepts in mind, that in the light of the findings in Scoppola as to limitations on enfranchisement of prisoners deemed compatible with Protocol 1 Article 3, that there is room for an eventual very restrained response to Hirst at Westminster (possibly more restrained than that under the second option under the current draft Bill on prisoners’ voting) which the Strasbourg Court might well find persuasive even if it represented minimal adherence to the principle laid down in Scoppola. 

Emphasis on subsidiarity and on dialogic changes under new Protocols 15 and 16 ECHR

Protocol 15 provides: ‘Article 1 At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.’

Protocol 16 makes provision for advisory opinions, to be sought from the Grand Chamber which will be non-binding on the state, and which must be sought in the context of a case before a domestic court or tribunal (to adhere to the in abstracto prohibition). The state in question must designate the court/tribunal able to seek such opinions (Article 10). Presumably in the UK it would be the Supreme Court. A question might arise as to the judicial response to such opinions; obviously they would be technically non-binding (s2(1)(a) HRA),  but the Supreme Court might view itself as being in a fairly difficult position if it decided to disregard such an opinion, in finding against the applicant in a Convention case. Would the Strasbourg Court then view the Supreme Court as having refused to listen to it, meaning that as the dialogue had broken down, the Court would be less likely to be influenced by the Supreme Court decision than if no advisory opinion had been sought?  If so, reluctance to seek advisory opinions might emerge, meaning that Protocol 16 could in fact encourage anti-dialogic tendencies in the UK. That issue could be of relevance in this current saga in future if the Supreme Court eventually had to adjudicate on claims from prisoners excluded from any new redrawn legislative scheme determining which categories of prisoners could vote.

Enhancing subsidiarity and dialogue?  

O’Meara in this blog argued recently that these changes under the two new Protocols will enhance dialogue. I suggest that their effects should not be over-stated, and that it is more important to examine the factors that may impel the Court to listen to the domestic authorities. What are they?  Below, examples are drawn from the prisoners’ voting rights saga where possible on the basis that some opportunities for dialogue arose, but dialogue was not established.

Democratic legitimacy given to ECHR balancing mechanisms

In Hirst v UK (No 2) the key problem, the Grand Chamber considered, was that Parliament in passing the Representation of the People Act 2000 had given no appearance – it found – of listening to Strasbourg:

“78. The breadth of the margin of appreciation has been emphasised by the Government who argued that, where the legislature and domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote.”

As the dissenting judges in Hirst pointed out, there is a contradiction between the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system, and its categorical finding that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (para 82).  The dissenting judges noted that in Py v France (cited in Hirst at [46]) the Court stated:

 “Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another”.

The dissenting judges in Hirst argued that the Grand Chamber was adopting an “evolutive” or “dynamic” interpretation of Protocol 1 para 3. If so, they found that according to its own case law it should have founded itself on “a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved” (see Hirst, Joint Dissenting Opinion of Judges Wildhaber etc para 6). Such a consensus was hard to discern (Hirst para 33).

The Grand Chamber did not fully explain why the UK’s scheme was deemed to fall so clearly outside the state’s margin of appreciation. Was it found so to fall due to the apparent failure of Westminster to engage sufficiently with Protocol 1 para 3 during Parliamentary debate, or on the basis that no possible Parliamentary articulation of the reasons for coming to the determination that was reached could have been viewed as satisfying the provision? If so, the lack of such articulation would be irrelevant, but the Court could have given greater consideration to the ways in which the UK could have met its obligations in relation to the demands of proportionality under para 3.

Judicial pronouncements in senior domestic courts

In Hirst v UK the Grand Chamber said: “It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for Parliament and not for the national courts. The court did not, therefore, undertake any assessment of the proportionality of the measure itself” (para 80).

In other words, no domestic court pronouncement on the issue of proportionality was available, to guide the Strasbourg Court. In other contexts, a number of examples can be found in which, where such guidance was available, and where the consideration of the right in question was fully embedded in the judgment, the Court allowed itself to be guided towards a position in harmony with that taken by the national Court, even where that meant departing from its own previous judgment.

For example, in Von Hannover No 2 the Court did not depart from the decision of the German Federal Constitutional Court  in finding that a photograph non-consensually taken, and making no contribution in itself to a matter of public interest, had not created a breach of Art 8 due to its publication, a finding of doubtful compliance with its findings on the same point in Von Hannover no 1. In A v UK the Court was clearly influenced as to the width of the margin of appreciation to be conceded to the UK by the findings of the House of Lords in A and others as to the proportionality aspect of Article 15. In Austin v UK, as I have pointed out elsewhere, the Court in effect followed the House of Lords’ decision in respect of balancing societal concerns against liberty under Article 5, disregarding its own findings on a similar point in A v UK.  In Al-Khawaja, as others have pointed out (for example Baroness Hale), the Grand Chamber was guided by the Supreme Court in Horncastle in reaching the decision on the scope of Article 6, which was contrary to its decision in the Chamber on the issue.

Failure of dialogue and the future of the Strasbourg Court?

Obviously dialogue is not dependent purely on the proper operation of the margin of appreciation doctrine as an aspect of subsidiarity. But operating that doctrine properly provides more space for dialogue. By ‘properly’ is meant – consistently, as the Interlaken declaration pointed out, and on the basis of clearly enunciated principles. Such principles include acceptance that if, under the Strasbourg jurisprudence, a state has an exceptionally wide margin of appreciation on a particular matter, it should not be found to have over-stepped that margin unless the European consensus on the issue has changed (for example, as occurred in Goodwin).

It is fairly obvious that the voting rights’ saga does represent a failure of dialogue. It may be said that the Court in Scoppola did try to effect some form of compromise between the UK position and the one it had taken in Hirst. However, that process cannot be viewed as dialogic since the two positions are fundamentally incompatible – there cannot be a dialogue that merely destroys the basic principle underlying voting rights, adopted by the Court. Two bodies at loggerheads cannot engage in dialogue. That failure can be broken down into a number of stages. First the Westminster Parliament, in passing the Representation of the People Act 2000, did not debate the question of balancing prisoners’ voting rights against countervailing considerations in a way that – in the Court’s later view – comported with the provisions of Protocol 1 para 3, even though the Act was accompanied by a statement of compatibility under s19 HRA. Had Parliament started from the standpoint that there is a human rights-based case for prisoners to vote, but that exceptions had to be made, and had given consideration to express adherence to the principle of proportionality in the legislation, it is still unlikely that Hirst would have gone the other way in terms of outcome since the Court would still have found that Parliament had made too little effort to give legal effect to the principle it had discussed. Given the outcome in the 2000 Act, it would have been impossible for the Westminster Parliament to demonstrate to the Court’s satisfaction that acceptance of the principles underlying Protocol 1 para 3 was genuinely embedded in the Parliamentary process, and so the choice made by the UK would still have fallen outside its margin of appreciation. However, the Court could have ‘listened’ to Westminster in the sense that its judgment might have created more leeway for the UK in terms of future options to make change more palatable to the British public – as it in effect then did in Scoppola. Second, as discussed, the Court did not facilitate future dialogue between itself and Westminster in Hirst in the sense of failing to discuss ways in which Parliament could maintain its substantive restrictions on prisoners’ voting rights while putting in place a procedure able to give sufficient legal recognition to those rights (as Italy was later found to have succeeded in doing).

Could Parliament and the Strasbourg Court now extract themselves from this stand-off by a more subtle and sophisticated operation of the ECHR mechanisms of dialogue and subsidiarity that are to hand? Two ways forward are apparent. If in debating the draft Voting Eligibility (Prisoners) Bill  Parliament speaks in the language of para 3 – in other words, acknowledges that prisoners have a right to participate in the free expression of the opinion of the people in the choice of the legislature which may be furthered by allowing some prisoners to vote, but could also be furthered in other ways (eg contacting MPs, writing to newspapers), it could then consider which exceptions to that principle should be maintained in order to further the aims the government has stated that the current prohibition is pursuing. If Parliament was prepared to vote for the second option under the draft Bill that would create an enlargement of the category of convicted prisoners who can vote that would arguably comport with the key finding from Scoppola since the restriction would not be general, automatic and indiscriminate (as recently reiterated in Soyler v Turkey and Gladkov v Russia).

Such a restriction could be viewed as falling within the UK’s margin of appreciation as delineated in Hirst, and as emphasised due to the change to the preamble effected by Protocol 15. It would arguably not be arbitrary – not for the reasons given by Lord Sumption in the recent Supreme Court decision in Chester that a prisoner might equally miss a spell of fine weather by being in prison (para 115), but because if the restriction can be viewed as rationally connected to the aims in question, then its impact on a particular prisoner who happens to miss a general election due to his/her release one day after it has occurred, is an inevitable result of operating any restriction (including those compatible with Protocol 1 para 3), and is also a result of not instituting a more far-reaching ban, affecting the prisoner after release. A prisoner under the Italian legislation upheld in Scoppola could be disenfranchised for life if serving more than 5 years; a prisoner serving 3 years could be banned for 5 years. (There are also US precedents for barring prisoners from voting after release – for example, Kentucky and Virginia). A wider range of prisoners would be disenfranchised than in Italy but that was not the key issue in Scoppola. That option would effect a fairly minor change, bearing in mind that some convicted prisoners can vote at present. It would obviously avoid the taking of the step whereby Parliament had deliberately voted to disregard a judgment of the Strasbourg Court, which would be unprecedented in the member states. That result would however be unpalatable to many, including the majority of the British public. (A recent Yougov poll indicated that the public generally do not accept that prisoners should vote). So the question, obviously, is whether Parliament would accept it.

Secondly, if the current draft Bill was modified, and the Parliamentary vote eventually takes place in, say, 2016, a modified version of the second option under the current Bill might gain public and Parliamentary acceptance – in a less forensic atmosphere. Would voters in the UK accept a new system whereby there was a much clearer link between seriousness of offence and disenfranchisement, so that certain prisoners serving longer sentences were disenfranchised even after release, while those serving very short sentences were not disenfranchised at all? For example, prisoner enfranchisement could apply to those serving any sentence of up to six months and could be dependent on the circumstances of the offence in question. Obviously that would mean that judicial consideration of enfranchisement would occur at the point of sentencing in relation to offenders in that category, meaning that the UK had in that respect exceeded the minimum demands of Scoppola (para 99). The key point for Strasbourg is obviously that there must be a real engagement of the state’s infrastructure with this issue (not necessarily at the judicial level), even if substantively there was little widening of prisoner enfranchisement as a result. Balanced discussion of the matter in the media, taking account of the value to society of rehabilitating persons in the latter group, would aid in public education on this matter and promote a more nuanced public response, but large sections of the media appear to view the whipping up of public hatred of the Strasbourg Court, using this issue as the focal point, as of greater concern.

At the present time, Parliament has been presented with an option in the draft Bill – maintaining the current prohibition – that is incompatible with the Convention as interpreted by the Court. Whatever Parliament eventually does, the fact that the government has brought the incompatible option forward at all is telling. At the same time Strasbourg has reactivated 2,281 prisoners’ voting rights cases against the UK awaiting judgment (see Firth and 2,353 others v UK in March 2013). The compensation they could be awarded (although clearly it would vary from individual to individual) is rising steadily since post-Hirst a number of them have already missed a number of elections and they could miss the 2015 General Election. It might appear that both sides are placing pressure on each other to back down, in a reversal of a dialogic stance, although there is almost certainly no apparent route by which the Court could do so. There is no political process at the international level which could be utilised. If Parliament eventually takes the ‘incompatible’ option, but there is a full debate as to the basis for the degree of disenfranchisement, taking full account of Hirst and Scoppola, it is conceivable, in accordance with the notion of enhanced subsidiarity which appeared to underlie the Brighton declaration, that the Court might in future view that option as in fact compatible with para 3. Conceivable but highly improbable. From an anti-European standpoint that would obviously be a welcome result.

Conclusions

The conclusion of this piece is that the mechanisms for dialogue and subsidiarity are already present – the UK and the Court need to learn to operate them more effectively and sensitively – although that may be too late in relation to prisoners’ voting rights. Protocol 15 does not add much, it is suggested, to that process in formal terms, but may aid in impelling the Court to take a more cautious or nuanced approach to issues of this nature (taking a Scoppola-type of stance rather than a Hirst one), and to paying greater attention to consistency in its operation of the margin of appreciation doctrine. Parliament might more readily recognise that the UK’s margin of appreciation might be more fully triggered in respect of a particular decision only if a full balancing analysis has occurred in the Parliamentary process. Protocol 16 might be of value in allowing the Court to talk to the Supreme Court at an earlier stage in potential conflicts. It is also arguable, albeit controversially, that Protocol 16 should have made provision for advisory opinions to be sought by national legislatures (and should therefore have made an exception to the in abstracto principle). Clearly, this message is unlikely to gain much purchase amid the current anti-ECHR rhetoric of a number of senior Conservatives; the project of manipulating popular perceptions of the ECHR is unlikely to be furthered by avoiding stand-offs with Strasbourg. But there are a number of possible outcomes of the 2015 general election within which such rhetoric would be politically difficult, meaning that putting more effort into fostering a dialogic approach could be valuable.

Helen Fenwick is Professor of Law at the University of Durham.

Suggested citation: H. Fenwick, ‘Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?’   UK Const. L. Blog (26th November 2013) (available at http://ukconstitutionallaw.org)

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Roger Masterman: A Tale of Competing Supremacies

rogerIn a recent interview in The Spectator, Lord Chancellor and Secretary of State for Justice, Chris Grayling MP, was given another opportunity to recite the now characteristic Tory Siren call relating to the European Convention on Human Rights and the Strasbourg court.  In the piece, Grayling bemoans the “utterly unacceptable” and “almost unlimited” ability of the European Court of Human Rights to determine “what it thinks are human rights matters” arguing that:

“We have to curtail the role of the European Court of Human Rights in the UK, get rid of and replace Labour’s Human Rights Act.  We have to make sure that there is a proper balance of rights and responsibilities in law.”

The precise means of achieving these objectives, it seems, remain works in progress (with complete withdrawal from the Convention system still one possible outcome).  But one thing seems clear; in effecting the necessary reforms the “supremacy” of the UK Supreme Court must – Grayling claims – be restored.  Grayling is recorded as having said the following:

“I want to see our Supreme Court being supreme again.  I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg.”

Though Grayling’s hyperbole is entertaining (does anyone seriously think that we are governed from Strasbourg other than after reading occasionally inaccurate reports as to the location of the Court of Justice of the European Union? (and even then?!)), it would be glib (albeit correct) to point out that the Supreme Court has never actually been “supreme”.  The UK Supreme Court is not, and nor has it ever been, a constitutional court possessing a final and definitive authority over questions of law that is binding on the other arms of government and immune from override via the ordinary legislative process.  A Lord Chancellor who holds office by virtue of the same Act (s.2, CRA 2005) which established the jurisdiction of the Supreme Court (part III, CRA 2005) should, of course, be assumed to appreciate this (though some would argue that the same assumptions could not necessarily be made in respect of other key provisions of that Act – s.1, CRA, say).

But even were the Human Rights Act done away with and the UK’s membership of the European Convention system ended, would the UK Supreme Court be rendered “supreme”?

The UK Supreme Court is at the apex of the United Kingdom’s judicial structure with general jurisdiction as the final appellate court in matters other than those falling within the remit of the High Court of Justiciary in Edinburgh.  It is “supreme” therefore in the sense that it stands at a pinnacle of the domestic judicial hierarchy and – as argued in a recent piece in Public Law ([2013] PL 800) – it exercises a significant constitutional role displaying a number of the characteristics of explicitly constitutional courts elsewhere.  But the Supreme Court’s “supremacy” needs also to be appreciated in the light of a number of other considerations.

First among these is the (competing? complementary?) supremacy of Parliament.  While we might be able to say with confidence that a Supreme Court decision in a particular area represents a definitive reading of the requirements of the law, we can also say that Supreme Court decisions – including those dealing with questions of individuals’ rights – are susceptible to changes in primary legislation.  As Lord Bingham noted in the House of Lords in Re McFarland:

“Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside.”

In reality there is some circularity to claims of supremacy made on behalf of courts or Parliament.  Neither can realistically be asserted without qualification of some sort, but the bare fact is the effects of judicial decisions of the apex court (eg YL v Birmingham City Council) can be amended by primary legislation (eg Health and Social Care Act 2008, s.145).

While the idea of the unbounded legal power associated with Parliamentary supremacy may have lost some of its lustre, it undoubtedly remains an important conditioning factor of constitutional practice for actors across the branches of government.  For many, it remains the “bedrock” of the constitution (Bingham, at [9]).  Yet – to muddy the waters further – even if we accept the legislative supremacy of Parliament we need also to be mindful that it acts as camouflage for the legal supremacy of the House of Commons over the House of Lords and the practical precedence of government business in the House of Commons.

The contest for supremacy does not end here; the Supreme Court currently operates within the context of the jurisdictions of the European Court of Human Rights and the Court of Justice of the European Union.  It is the former that has been most clearly the subject of the Conservatives’ ire in recent times, though the latter through which the Supreme Court is most clearly subordinated to an external source of law claiming supremacy over national laws.  As is now well-appreciated – particularly in the light of the decisions such as Horncastle – the Supreme Court is not obliged to give effect to decisions of the European Court of Human Rights in quite the same way as it must apply directly-effective provisions of EU law.  The supremacy “lost” to the European Court of Human Rights (decisions of which – at risk of sounding like a broken record – need only to be “taken into account”) is of a different order to the supremacy asserted by the Court of Justice of the European Union over national authorities.  It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.  (This is not to suggest that the UK’s position within the EU is not perceived as being problematic – indeed Grayling’s Spectator interview alludes to an intended “renegotiation” of the UK’s relationship with the EU – rather that the legal competence of the Court of Justice has been less the subject of recent attack than that of the European Court of Human Rights, despite its greater coercive influence).

All things told this is a slightly long-winded way of saying three things: (i) that the so-called “supremacy” of the UK Supreme Court over questions of rights is a straw figure set up to demarcate a legal non-problem as a political battle-ground and (ii) that the establishment of a legally “supreme” UK Supreme Court would be every bit as constitutionally problematic as the apparent problem to which it is the mooted solution and (iii) that attempting to explain institutional relationships in the language of legal supremacy increasing offers little other than incoherence.

 Roger Masterman is a Professor of Law at Durham University.

 Suggested citation: R. Masterman, ‘ A Tale of Competing Supremacies’ UK Const. L. Blog (30th September 2013) (available at http://ukconstitutionallaw.org)

 

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Alison L. Young: Prisoner Voting: Human or Constitutional Right?

young_alison-l2As is well known, in Hirst v UK (No 2) the Grand Chamber of the European Court of Human Rights concluded that Section 3(1) of the Representation of the People Act 1983, which removed the franchise from prisoners, was a disproportionate restriction of the right to vote found in article 3 of the First Protocol to the European Convention on Human Rights. After two consultation papers, further judgments from the European Court of Human Rights, a declaration of incompatibility from the Scottish courts, a series of criticisms from the Committee of Ministers of the Council of Europe and the Joint Committee of Human Rights, a change of Government and a House of Commons debate, the Voting Eligibility (Prisoners) Draft Bill was proposed and is currently being scrutinised by a Joint Select Committee. To add to the mix, we are awaiting judgment on the latest discussion of the issue by the UK Supreme Court, in R (Chester) v Secretary of State for Justice and McGeogh v Lord President of the Council, heard on 10 June, not to mention the adjourned case of Firth v United Kingdom.

This post will comment on one argument made by the Rt Hon David Davis MP and the Rt Hon Jack Straw MP, both in their contributions to the House of Commons debate on prisoner voting and in the oral evidence submitted to the Joint Select Committee on the Draft Bill. Their argument does not concern the merits, or otherwise, of prisoner voting, examining instead whether the issue should be determine by the European Court of Human Rights, or by the Westminster Parliament. Their claim is not a mere assertion of the sovereignty of the Westminster Parliament over the European Court of Human Rights. Rather, they argue that there are sound constitutional reasons for the Westminster Parliament to determine whether prisoners should vote. They argue that the European Court of Human Rights has taken a creative approach, going beyond an interpretation that focuses on the intentions of the authors of the European Convention on Human Rights. In doing so, the Court has gone beyond its constitutional ambit, in particular because there is no ability for any form of democratic response to the decisions of the European Court of Human Rights. Jack Straw, in particular, draws on Lord Hoffmann’s 2009 lecture to the Judicial Studies Board. Lord Hoffmann argued that the European Court of Human Rights was not suited to take decisions as to the way in which different rights should be balanced, or the application of general broad provisions of rights to very specific situations.

There are two issues here. What is the proper constitutional ambit of the European Court of Human Rights as a ‘European’ as opposed to a ‘national’ institution and what is its constitutional ambit as a ‘court’ as opposed to a ‘legislature’? The answer to this question appears to depend upon the nature of the right in question. The argument is that the European Court is constitutionally suited to decided broad or abstract rights, but specific applications of rights are more suited to national courts. The more a specific application of a right requires a balancing of different rights, or an assessment of different rights and principles, the more the issue is suited to resolution by legislatures. The European Court of Human Rights deals with abstract, fundamental ‘human’ rights. National courts and legislatures deal with how rights are applied to specific situations, or how rights and principles are balanced. This is a form of ‘constitutional’ right – assessing what ‘constitutes’ the specific application of a right according to the legal and constitutional principles prevalent in that national community.  We need to unpack these issues to see whether they form a sound basis for dividing power between the ECtHR and national courts and legislatures.

An overly creative approach?

Has the European Court of Human Rights been overly creative when assessing whether prisoners should be allowed to vote? Difficulties emerge when we try and apply this latent distinction between ‘human’ and ‘constitutional’ rights by looking at the distinction between broad rights and their specific application. Not only is it easy for this to collapse into a mere matter of degree, but the classification of the right may depend upon your particular focus. For example, if we are examining the issue as one of ‘the right of prisoners to vote’ then the issue becomes one that is more specific constitutional right and therefore for national courts. If we are examining the ‘right to vote’ then the issue concerns a broad human right, with the exclusion of prisoner voting needing to be justified as an exception to this broad right, a matter for the European Court of Human Rights to determine. If the justification of the restriction of the right to vote for prisoners depends upon the need to balance other rights and interests then this becomes a matter for national legislatures. As all appear to be sensible accounts of determining whether it is contrary to the ECHR to disenfranchise some or all prisoners, it becomes reasonable to argue whether the issue should be determined by the ECtHR, national courts or national legislatures or a combination of all three. It is hard to regard the ECtHR, therefore, as being overly creative.

Does a different picture emerge when we focus on the extent to which a specific application of a right requires a balancing exercise, weighing up different rights or balancing rights and interests? This distinction can be just as difficult to apply in practice. Does prisoner disenfranchisement depend upon the proper interpretation of the Convention right to vote, suited to the European Court of Human Rights, or does it depend upon a delicate balance of rights and interests and hence is more suited to national legislatures? If there is any consensus that emerges from cases examining prisoner disenfranchisement, it is that the right to vote is seen as a ‘core’ or ‘fundamental’ right, but that the issue of whether prisoners should vote requires a delicate balance of the right to vote against other rights and interests. This is illustrated, for example, in paragraph 84 of Hirst v UK (2). The European Court of Human Rights made it clear that its role was limited “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”. This assessment was repeated in paragraph 85 of the Scoppolla decision.  It is an approach running through the case law on prisoner voting in Canada, Australia and South Africa, as well as in the approach of the Court of Appeal in Chester. Here the courts do not grant a ‘margin of appreciation’ to signatory States, recognising their different constitutional and social cultures, instead granting a ‘wider discretionary area of judgment’ to the legislature. Again, it is hard to conclude here that the European Court of Human Rights has exceeded its proper constitutional role when deciding cases on prisoner disenfranchisement. Prisoner disenfranchisement is a complex and contestable issue. It is reasonable to disagree both as to whether those who commit serious enough offences should not be allowed to vote and, if so, how serious the offence need be to result in disenfranchisement. Many decisions are decided in favour or against the disenfranchisement of certain prisoners by a narrow majority of judges. The only certainty that seems to emerge is that blanket bans, disenfranchising all prisoners, are a disproportionate restriction on the right to vote. This conclusion is reinforced when we look at the outcome in the Scoppolla case. Here an Italian law removed the right to vote from prisoners convicted of a specific series of offences, or those sentenced to terms of three years or more, and removed the right to vote permanently from those sentenced to life sentences or terms of five years or more, subject to a procedural right for the individual to apply for his right to vote to be returned. The court concluded that this was not contrary to Article 3 of the First Protocol. The Italian law was not a blanket ban and it was within the margin of appreciation for the Italian government to regulate prisoner voting in this manner, the ban on voting relating to the serious nature of the offences committed.  There are cases where it is much clearer that the European Court of Human Rights has taken a creative approach than the cases on prisoner disenfranchisement.

Lack of a democratic override?

Let us assume that it was clear that the European Court of Human Rights had been too creative. Jack Straw’s argument is that creative judicial interpretations are far less dangerous in legal systems where there is the opportunity for a democratic correction by the legislature if courts provide too creative an interpretation of rights. The specific example he provides is that of a democratic override in the US, where an overly creative interpretation of the US constitution by the courts can be corrected by Constitutional amendment. If this is all that is required, then it is arguable that the ECHR does provide for a democratic response in a similar manner. The ECHR is a Treaty. Its provisions can be amended by those who have signed up to the Treaty. It may also be easier in practice to modify the Treaty establishing the ECHR than it is to amend the US Constitution.

It may be that Jack Straw has provided a particularly weak example; maybe he would have been better relying on the provisions of the Human Rights Act 1998. But, even if we require more of a democratic override than its mere theoretical possibility, Treaty amendment is not the only way in which democratic input can be given. First, it is possible for the United Kingdom government to appeal decisions to the Grand Chamber of the European Court of Human Rights, as it did in Hirst (2) When presenting its argument to the Grand Chamber, reference can be made to the legislative debate. The same opportunity occurs when the UK government makes representations to the court in cases against other States. The UK government made submissions to the Grand Chamber in Scoppolla v Italy. In doing so it referred to the House of Commons debate on prisoner voting. This was also referred to by the Court in its judgment. The Grand Chamber also does not decide issues in a vacuum. It is aware of the reaction of other legislatures, as well as on-going negotiations between the Committee of Ministers of the Council of Europe and the Governments of the Signatory States.  These may be a predominantly ‘governmental’ as opposed to a ‘legislative’ responses. But the way to correct this is through domestic arrangements, ensuring more legislative engagement with and accountability over Governmental responses and interventions.

Need for democratic override?

The strongest argument in favour of a democratic override is the recognition that the European Court of Human Rights may make mistakes. If prisoner disenfranchisement can reasonably be seen as an issue about the proper scope of the human right to vote, or a specific application of this broad right to a particular constitutional background which may or may not require a balancing of complex social rights and interests, then there is no wonder that there will be disagreement as to whether the Court is being too creative. But does this correction need to be by a legislature? First, if the issue is one of the application of a human right to a specific legal or constitutional situation, then  any correction needed may be better coming from national courts than national legislatures. We can see this when we look at one of the examples Lord Hoffmann n his 2009 lecture, Al Khawaja and Tahery v UK. Lord Hoffmann criticised the judgement of the European Court of Human Rights as too creative. The judgment was also criticised, and ultimately not followed in the Supreme Court decision of Horncastle, as the decision appeared to be based on a misunderstanding of the common law. In the appeal of Al Khawaja before the Grand Chamber, the Government relied on this misunderstanding, and the Grand Chamber referred to the judgment of the Supreme Court in Horncastle. The Grand Chamber  looked specifically at the broader provisions of English law and referred to the approach of other common law jurisdictions to this issue. It concluded that there had been no breach of the Convention with regard to the reliance on hearsay evidence in the conviction of Al Khawaja, but that the Convention had been breached with regard to its specific application to Tahery.  Second, there is no guarantee that the legislature is better placed to balance social rights and interests than the courts, particularly in areas as sensitive as prisoner disenfranchisement. The recent legislation removing the franchise from prisoners in New Zealand provides an interesting example here. Legislation was enacted to impose a blanket ban on prisoner voting, despite the statement of the Attorney General to the legislature that this would be contrary to the New Zealand Bill of Rights Act 1990 and to New Zealand’s human rights obligations in international law.  The legislation was enacted by a narrow majority and it is probably uncontroversial to remark that the arguments presented in favour of the Bill were not a prime example of the merits of democratic debate as a means of protecting rights.

Constitutional or Human – does it matter?

Regardless of whether we categorise the right of prisoners to vote as a ‘human’ or a ‘constitutional’ right, its resolution is complex. We can reasonably phrase the issue as one of the limitation of a fundamental human right, or as the specific constitutional right whose determination involves the balancing of complex social, moral and political philosophies. But, maybe in doing so we are hiding a more challenging issue. Problems arise because the right may be constituted by the values formed by reasoned reflection by the judiciary as to the content of fundamental rights and an assessment of whether the reasons provided for restricting a right hold water combined with a reasoned reflection of the legislature to balancing broader social and moral principles. Or it may just constitute what people think intuitively, or how they feel about granting the right to vote to prisoners – whether that be physically sick or otherwise.   The more the joint select committee continues to focus on obtaining informed advice, and the more the courts provide detailed reasoned for their conclusions, the more the potentially creative interpretations of the European Court of Human Rights can be corrected. Perhaps more importantly, the more we can ensure that the ‘constitutional’ right of all/some/no prisoners to vote will be worthy of the name.

Alison L. Young is a Fellow of Hertford College, University of Oxford.

Suggested citation: A. L. Young, ‘Prisoner Voting: Human or Constitutional Right?’  U.K. Const. L. Blog (27th September 2013) (available at http://ukconstitutionallaw.org).

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Noreen O’Meara: Reforming the European Court of Human Rights through Dialogue? Progress on Protocols 15 and 16 ECHR

noreenMuch progress has been made following the agreement of the Brighton Declaration on reforms to the working practices of the European Court of Human Rights (ECtHR).  The Brighton Ministerial Conference in April 2012 prompted renewed reflections on the role and legitimacy of the ECtHR itself.  In the UK, the timing of the Conference coincided with highly politicised debate over Strasbourg’s prisoner-voting case law and the sanctity of subsidiarity; debate which tended to overshadow practical concerns about the ECtHR’s capacity to exercise its constitutional and adjudicatory functions.  One year on, this post provides an update on progress made pursuant to the Brighton Declaration with a particular focus on proposals to extend the Court’s advisory jurisdiction under draft Protocol 16 ECHR.

Protocol 15 ECHR: Practical Solutions?

While the docket of the ECtHR has begun to fall over the past year (having peaked at approximately 159,000 pending cases in early 2012), there is no shortage of applications.  Strategies have been adopted in recent years to alleviate the Court’s caseload under Protocol 14 ECHR and via changes to the Court’s working methods.  The increased use of the single-judge procedure, for example, and the increased competences provided to three-judge committees are changes which seek to impact on the volume of manifestly inadmissible or repetitive cases.  The corollary increase in power accorded to the Court’s Registry (which plays a vital but powerful role in filtering out apparently unmeritorious cases en masse) merits further scrutiny.  The significant delays involved in introducing reforms (Protocol 14 ECHR remained open for signature for six years before its entry into force in June 2010) are partly to blame for the slow progress in this area.  It will take more time for these changes to radically impact on the Court’s caseload, which remains unsustainable.

Many of the practical changes suggested in the Brighton Declaration were relatively unambitious.  Protocol 15 ECHR, adopted by the Committee of Ministers of the Council of Europe on 16 May 2013, comprises a collection of reforms deriving from the Brighton negotiations.  The most eye-catching of these is the reduction of the time-limit to apply to the ECtHR under Article 35(1) ECHR from six months to four.  This move was supported by the Court in its Preliminary Opinion pre-Brighton, which indicated that the Court was open to a significant reduction to the time-limit.  Protocol 15 ECHR also provides for references to subsidiarity and margin of appreciation to be added to the preamble to the Convention.  The new recital reads: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.  As noted above, debate on the principle of subsidiarity and the doctrine of the margin of appreciation was a feature in the lead-up to the Brighton Conference.  While the addition of a new recital clearly stems from the agreement at Brighton, and will provide a further point of reference for the Court, it is (in my view) hardly likely to make a meaningful substantive impact on the Court’s adjudication, in practice.

Other procedural aspects covered by Protocol 15 ECHR include an adjustment to the ‘significant disadvantage’ criterion, which was a key concern for NGOs at the Brighton Conference.  The Protocol rectifies an apparent anomaly introduced by Protocol 14 ECHR by deleting the words ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from Article 35(3)(b) ECHR.  This adjustment will widen the Court’s scope to reject applications.  Furthermore, parties will no longer be able to object to the relinquishment of jurisdiction over a case from the Chamber to the Grand Chamber under Article 30 ECHR.  This innovation is welcome as a streamlining measure – indeed, para 25(d) of the Brighton Declaration encouraged States Parties to refrain from raising objections to the relinquishment of jurisdiction pending the adoption of Protocol 15 ECHR.  Finally, in a measure which may enhance the perceived independence of judges and reduce turnover of the Court’s membership, the Protocol scraps the current compulsory retirement age (70) and introduces a requirement that candidates for judicial office must less than 65 years of age when their nominations are received by the Parliamentary Assembly.  This reform will only apply to elections taking place after the entry into force of Protocol 15 ECHR.  As ECtHR judges are elected to serve a nine-year term, this measure effectively raises the maximum retirement age to 74.  Food for thought for any states reviewing rules on retirement ages for national judges…

Draft Optional Protocol 16 ECHR: Extending the Court’s Advisory Jurisdiction

The proposal to extend the ECtHR’s limited advisory jurisdiction powers to enable highest national courts to seek advisory opinions is in the process of being agreed via Draft Protocol 16 ECHR.  Whilst this initiative was tabled at the Brighton Conference, it had been mooted and discussed in Council of Europe (CoE) circles with increasing frequency since the Wise Persons’ report in 2006.  Indeed, the roots of this initiative can be traced back decades to the adoption of Protocol 2 ECHR.  This proposal gained sufficient support to be included in the Brighton Declaration and has progressed through the drafting stages.  The resulting draft optional Protocol is currently being considered by the Committee of Ministers, which will take account of the ECtHR’s Opinion on Draft Protocol 16 (adopted by the plenary court on 6 May 2013), and the Parliamentary Assembly’s Opinion (anticipated at the end of June 2013 – draft version adopted on 27 May 2013) when deciding whether to adopt the draft Protocol.

Characterized as ‘the protocol of dialogue’ by Judge Spielmann, Draft Protocol 16 ECHR permits ‘highest national courts and tribunals’ to request non-binding advisory opinions on ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’ (Article 1(1)).  Such questions should arise in concrete cases, avoiding abstract review (Article 1(2)) – the Court’s latest Opinion emphasising the absence of any role for the ECtHR in reviewing facts or adjudicating on national proceedings (at para 8).  Highest national courts and tribunals competent to request advisory opinions should be nominated by Contracting Parties, with the surprisingly flexible gloss that such nominations may be changed ‘at any later date’ (Article 10).  The admissibility of requests and delivery of opinions would be a task undertaken exclusively by the Grand Chamber of the Court: admissibility handled by a 5-judge panel, the delivery of opinions by the Grand Chamber itself (Article 2(1)-(2)).  After disagreement on the question of whether reasons for declining to deliver advisory opinions (evident in the Court’s Reflection Paper (para 21) and on the part of the drafting group), the Protocol provides that decisions declining requests for advisory opinions should be motivated with reasons (Article 2(1)).  It would have been odd for a Protocol aimed at enhancing dialogue between courts not to require the ECtHR to provide specific reasons to requesting courts.  The Court’s Opinion (at para 9) suggests that it has now been persuaded by the benefits of this approach, in the interests of promoting ‘constructive dialogue’ (echoing Lord Neuberger’s phrase in Pinnock).  Such reasons will, the Court observes ‘normally not be extensive’.

Assuming that this proposal will be adopted (a politically unsafe assumption, but for the purposes of this post a convenient one) its impact and reach will be limited by its adoption via an Optional Protocol.  Draft Protocol 16 ECHR will enter into force after ratification by 10 Contracting Parties (Article 8(1)).  The Court has consistently supported the optional nature of the proposed procedure.  Without a potentially long wait for ratifications by states supporting this initiative, this may offer scope for interesting early opinions on aspects of the Convention and its Protocols which are of greater (substantive) interest than opinions deliverable under the current restrictive regime (Article 47 ECHR).  The early opinions sought by highest national courts pursuant to the Court’s expanded jurisdiction could prove to be a good indicator of what national courts perceive as being particularly problematic issues.  The submission of questions relating to jurisdictional issues, apparent inconsistencies in Strasbourg jurisprudence, or alleged restrictive approaches to the margin of appreciation doctrine could (hypothetically) emerge as questions which are the subject of advisory opinions, as well as more obvious questions relating to the compatibility of national law with the Convention.  Early experiences with this procedure could inspire or dissuade further Contracting Parties in ratifying the Protocol, and impact on nominated courts’ preparedness to engage with it.

There is much to be said for designing a system which actively reinforces dialogue between the ECtHR and highest national courts, facilitating sound interpretation and application of Convention rights at national level.  However, aspirations for this procedure as a ‘platform for dialogue’ which will additionally impact on the Court’s voluminous docket seem utopian.  A reduction in the Court’s docket of pending contentious cases will not materialise in the long-term unless serious consideration is given to the Grand Chamber’s capacity to handle this procedure.  There is an obvious risk that it could generate more litigation without achieving the desired knock-on effects of reducing contentious cases.  Moreover, the scope for overlap between the Court’s advisory jurisdiction and its contentious case law is real (were the delivery of an opinion to trigger, rather than prevent, applications).  Though the Court ‘endeavours to speak with one voice’ when delivering an advisory opinion (ECtHR Opinion, para 11), the scope for the delivery of separate opinions provided by Article 4(2) could contribute to uncertainty and lead to further applications. The need for expeditious delivery of advisory opinions, as accepted by the ECtHR in its Opinion (para 13), whilst at the same time avoiding delays to pending contentious cases could be a big ask. The Grand Chamber rarely delivers more than two-dozen cases per year: the last thing it needs is more.

Though the Court’s attitude towards extending advisory jurisdiction appeared somewhat muted in its Preliminary Opinion, the latest Opinion fully subscribes to the Protocol’s aims.  Political support for this kind of reform has been patchy over the years; CoE reports and proceedings have variously recorded states’ support and opposition for this proposal.  It remains to be seen whether the Committee of Ministers approves Draft Protocol 16 by consensus, or whether a more complex vote is needed.  If Protocol 16 ECHR is approved, the UK, in its traditional schizophrenic approach to this issue – supportive of reform, but sceptical of actually being involved – is not expected to be at the front of the queue to ratify.  The UK Supreme Court may be shielded from engaging with this procedure for some time yet.

A year ago I viewed the Brighton Declaration with a mix of relief and concern.  The final Declaration succeeded at neutralising the more political features of earlier draft versions, but it did so without proposing radical, efficient measures to speed up the delivery of justice.  The fundamental appeal of an initiative such as the extension of advisory jurisdiction under Protocol 16 ECHR will prove hollow if it fails to meet its objectives: promoting dialogue on one hand, whilst over-burdening the Grand Chamber and potentially lengthening the adjudicatory time for other contentious cases.  For as long as the ECHR system views the right of individual petition as something too precious to erode – balancing constitutionalist and adjudicatory roles as if on a tightrope – it seems idealistic reforms will continue to influence the kind of Court it strives to be.

[Extended analysis of draft Protocol 16 ECHR is provided in K. Dzehtsiarou and N. O’Meara ‘Advisory Jurisdiction and the European Court of Human Rights: A Magic Bullet for Dialogue and Docket-Control?’ Legal Studies (forthcoming, 2014).]

Noreen O’Meara is a Lecturer in Law at the University of Surrey

Suggested citation: N. O’Meara, ‘Reforming the European Court of Human Rights through Dialogue?  Progress on Protocols 15 and 16 ECHR’  UK Const. L. Blog (31st May 2013) (available at http://ukconstitutionallaw.org).

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Christina Eckes: One Step Closer: EU Accession to the ECHR

ChristinaThe final version of the draft accession agreement was concluded on 5 April 2013. It will allow the EU to become a contracting party to the European Convention on Human Rights (ECHR), arguably on more than equal footing with the other Contracting Parties, which are all States.

The EU’s accession to the ECHR is a long and on-going journey. Indeed, accession has been subject of political discussion since the 1970s. The early debate culminated in 1994 with the Court of Justice terminating all accession attempts under the old Treaty framework. However, the situation changed fundamentally on 1 December 2009 with the entry into force of the Lisbon Treaty. Accession has not only become possible, it has become an obligation. The conclusion of the draft accession agreement is an important step, but it is by no means the last. Next, the Court of Justice of the European Union will give its opinion on the compatibility of the accession agreement with EU law.

The EU’s Privileges Pre- and Post-Accession

Even before the EU’s accession, the ECtHR deals implicitly or explicitly with EU law more often than one would expect. To give the gist of the relevant case-law of the ECtHR: Member States retain responsibility for their acts, including those adopted within the context of EU law, but acts adopted by the EU institutions proper fall outside of the ratione personae of the Convention. For instance, as things stand at present Member States remain responsible for primary EU law as the consequences of a treaty, in the adoption of which they have been involved. It is, further, possible to bring an application against a (particular) Member State for implementing EU law, irrespective of whether that state has had any margin of discretion in implementing EU law. If the state has had no margin of discretion, a rebuttable presumption of equivalent protection applies which leads the ECtHR to exercise full judicial review only if the protection under EU law has proved in the case before it to be ‘manifestly deficient’ in the individual case (the Bosphorus presumption). The presumption of equivalent protection in Bosphorus has placed the EU for many years in a privileged position as compared to its Member States, even without being a party to the Convention. The ECtHR does not review the compliance with the Convention of EU Member States’ acts implementing EU law in the ordinary case. The accession agreement recognises the EU’s special position and in a different way codifies and institutionalises it, but it takes away the Bosphorus privilege.

A central concern in the negotiation of the draft agreement was the Court of Justice’s judicial autonomy and indeed even monopoly to interpret EU law.  The core threat of EU accession for the Court’s autonomy to interpret EU law emanates from two situations: first, the ECtHR might determine who the right respondent is in any given case; and second, the ECtHR might attribute responsibility to and apportion it between the EU and its Member States. In both events, the ECtHR would simply not be able fully to disregard the power division between the EU and its Member States – both in law and in practice. The complex and dynamic task division between the EU and its Member States could lead the ECtHR to offer an interpretation of substantive EU law binding on the Court of Justice. The EU is a compound legal order consisting of numerous international actors and the largest share of EU law is implemented or applied by national authorities. This means that it requires national support and involvement in order to become effective. As a consequence, if the ECtHR’s interpretation extends to who is responsible the potential challenge to the judicial monopoly, and ultimately the authority, of the Court of Justice is of a different quality than any potential challenge presented by the judicial authority of a national court. Furthermore, the authority of the Court of Justice depends much on the support of national courts. This becomes particularly apparent in the preliminary ruling procedure (Article 267 TFEU), under which most of the fundamental judicial decisions were taken that integrated the EU legal order. Ultimately, this discussion on the EU’s autonomy boils down to the question of how integrated and irreversibly interlocked the EU and national legal orders and judicial systems really are in the face of an external challenge, such as confirmation by a well-respected external judicial authority that the EU breaches human rights. Will such a finding of the ECtHR flare up resistance towards EU law by national courts or public opinion?

The co-respondent mechanism with the prior involvement procedure is aimed to protect the autonomy of the EU legal order and of the Court of Justice in particular. It stipulates that: ‘[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.’ The Union has further made a declaration that it ‘will request to become a co-respondent to the proceedings’ if these requirements are met. Additionally, if the Court of Justice has not previously ruled on the matter, the agreement is that the ECtHR should request the Luxembourg Court to do so before giving its own ruling. The co-respondent mechanism permits the ECtHR to refrain from determining who the correct respondent is or how responsibility should be apportioned. Indeed, the draft agreement  declares joint responsibility of the respondent and co-respondent to be the common case: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ This will for most cases unburden the Strasbourg Court from the task of assessing the distribution of competences between the EU and its Member States. However, it does not rule out the possibility that the ECtHR chooses to apportion responsibility in the individual case. Furthermore, while no High Contracting Party may be compelled to become a co-respondent, the Strasbourg Court may terminate the participation of the co-respondent. Both actions of the ECtHR imply a prior decision on how the responsibility should be apportioned or attributed. Hence, the co-respondent mechanism tries to strike a balance between not limiting the formal competences of the ECtHR but determining how these competences are usually exercised in practice. In any event, in view of the rather cautious approach of the Strasbourg Court in the past it can be expected that it will not meddle with the complex and dynamic division of powers between the EU and its Member States where this is not judged absolutely necessary.

The special position accorded to the Court of Justice should be seen both as accommodating the Court’s concern with its judicial autonomy and acknowledging the particularities of the EU legal order and the judicial power in the EU.  The classic division of tasks between the legislating EU and implementing Member State can for instance result in a situation where EU law is implicitly or explicitly challenged in Strasbourg in the context of an alleged violation through a national act of implementation before any Court at the EU level has been consulted. This also justifies involving a court at the EU level before ruling on the compliance of EU law with the Convention. It will certainly force the Court of Justice to deliver in the individual case, rather than being able to hide behind a general presumption of equivalent protection. After receiving the Court of Justice’s opinion, the Strasbourg Court will have to scrutinise and rule whether the Convention has been breached. It can only find the specific opinion either correct (offering equivalent protection; no violation) or incorrect (misinterpreting the Convention; violation). It cannot hide behind general considerations of the human rights protection in the EU legal order. The times of Bosphorus are over.

The (Un-)Likeliness of an Open Conflict

After accession, the ECtHR’s decisions will be formally binding on the Union as a matter of international law. This could in an extreme case result in a finding of non-compliance if the Court of Justice rejects an interpretation of the ECtHR of internal matters of EU law. Whatever status the Court of Justice will give rulings of the ECtHR after accession, it is difficult to see in practice how the Court of Justice could in a ‘Union of law’ follow an argument or give a ruling that openly clashes with the protection of human rights given by the ECtHR. This would be problematic both before and after accession, and irrespective of whether the EU is a party to the case. At the same time, the justification deficit would be much lower if the Court does not accept the ECtHR’s position on competence matters of internal EU law that has no substantive impact on human rights protection. We may conclude that the risk of a potential conflicting interpretation of the ECHR and the Charter would not increase through accession. With the co-respondent mechanism with the prior involvement procedure it will be lower than at present. Pre-accession it is conceivable that a national court delivers a decision based on a preliminary ruling of the Court of Justice and that this decision (after national remedies have been exhausted) is taken to the ECtHR which might decide that the country has violated the ECHR. The ECtHR’s ruling on the case could entail the conclusion that the preliminary ruling of the Court of Justice conflicts with the ECHR, without further involvement of the EU institutions.

The EU as an International Actor with Internal Tensions

Accession will advance the Union’s ambitions as an international actor separate from its Member States. The EU will become a ‘state-like´ party to the Convention in the sense that it will be ‘on equal footing with the other Contracting Parties’, which are all states. At the same time, the EU and, in particular its Court of Justice have been given an exceptional position within the Convention system. From the perspective of the EU, this primus inter pares position appears to be the best solution: having all the duties of states, but more rights and influence – both during the negotiations and before the Strasbourg Court. This special position is a recognition of the EU’s particularity and success as an integration organisation. At the same time, the discussion’s focus on the EU’s and the Court of Justice’s autonomy raises doubts about the EU’s maturity as an integration organisation. Accession will bring the test of whether the EU has reached the necessary maturity. Is it sufficiently integrated to join the ECHR on an equal footing as the other Contracting Parties, or will it become the victim of its own success because despite all integration it cannot endure the internal tensions that might result from joining an external human rights regime?

In the light of the Court of Justice’s far-reaching interpretation of the duty of cooperation and in the light of the Union’s new role in Strasbourg Member States will be subject to new European law constraints in relation to the ECHR. Furthermore, accession will substantively contribute to the on-going process in which European systems of human rights protection become increasingly interwoven and interlocked. It will allow the Court of Justice and the ECtHR to enter into a formal judicial discourse. Indeed, within the ever increasing scope of EU law, the Court of Justice will take the role of the national courts in international human rights discourse. However, it would be wrong to think that the Court of Justice and the ECtHR are the only two European courts. Both depend on the support of the national judiciary. Resistance towards external human rights constraints has flared up in several EU Member States, including the UK. Accession and the shift of the discourse from national courts to the Court of Justice is unlikely to have a calming effect. Indeed, the question of which public authority – Brussels, Strasbourg or the national capital – may decide the applicable standard will become even more controversial with accession.

An extended discussion of the EU’s accession to the ECHR was published in the Modern Law Review < http://www.modernlawreview.co.uk> in March 2013.

Christina Eckes is Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

Suggested citation: C. Eckes, ‘One Step Closer: EU Accession to the ECHR ‘ Const. L. Blog (2nd May 2013) (available at http://ukconstitutionallaw.org).

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Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth -  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).


[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?

helen1The Commission delivered its Report – A UK Bill of Rights? – The Choice Before Us – to the Government in December 2012. It is an odd document, dominated by the lack of agreement in the Commission as to the role that any human rights’ instrument in Britain should play. That was unsurprising since at the inception of the Commission the Coalition partners appeared to want it to play two different roles – defending or attacking the HRA. From the very outset the Commission and the idea of a Bill of Rights (BoR) was relied upon by Cameron and other senior Conservatives to allay anger in the Conservative party, and among some voters, directed at decisions made under the Human Rights Act. David Cameron announced the Commission’s inception in March 2011 at Prime Ministers’ Questions as a reaction to criticism of the decision of the Supreme Court that sex offenders should be able to challenge their inclusion on the Sex Offenders’ register. He indicated that a BoR would address the concerns expressed (17.3.11; see the Telegraph in relation to R and Thompson v SSHD). The idea that a BoR could right the wrongs of the HRA – would provide a panacea for the HRA’s ills – had apparently been embedded in the Conservative party psyche for some years: David Cameron in a speech to the Centre for Policy Studies in 2006 Balancing freedom and security – A modern British Bill of Rights said that the HRA should be repealed: “….The Human Rights Act has a damaging impact on our ability to protect our society against terrorism…. . I am today committing my Party to work towards the production of a Modern Bill of Rights”. In contrast, the 2010 Liberal Democrat election manifesto promised to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

This piece will suggest that the ‘panacea’ notion was always an illusion. It will argue that the polarised nature of the Commission in political terms, and its remit, inevitably meant that Cameron’s apparent expectations of the goods its Report would deliver were always likely to be disappointed, but that its key proposal – that there should be a new BoR – might prove advantageous in future for the Conservative party.

The majority proposal of a new Bill of Rights

The Commission was obviously constrained by its terms of reference, which most significantly included the following: to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties” (see Ministry of Justice18.3.11). If some senior Conservatives considered that the BoR could be used to restrict rights, that remit meant that it was obviously unlikely to deliver that result.

The Commission found that the strongest argument, and the one advanced by the largest number of their respondents, was that the UK already has a bill of rights in the shape of the HRA (A UK Bill of Rights? – The Choice Before Us, Overview, para 68). But, in a decision criticised by the minority (Prof Philippe Sands QC and Baroness Helena Kennedy) the majority in the Commission did not accept that therefore enactment of a new Bill of Rights was unnecessary since: ‘there is a lack of public understanding and ‘ownership’ of the Human Rights Act’ (Report, para 80) which they found was ‘equally, if not even more, evident in relation to the European Convention on Human Rights and the European Court of Human Rights’. In other words, the majority did not accept that the HRA was already playing the role of a BoR and could just continue to do so.

The majority in the Commission did not think that a public education programme about the HRA (para 7.36) or ECHR was the answer because public perceptions were not likely to change (para 12.8); so they found that there was a strong argument for a fresh beginning in the form of a new BoR (para 12.7), but without recommending repeal of the HRA. Seven out of the nine Commissioners therefore recommended introduction of a Bill of Rights: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” (para 84) Two of the Liberal-Democrat nominees in the minority, Helena Kennedy and Philippe Sands, in their separate paper in Vol 1, disagreed with the proposal for a new BoR; they also disagreed with the majority on the issue of support for the HRA and pointed out that the current arrangements were more strongly supported in Wales, Scotland and Northern Ireland than in England. But although the majority of the Commission gave support to the introduction of a new BoR (para 12.7), the role it should play in terms of creating a ‘fresh beginning’ remained unclear, as discussed below.

A polarised Report

The uneasy compromise reached between the two parties in setting up the Commission was reflected in its membership – split between nominees from each party – and in the fragmented nature of the Report itself, which contains no less than eight separate papers by Commission members or groups of members, dwarfing the sections of the Report that the majority managed to agree on. Indeed, it would not be too much of an exaggeration to say that seeking to discover any majority proposals in the Chapters in Volume 1 among the mass of descriptive material, discussion of the views of respondents, and the separate papers, is a strangely onerous task. There are two volumes running to 514  pages combined, but aside from the short ‘over view’ section at the beginning of Volume 1, it is hard to find more than about 15 pages in the body of the Report dealing with the proposals, and even those pages are largely concerned with the views of the respondents. Clearly, lack of unanimity meant that the Commission had to rely on majority views from respondents. However, the majority departed from those views in relation to the key proposal that there should be a new BoR rather than relying on the HRA as a BoR.

The separate papers reveal that the ideas of the Commission members as to the role a Bill of Rights should play are, overall, not reconcilable with each other. As Helena Kennedy and Philippe Sands put it in their separate paper: “the fault lines amongst us are real and deep”. On the one hand, a number of the Conservative nominees, reflecting views expressed at various times by Cameron, Grieve and May, appear to consider that it should be utilised to enhance Parliamentary autonomy and escape from the ‘absolutism’ of the ECHR, or from the ECHR altogether; on the other, the view of the Liberal Democrat nominees could be characterised as being that rights’ protection should be enhanced or maintained, either by means of a new BoR or via the HRA.

Baroness Kennedy and Philippe Sands’ minority paper entitled “In Defence of Rights” opposed the idea of a new BoR, but said: “We remain open to the idea of a UK Bill of Right were we to be satisfied that it carried no risk of decoupling the UK from the Convention”, a proposition they were not prepared to be associated with. They did not support a new BoR because their work on the Commission had “alerted [them] to what they believe is the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” – a view expressed by a number of their colleagues on the Commission (ie certain of the Conservative nominees) (para 12.5). Lord Faulks QC and Jonathan Fisher QC in a paper entitled ‘Unfinished Business’ found: “In the period since our appointment as members of the Commission on a Bill of Rights it has become increasingly clear that a key issue, if not the key issue, has not been adequately considered by the Commission and reflected in the terms of its report. The issue concerns how the UK should respond to the judicially activist approach taken by the European Court of Human Rights to the ECHR over the last 30 years”. They concluded that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights.”

Given such polarisation of ideas in the Commission as to the role of the HRA, ECHR and any new BoR, it is unsurprising that the ideas put forward for the content of any BoR were highly tentative and cautious, and that proposals for a BoR, as opposed to the HRA, put forward at various points in pursuit of the ‘BoR as panacea’ notion in particular by Dominic Grieve, did not find their way into the Commission’s proposals.

Would the ‘proposals’ if realised in a BoR create a difference from the HRA?

While the majority on the Commission agreed that there should be a new BoR, they were clearly unable to agree on its content. So the discussion below struggles to identify any clear recommendations from the majority that would differentiate such a BoR from the HRA. In general there are no ‘proposals’ in the sense of firm recommendations – the majority would only go so far as to identify matters worthy of consideration if a BoR was ever in contemplation.

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

The problem, from the anti-HRA viewpoint espoused by a number of senior Conservatives, is partly that the interpretations of the Convention rights at Strasbourg on a number of contentious issues – in particular prisoners’ voting rights, aspects of counter-terrorism law and deportation of non-citizens – are ones that are not assented to by the Westminster Parliament, or in some instances by judges in the House of Lords/Supreme Court, (SSHD v AF (no 3) (2009)) but which may have effect in UK law (see eg Theresa May’s speech to the conservative party conference in Oct 2011) or in effect constrain Parliament (eg compare PM Qs 24th Oct 2012 cols 922-3 with the Voting Eligibility (Prisoners) Draft Bill Nov 2012, Cm 8499).

From this viewpoint the effects of ss2 and 3 HRA combined, or of ss2 and 6, are part of the problem. S2 HRA can operate in conjunction with ss3 or 6 to allow a Strasbourg decision, that happens to bear on a matter currently in front of a domestic court, to have legal effect in domestic law (as occurred in AF no3), before the executive has a chance to react to the decision. While the government is bound under Article 46 ECHR by final Strasbourg decisions, the executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might.

Senior Conservatives have proposed changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, presumably partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty. In 2009 Dominic Grieve said that the equivalent of s2 HRA in a BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Grieve has argued that the HRA had been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended”. Instead, he said, a new bill of rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court: “We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions” (Grieve Middle Temple Lecture, 2009). He has also said: ‘there is no duty in the ECHR to follow Strasbourg case-law’ (Conservativehome blog 2009). Commission member Anthony Speaight said on this in evidence to the Constitutional Reform Select Committee in 2011: ‘the court…makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right….’. Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. He has also said on s3 that it is wrong that courts should ‘have power to stand a statute on its head’ (Conservativehome blog 2009).

Unsurprisingly, the Commission’s proposals did not meet these concerns. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under s2; it was clearly the intention underlying s2 that the jurisprudence would not be viewed as, in effect, binding (see Klug and Wilbore ‘Follow or Lead?’ (2010) 6 EHRLR 621). But the stance taken towards s2 in the jurisprudence overall bears little relation to the wording it employs. It was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, (eg Lewis ‘The European Ceiling on Human Rights’ [2007] PL 720) which until recently remained the dominant approach (Manchester CC v Pinnock (2010)). On the other hand, in R v Horncastle (2010) the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as Parliament originally intended. The Commission noted that there was a substantial body of opinion that wanted to enable it to be made clearer that courts were free to depart from Strasbourg (at paras 56 and 57). The Commission noted that JUSTICE had reflected this position: “there has been a longstanding debate on whether section 2 [of the Human Rights Act] requires our judges to be bound by the jurisprudence of the European Court of Human Rights. Although there is a clear line of case law which suggests our judges consider themselves so bound, there is nothing in the Human Rights Act 1998 which requires this approach…The judges themselves appear to be moving away from this unduly restrictive approach…Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudence.” (para 56)

But although, as JUSTICE noted, it cannot be said that the judges have confined themselves only to ‘taking account’ of the Strasbourg jurisprudence, the Commission did not propose a change to the position under s2: ‘There was also a clear majority in favour of maintaining the requirement in the Human Rights Act on UK courts to ‘take into account’ relevant judgments of the European Court of Human Rights with three quarters of those responding on this issue wanting to maintain the current formulation. However, a number of those taking this view did so on the basis that our courts were now correctly interpreting the Act’s wording in this respect having failed on some occasions to do so in the past’ (para 58).

The Commission proposals were somewhat equivocal as to the key current domestic ECHR enforcement mechanism in s6 HRA, recommending in its ‘over-view’ that consideration should be given to broadening the definition of ‘public authority’ so that private sector organisations providing public services would count as ‘public authorities’ (para 97) although in the Conclusions chapter it merely stated that “the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward” (para 12.26).

Grieve had proposed that the s10 HRA fast-track procedure for responding to a s4 declaration should be abolished (British Academy Forum (2010)) which would be one means of limiting the impact of s4, which has come to be viewed as creating a de facto obligation upon the executive to act, even though as a matter of law a s4 declaration can be disregarded. But the Commission proposed no change to ss4 or 10, finding that s4 had performed successfully (para 12.25).

Overall, no ideas for significant changes to the interpretation and implementation of the rights in the UK were put forward by the majority to warrant consideration in relation to any BoR. The Commission concluded that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (para 95).

Changes to the listed rights?

Any aim of senior Conservatives of seeking to weaken the ties to Strasbourg via a BoR would not be realised via changes to the listed rights, as far as this Report is concerned, which was no doubt inevitable, given the Commission’s remit. The Commission said that it did not oppose the concept of additional rights in a BoR in principle (para 12.18). When listed rights were referred to in the Commission’s proposals, the reference was, it appears, to the list of ECHR rights in Sched 1 HRA (para 12.11) possibly with some additions. The Commission considered the inclusion of a right to jury trial, but the Report found that there were problems regarding the forms that a right to trial by jury could take (paras 8.41, 8.44). It also looked at the possible inclusion of rights to administrative justice and the creation of limits on the power of the state to impose administrative sanctions without due process of law, such as fines for speeding (British Academy Forum (2010)). The Commission merely concluded that consideration should be given to inclusion of such rights (para 8.44), if there was to be a BoR.

The free-standing anti-discrimination Protocol, Protocol 12 ECHR has not been ratified by the UK and there are no indications at present that the current government intends to ratify it. None of the speeches of Conservative spokespersons before or after the 2010 Election made mention of the possibility of protecting the further rights under Protocol 12. The Commission found that if a BoR was under consideration in future “the most obvious candidate for inclusion” was Protocol 12 and the “right to equality and non-discrimination currently enshrined in the Equality Act 2010″ (paras 8.15, 8.23 and 91).

Various groups put forward arguments to the Commission for specific additions to the current HRA Sched 1 rights, such as the inclusion of certain socio-economic rights (eg Children’s Rights Alliance advocating the inclusion of children’s rights). But the Commission did not recommend that particular “socio-economic” or environmental rights should be added to a bill of rights: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.” (paras 91and 8.21) Similarly the Report noted that “Approaching 100 respondents to our consultations were in favour of the incorporation into any UK Bill of Rights of rights contained in international instruments which the UK has already signed but not fully incorporated into our domestic law” (para 8.45), but did not make a proposal that such rights should be included.

So in terms of the list of rights covered, any Bill of Rights based on these proposals could look something like an ‘HRA plus’ (term used by JCHR), but not plus much. Chapter 8 of Vol 1, which considered these rights, was concerned more with the views of respondents to the Commission, than with clear proposals.

The question whether a BoR should give greater guidance to judges on balancing competing rights was answered in the negative: ‘On balance our conclusion, in line with that of the majority of respondents on this issue, is that if there were to be a UK Bill of Rights the balancing of competing rights within such a Bill, where such occurred, would be better left to the courts not least because of their ability to weigh the competing considerations against the facts of the particular case before them.’ (para 8.51)

The Commission considered that changes to the wording used to express the rights could be employed to create a distinctively ‘British feel’ to the instrument in order to address the public’s lack of allegiance to the HRA. It was not proposed that the wording of the rights themselves should see any radical change but the Commission considered that if a BoR was under consideration it would be “desirable in principle” that its wording should reflect “the distinctive history and heritage of the countries within the United Kingdom.” (para 86 and 8.8)

Relationship between the ‘proposals’ and the concerns about the HRA identified by the majority

One of the firmer conclusions of the majority was that “the key argument is the need to create greater public ownership of a UK Bill of Rights than currently attaches to the Human Rights Act” (para 12.11). However, the proposals that emerged would be unlikely, if realised in practice, to address that need, taking account of the context – the apparently deep public dissatisfaction with the HRA. They are so modest and cautious (even leaving aside the devolution context which clearly provided a problematic back-drop to the Commission’s work) (Chap 12, 12.3, 12.4 and Chap 9) that they might be said to amount in effect to a proposal to re-badge the HRA in a BoR, despite the Commission’s acceptance that it has become discredited in the eyes of the public. A key question, unexplored in the Report, is – why is there dissatisfaction with the HRA? Of course there was no public information campaign prior to its introduction, leaving a vacuum which created room for a narrative hostile to the HRA to take hold. Lord Lester, speaking as a member of the Commission, has attributed the nature of that narrative to a prolonged media attack on the HRA which has at bottom the purpose of protecting their own commercial interests; he said on this issue to the Political and Constitutional Reform Committee in 2011: “some sections of the media—self-interested, God bless them—have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act…” (Answer to Q 59). He indicated that the hostility might spring from restrictions “on their right to invade personal privacy” created by the HRA (Answer to Q 65).

For example, the idea – part of the media campaign against the HRA – that human rights’ concerns stand in the way of Britain’s ability to combat terrorism, has found a particular focus in relation to Abu Qatada (see eg The Sun 15.4.12). David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the Qatada case as illustrating the need for reform, he said ‘we have gone through all reasonable national processes…yet we are still unable to deport [or detain him]’. Thus, parts of the media and senior members of the Conservative party have taken the stance – possibly coincidentally – that the Human Rights Act makes dealing with suspected terrorists harder, putting lives and national security at risk; and the lines between the actual impact of the HRA in this respect in legal terms, and what would occur in any event under the ECHR at the international level, have become blurred, perhaps intentionally.

Thus if a BoR was to be introduced, based on these proposals, which would play a role very similar to that of the HRA, it would appear probable that parts of the media might attack it as a merely re-badged HRA, leading again to public dissatisfaction with the new BoR. But conversely and unpalatably it might appear to follow that if a new BoR was introduced post-2015 under a Conservative government, not based on these proposals, and disassociated from the ECHR, it would be welcomed by parts of the media, meaning that it might be more likely to command public acceptance, at least in England.

Conclusions

It is concluded that there was never any real basis for considering that the Commission might propose a BoR which would answer to the expectations of a BoR expressed by Cameron in 2011. Clearly, the split in nominees, on party lines, and the Commission’s remit, always suggested that the proposals for a BoR that eventually emerged were not likely to do so. It would appear that the role a number of Conservatives apparently wanted the BoR to play, and the proposals likely to emerge from that Commission, were never likely to cohere with each other. It seems unlikely that there was ever any real expectation from the point of view of the Conservative leadership that the proposals would lead to a new BoR that might cure the ills of the HRA. Thus, deployment of the notion of a BoR for the last few years as a panacea for the ills of the HRA has arguably always been an illusion, designed to calm right-wing concerns about non-repeal of the HRA, since repeal was almost certainly impossible in the context of the Coalition. In a much-reported speech Theresa May recently made it clear in relation to the Qatada saga that repeal of the HRA and withdrawal from the ECHR would be on the table if the Conservatives gained a majority in 2015. “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?” she said. No mention was made of the Commission’s Report on the BoR: the role Cameron had previously outlined for it appears to have been quietly forgotten. In other words, senior Conservatives seem to be distancing themselves from this Report, unsurprisingly, and the debate appears to be shifting from the ills of the HRA to those of the ECHR at Strasbourg.

This piece has argued that the Commission did fulfil the role of simultaneously preventing conflict between the Coalition partners over the HRA for a time and calming Conservative concerns regarding decisions under the HRA. But in so far as there were real expectations  that a BoR would provide an answer to the ‘problem’ of the HRA, the Report might appear to be disappointment to the Conservative leadership since if its proposals (or ideas it put forward that could warrant consideration) were realised in practice it clearly would not provide the panacea apparently hoped for. But on the other hand, the majority of the Commission did propose a new Bill of Rights, creating a momentum behind the BoR idea which might be advantageous post-2015 to a Conservative government if one is returned and pushes forward with the proposals recently floated by Theresa May regarding the HRA and ECHR. The proposal of a BoR could help to pave the way to repeal of the HRA; it might allay concerns that Britain would become ‘a pariah state’ (Dominic Grieve) if it withdrew from the ECHR, and the BoR itself could act as a Trojan horse in terms of restriction of rights (Michael Fordam QC Report, para 7.32).

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’   UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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Colm O’Cinneide: Human Rights, Devolution and the Constrained Authority of the Westminster Parliament

a_ocinneideThe debate over the place of human rights in UK constitutional law continues to run and run. The Home Secretary, Theresa May MP, has recently criticised the manner in which UK judges are interpreting the right to family life protected by Article 8 of the ECHR. A private members bill tabled by Tory MP Charlie Elphicke, the Human Rights Act 1998 (Repeal and Substitution) Bill, which would de-incorporate Convention rights and replace them with diluted ‘British’ replacements, received its Second Reading on the 1st March 2013. Furthermore, at the time of writing, the Mail on Sunday is quoting Theresa May again to the effect that the next Tory election manifesto will include a commitment to withdrawing from the jurisdiction of the European Court of Human Rights, de-incorporating Convention rights, or some such equivalent measure.

As a consequence, it may be a good time to highlight the fact that changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK.

The HRA itself is a piece of primary legislation which applies to all public authorities throughout the UK and can be amended or repealed by the Westminster Parliament. The UK’s international relationship with the Council of Europe and the European Court of Human Rights also comes squarely within the sphere of reserved powers. However, human rights are not per se a reserved function, and there exists a separate and distinct ‘devolution dimension’ to the UK system of rights protection. The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues (S. 6(2)(c) and s. 24(1)(a) of the Northern Ireland Act 1998; s. 29(2)(d) and s. 57(2) of the Scotland Act 1998; s. 81(1) and s. 94(6)(c) of the Government of Wales Act 2006). They can also take measures to give further effect to the UK’s international human rights obligations when acting within the scope of their powers, including but not confined to those that arise under the ECHR (para. 3(c) of Sch. 2 of the Northern Ireland Act 1998; para. 7(2) of Schedule 5 of the Scotland Act 1998; and in general Schedule 5 of the Government of Wales Act 2006).

The existence of this ‘devolution dimension’ imposes some constraints on the freedom of the Westminster Parliament to reconstruct UK human rights law as it sees fit. For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters. Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions.

Thus, for example, if the Westminster Parliament wished to root out the ECHR rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal from Convention rights from the devolution framework. Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA, the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.[1]

Furthermore, the political context is very different in the devolved regions when it comes to human rights. The recent report of the Commission on a Bill of Rights noted that ‘there was little, if any, criticism of the Strasbourg Court, of the European label of the Convention, or of human rights generally in Scotland, Wales or Northern Ireland’ (p. 163), while Philippe Sands and Helena Kennedy in their minority report suggest that ‘existing arrangements under the Human Rights Act and the European Convention on Human Rights are not merely tolerated but strongly supported’ in the devolved regions (p. 266). In addition, as Christine Bell has discussed on this blog, Northern Ireland, Scotland and Wales are in the course of developing their own unique approaches to human rights. This makes it unlikely that the devolved legislatures will be willing to consent to any Westminster legislation which sought to make significant changes to how human rights are protected within the sphere of devolved functions. Indeed, in giving evidence to the Commission on a Bill of Rights, the Scottish Government made it clear that it considered that the Westminster Parliament lacked the legitimacy to determine the scope of human rights protection in Scotland (see p. 166 of the Commission’s report).

Additional issues arise in respect of Northern Ireland. The Belfast Agreement specifically required that the ‘UK government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention’ (Rights, Safeguards and Equality of Opportunity, para. 2.). In addition, as Brice Dickson and Colin Harvey have recently discussed on this blog, a separate Bill of Rights process is underway in Northern Ireland, whose roots also lie in the provisions of the Belfast Agreement. As a result, any attempt by Westminster to alter or amend existing human rights law which applies to Northern Ireland (whether relating to devolved functions or to reserved functions such as national security) is likely to be viewed as an unwanted interference with the fragile constitutional settlement that has been constructed there on the foundations laid down by the Belfast Agreement.

Of course, the Westminster Parliament is free to alter or amend existing UK human rights law as it applies to the sphere of reserved functions, as recognised by Anthony Speaight QC in a thoughtful paper on devolution attached to the final report of the Commission on a Bill of Rights. However, even if Westminster were only to legislate in this field in respect of reserved functions (and exempted Northern Ireland from the scope of application of the proposed new law), devolution would still have the potential to create troubling inconsistencies in UK human rights law.

For example, if Westminster were to de-incorporate Convention rights and replace the HRA with a new ‘British’ Bill of Rights containing home-grown rights standards that applied in the sphere of reserved functions, Convention rights would still be applicable within the sphere of devolved functions. This could generate some complex legal issues where devolved functions in areas such as criminal justice and social welfare overlap with reserved powers such as immigration control. (These complexities would obviously be exacerbated if the entirety of Northern Irish law, including law relating to reserved functions, was exempted from the scope of the new ‘Bill of Rights’.) It would also mean that Convention rights would continue to be applied by UK courts in the context of the devolved regions, ensuring that the Strasbourg jurisprudence would continue to exert some direct influence on the development of UK law.

Alternatively, Westminster could simply choose to ignore the devolved legislatures and push through a new human rights law. However, this could generate a constitutional crisis if one or more of the devolved legislatures and/or governments were to cry foul, and it would in all probability breach the terms of the Sewel Convention. In any case, as already mentioned, the devolved legislatures might be able to limit the effects of such a measure by enacting their own devolved version of the HRA.

In general, the ‘devolution dimension’ cannot be readily ignored or sidelined in the ongoing human rights debate, as the Commission on a Bill of Rights recognised in its final report. The current parameters of the devolution settlement impose substantial legal and political constraints upon the power of the Westminster Parliament to alter existing UK human rights law. This will not come as a surprise to legal experts who are well aware of the limits to parliamentary sovereignty, as analysed by Mark Elliott, Nick Barber and others. However, discussion of these constraints have been largely absent from parliamentary or media debates on the HRA and ECHR. In particular, there has been little recognition that Convention rights have become woven into the fabric of the unwritten UK constitution in multiple different ways, which may prove very difficult to unravel.

Philippe Sands and Helena Kennedy have suggested that certain of their colleagues on the Bill of Rights Commission viewed the constraints imposed by devolution on the freedom of action of the Westminster Parliament as a case of the ‘tail wagging the dog’. There is a danger that a similar attitude may blind politicians in Westminster to the reality that the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.

Colm O’Cinneide is a Reader in Law at University College London. 

Suggested citation: C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)

 


[1] See the research paper written by Anthony Speaight QC and attached to the report of the Commission on a Bill of Rights, ‘Devolution Options’, pp. 243-256, especially at p. 250.

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