Tag Archives: European Court of Human RIghts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UK withdrawal from the ECHR?

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

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

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

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

Reform of the Court

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

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

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

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

The responsibility weighing on the UK today

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

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

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

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

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

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

 

 

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

 

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Craig Prescott: Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL

Vincent_Willem_van_Gogh_037As is well known to readers of this blog, the issue of prisoner voting has been a long running and high profile saga. The Justice Secretary, Chris Grayling has argued that it is a ‘totemic issue’ that shows how the ECtHR has ‘lost democratic acceptability’ (Guardian, 20 Nov 2013). However, this issue can only be understood against the background of concern about the Convention. David Cameron captured this feeling when discussing the Bill of Rights Commission by arguing that it is ‘about time we started making sure decisions are made in this Parliament rather than in the courts’ (BBC News, 16 Feb 2011). At its broadest level, prisoner voting shows how the core principles of the UK constitution, parliamentary sovereignty and the rule of law, can collide with each other.

Given the combination of law and politics that pervades this issue, it was natural for the UK Constitutional Law Association and the Study of Parliament Group to hold a joint event to explore the issue in depth, but thankfully, one step removed from the more frenzied political debate. We were fortunate to have four speakers who have been involved in different aspects of the debate. The discussion was started by Colin Murray, Senior Lecturer at the University of Newcastle, who was the Specialist Adviser to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill. He was followed by Dr. Michael Pinto-Duschinsky, Senior Consultant on constitutional affairs to Policy Exchange, who was a member of The Commission on a Bill of Rights. Jeremy Waldron, Chichele Professor of Social and Political Theory and Fellow, University of Oxford, All Souls College and University Professor, NYU School of Law, drew on his evidence he gave to the Joint Committee on the Draft Bill. The final speaker was Aileen Kavanagh, Associate Professor, University of Oxford and Tutorial Fellow at St Edmunds Hall College, has in her research, considered one key feature of Hirst, which is what weight the courts should place on the parliamentary discussion of human rights (or lack of) when assessing legislation for compatibility with human rights.

The aim of this event was to discuss the broader questions that surround this issue. For a discussion of the specific issue of whether prisoners should receive the right to vote, the reader should direct their attention to Alison Young’s previous post on this blog, Prisoner Voting – Human or Constitutional Right? And to the exhaustive report from Joint Committee on the Draft Voting Eligibility (Prisoners) Bill).

Colin Murray

Colin Murray argued that in Hirst, the ECtHR was rather careful in its judgment, and that they toned down the decision in the Scoppolajudgment that followed Hirst. The court held that the current law went too far, and hoped that the UK would respond to remove the ‘blanket ban’. In many ways, prisoner voting flags up the rigidity of the proportionality test. It is very difficult to argue that a complete ban was proportionate and necessary to achieve a legitimate aim. In this way, the proportionality test can yield some strange decisions on moral issues. The argument from the British Government in Hirst, that this was simply a political question, to be decided through the political process and not the courts, simply did not wash with the ECtHR.

Murray then discussed the legislative response, in particular the Joint Committee on the Draft Bill that reported on 18th December 2013. Their conclusion was that those sentenced to twelve months or less and those in the last six months of their sentence should get the vote. As Jeremy Waldron stated, this seems a reasonable compromise. However, we are still waiting for the government’s response to the report. It was a notable absentee in the Queen’s Speech for the last session of this Parliament, suggesting that this has been kicked into the long grass again, perhaps until after the general election in May 2015.

This issue tells us about constitutionalism in the UK, the role of principle of parliamentary sovereignty and its counterweight the rule of law. Prisoner voting tells us where that system is creaking. Fundamentally, the government’s argument is that the right to vote is different from the “right to free elections” as contained in Art 3 of Protocol 1 to the ECHR: it is a privilege granted by Parliament; but the European Court of Human Rights (‘ECtHR’) is clear that today, voting is a right, and you tamper with it at your peril. The Government thinks it has a strong hand, and can put the ECtHR in the corner, and clip the wings of the Convention, but the Government has taken a more difficult position than they believe. The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill took the view that voting is a right, and should not be removed without a good reason. Murray argued that it is the defining legitimating factor that justifies parliamentary sovereignty. Tamper with this, even slightly, at your peril.

When the Reform Act of 1867 moved the jurisdiction of hearing election petitions (the legal process by which an election result can be challenged) from Parliament to the courts, a rash of extra cases was feared. Yet, this did not happen, and cases such as Watkins v Woolas are rare. Even then, the courts are castigated for this, just read Michael White’s comment on that case in the Guardian. Generally, courts don’t want to get involved in the political process and the line of judgments from Hirst to Scoppola in many ways follow this tradition and are timid judgments from the ECtHR. The courts, rather than undermining parliamentary sovereignty, are striving to protect democracy at all costs. A constant failure to heed warnings such as this could blow parliamentary sovereignty apart as the legitimating factor of parliamentary sovereignty is compromised.

Michael Pinto-Duschinsky

Michael Pinto-Duschinsky focused on the broader issues that prisoner voting raises and discussed the architecture of human rights protection. Drawing upon his experience on the Bill of Rights Commission, when he was ‘surrounded by lawyers’ he wanted to avoid a debate about the terms of reference and categorically stated that the issue is not prisoner voting itself.

The real issue is who makes the final decision, and the interesting aspect to this debate is that people with many things in common can have polar opposite views. Pinto-Duschinsky compared himself to Lord Lester of Herne Hill, who was one of the most vociferous campaigners for the Human Rights Act. They were both shaped by the holocaust, abhor torture, have campaigned for rights and were engaged in the battle for civil rights in the Deep South during the 1960’s. However, whereas Lord Lester sees the law as being the key to achieving human rights, Pinto-Duschinsky, while acknowledging the valuable role of courts, feels that they are no more infallible than legislatures. He argues that, in a democracy, court decisions must be capable in some circumstances of a democratic override by the legislature.

Pinto-Duschinsky highlighted how for every example in favour of the courts having the final say as opposed to the political process, an example can be found that goes the other way. The example given by Sir John Laws in his celebrated article, ‘Law and Democracy’ ([1995] PL 72) of the Athenians, under direct democracy, sentencing to death eight commanders for the loss of their crews in bad weather during the battle at Arginusae, can be can be contrasted against the verdict of the US Supreme Court in Dred Scott v Sandford 60 US 393 (1857) which was a significant contributing factor to the Civil War. The idea that judges equal good, whilst democracy equals bad, is far too simplistic. Both play a role, but issues such as prisoner voting should ultimately rest with the legislature. Courts, such as the ECtHR, which have little democratic legitimacy, should be careful when stepping into political territory such as this.

Jeremy Waldron

Jeremy Waldron agreed that prisoner voting has to be settled by Parliament, it’s not an issue like abortion which could be settled by a court: it must be settled legislatively. ‘Settled legislatively’ has a specific meaning. Although a vote was taken in the House of Commons with 234 to 22 votes in favour of retaining the ban (HC Deb, 11 Feb 2011, Vol 523, Col 492-586,), that cannot settle the issue legislatively. Settling a matter legislatively requires the due process that legislation represents, the rhythms of the legislative process, of the Second Reading, Committee, Third Reading and Report Stages in both the chambers of Parliament.

However, Parliament must acknowledge that they are talking about rights. In particular, voting has been described by some, including William Cobbett as the ‘right of rights’. When rights are at stake, Parliament should proceed more carefully. There is a need to avoid knee-jerk reactions. British justice is wonderful, but not on all matters. There is no harm in having issues flagged up by the courts, in a weak system of judicial review, where the courts do not have a final word. In this sense, judicial review is a canary in the mine, a warning system to alert parliaments to problems. .

It must be emphasised that this is a right that goes to the heart of democratic legitimacy. Parliamentary sovereignty derives its legitimacy from being elected by the citizenry, which in turn, requires that citizens possess the right to vote. Parliament depends on the rights of millions to vote for its authority and legitimacy. As John Hart Ely stated in Democracy and Distrust, there is a case for a strong form of judicial review when a discrete minority has been shut out of the representative system. Arguably, the issue of prisoner voting complies with those requirements. This does not mean that courts should consider it at the expense of Parliament, but that Parliament should consider the courts’ perspective. Majorities are not incapable of resolving flaws of a majoritarian system. However, they must avoid the knee-jerk sovereignty based attack that argues that the court is overstepping its jurisdiction at the expense of national parliaments. Such issues need to be addressed in a sober deliberative spirit, and constitutional arrangements that allow that to happen should be applauded.

Pinto-Dushinsky in response, pointed out that no such reflection took place when signing up to the ECHR in the first place, and no debate took place on Protocol 1, as under the Ponsonby Rule treaties are laid before Parliament without a debate being required (although one can be requested, now see Constitutional Reform and Governance Act 2010, ss. 20-25). There is a conflicting debate about who has the final word, as a matter of law at a domestic level it’s clear that the last word remains with Parliament. Under the Human Rights Act, s 4 (6), a declaration of incompatibility does not affect the validity of the Act of Parliament in question. But politically, politicians treat a declaration as a strike down power. As a matter of international law, the final say appears to rest with the ECtHR, and the UK could be liable for damages for being in breach of the ECHR. However as Murray pointed out, the ECtHR has no power to compel those damages being paid. As is common with the UK constitution, it seems that the most appropriate answer would be restraint from all sides.

Aileen Kavanagh

Aileen Kavanagh raised an important question: why out of all the issues with the ECtHR has the Government and Parliament made such a big issue out of prisoner voting? Why has this been the issue over which to fight?

Firstly, the issue clearly fits into the ongoing concerns about the ECHR that a large section of Conservatives hold, in particular its consequences for parliamentary sovereignty. But also, politicians have seized upon this issue, because at the very least, they can make the argument that a prisoner, who by definition has not ‘obeyed the rules’ should have no role in formulating those rules and so should not be allowed to vote. In this sense a politician can take, what they perceive to be, a ‘respectable stance’ against prisoner voting, in a way that a politician simply cannot over an issue such as torture. A politician arguing against prisoner voting can claim that they are protecting fundamental principles such as the sanctity of the vote. There is also a basic disagreement over whether voting is a right or privilege, which is available to those who fulfill certain conditions. More generally the issue of prisoner voting fits into the broader narrative on criminal justice of being ‘tough on crime’ and no political party wants to be seen to be the softest on crime.

Kavanagh also highlighted how Art 3 of Protocol 1 to the ECHR does not explicitly provide for the ‘right to vote’. It can fit into the criticism that the court increasingly stretches its ‘living instrument’ doctrine too far, and finding a ‘right to vote’ is a big extrapolation from the text. However Jeremy Waldron flatly disagreed with this point, arguing that the Art 3 requires ‘free elections’, held by ‘secret ballot’, ‘under conditions which will ensure the free expression of the people’, in this context, he argues that the ‘right to vote’ is a necessary implication.

There are issues with the Hirst case itself. Its highly unfortunate that the domestic case only went to the Divisional Court, [2001] EWHC Admin 239, with leave to appeal refused by the Court of Appeal on the grounds of there being no reasonable chance of success, [2001] EWCA Civ 927. If more judicial muscle had been applied at the domestic level then the ECtHR might have responded differently. Aileen Kavanagh captured the impact of the ECtHR’s judgment by stating that the judges misjudged the politics on the issue. They simply thought that they were dealing with a thirty year old law, which drew on Victorian legislation and the judges did not appear to understand that reasonable people could and did disagree over prisoner voting. The Court drew on previous case law and assumed a right to vote, with little justification being given. They dismissed the fact that thirteen out of 47 member states have bans on prisoner voting, when this could have been a ground on which to apply the margin of appreciation. Another interesting feature is how the Court drew a negative inference from the lack of parliamentary debate on the issue, which, as Lord Sumption suggested in Chester,could in principle be an example of a ‘complete consensus’ [para 136] on the matter. Probably this aspect would be best viewed as a neutral consideration.

The Study of Parliament Group and the UK Constitutional Law Association would like to thank all four speakers for a clear and illuminating discussion and Alexander Horne for chairing the discussion. A special thanks should go to Liz Carter at UCL and Jack Simson Caird for organising the event.

Craig Prescott is a Teaching Assistant at the University of Manchester and Visiting Tutor at King’s College London.

Suggested citation: C. Prescott, ‘Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL’ UK Const. L. Blog (9th July 2013) (available at http://ukconstitutionallaw.org)

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David Mead: The Future of the HRA Under Labour

davidmeadI might have misheard but perception does seem to be nine-tenths of the law when it comes to the Human Rights Act at least. In a piece in today’s Daily Telegraph, Shadow Justice Minister Sadiq Khan outlines Labour’s plans for reforming the Human Rights Act, or one aspect of it anyway. There is a need to revisit the wording – and thus the power – in s.2 to “take account” of Strasbourg case law and decisions.

 our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.

The solution is for guidance, in the first instance, but Khan does not rule out legislation. The aim is to

make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.

This very short post will consider some of the issues this proposal might throw up. First, and perhaps most obviously, it is hard to think what effect extra-legal guidance will have on the approach judges take. It is markedly different, say, to s.19 of the Immigration Act 2014 which lists clearly the factors that should and should not be taken into account in determining where the public interest sits when deciding whether or not for example to deport someone. This sets up a battle between that section and s.3 of the HRA – which requires courts to give convention-compatible meanings wherever possible. If there is a divergence on where the public interest rests between what s.19 dictates and Strasbourg case-law (which is beyond my ken, and certainly beyond the scope of this blog), then the question will be whether Parliament has signalled in a sufficiently strong fashion what its intention is as to make not following the s.19 formula a departure from a fundamental tenet of the statutory scheme.

Such questions do not arise with proposed guidance – in whatever form it may take. It is hard to think of a comparable situation – government signalling (either by means of parliament in the form of an SI or departmental circular or Code of Practice) to the judiciary what a section in an Act means. The only matter that sprang to mind were the Sentencing Guidelines but those are not a political construction but are created by the judges themselves, a form of intra-judicial dialogue. It is hard to imagine any judge actually giving airtime to the guidelines, if for no other reason – as Mark Elliott points out in his blog on the developments – of the sanctity of the separation of powers. In trying to come out victorious in what is perceived as an institutional battle between the UK and “foreign” Europe (not Khan’s words or even his sentiment I should add) Labour’s plan, if it eventuates, risks kickstarting an even more seismic inter-instituional battle, of the sort we thought we’d long left behind, centuries ago. It is something of an irony then that Labour’s proposal is steeped in history.

 We’ll use the 800th anniversary of the Magna Carta – the world’s first bill of rights – to assert the role of British courts vis-à-vis Strasbourg.

To paraphrase Lord Justice Diplock in BBC v Johns in 1965, it’s now 400 years and a civil war too late for the government to be trying this sort of thing.

The second point follows on. The battle is being conceived as battle of the nation state against the supranational body – the Daily Telegraph piece has more than one mention of sovereignty. My point here is not the same as Mark Elliott – that this elides the national and the international sphere of influence, assuming they are as one (and that the UK is losing out) – but perhaps a more fundamental one. As I see it, the “real” battle of the HRA is between our domestic courts and our domestic Parliament – something this proposal simply ignores, constructing the battlefield and combatants elsewhere. I have written elsewhere (some might say extensively and mistakenly) over the past few years about what I consider to be the excessive (albeit occasional) use of s.3 to alter a clearly designed statutory scheme – and the lack of transparency that this brings, in contrast to a declaration of incompatibility under s.4. My most recent foray has been with Fergal Davis in the Common Law World Review, in the context of criminal law. Most egregious in my list is always Hammond, where the counsel for a prisoner and for the Secretary of State colluded such that very clear wording in the Criminal Justice Act 2003 – that prisoners were not entitled to an oral hearing when a judge was determining the mandatory tariff post-Anderson – was read as entitling a prisoner to one if not to allow it would be unfair. Why is this any less an attack on sovereignty? There are real discussions to be had about the future of the HRA – and its place in our legal framework and culture, but I am not at all convinced that s.2 is the best or right target. As many others have claimed today, guidance may well redundant in that judges have started to shift from the rigidity of the Ullah mirror principle, such that guidance may do little except enshrine current judicial practice. In turn, and what never seems to get much of a look in in the discourse of ministers and shadow ministers, is the noticeable placatory shift at Strasbourg: far more conciliatory and accommodating in several recent notable judgments, dating back to Austin, through von Hannover (No 2), to Animal Defenders and most recently RMT v UK. In each, we can – if not clearly and explicitly – see the Court playing a political role, seeking to staunch national discontent with judgments would appear to be more politically welcome. In the RMT case, in which the UK’s ban on secondary industrial action was held not to violate article 11, the Court said this (at [99]):

In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

There has been no discussion or mention of the RMT case in any mainstream British newspaper. This is important, and leads us into the third and last point to be made in this blog. It links back to the opening line – that it is the seeming need to be “doing something” that might here be at play. There has been a clear and constant (to use the phrase in Ullah by Lord Bingham) media narrative that must inevitably skew the public’s perception of the HRA. I am currently working on an empirical study of newspaper reporting of key ECHR and HRA judgments. Aspects of this were to have been presented at Leicester two weeks ago but I was unable at the last minute to attend. Through various techniques of misreporting – prominence, partiality, phrasing and precipitation (for example where cases are reported unfavourably at very early stages but with silence on the eventual outcome) – readers (perhaps of only certain newspapers such as The Sun and The Daily Mail) have a very misinformed understanding of the reach and scope of human rights protection and the operation of the ECHR and the HRA. In brief, readers would think the government tends to lose cases at Strasbourg. There was not a single mention in any newspaper of the UK’s success in the three most recent cases: RMT, Church of the Latter-Day Saints or Jones(though this did make it to the pages of The Guardian and The Evening Standard). A search against The Daily Mail on-line with the term “European Court of Human Rights” produced a skew towards prisoners – either voting or sentencing – towards immigration decisions, and towards criminals and terrorists, what are known colloquially as FPTs (foreigners, paedophiles and terrorists), a framing of security not equality. We certainly see nothing approaching the full panoply of human rights cases or issues. Last, readers would think that the human rights project is not about protecting victims but is a criminal’s charter. There was on 20 April a full page in The Daily Mail dedicated to the Strasbourg case arising from the civil action brought by the victims of the Omagh bomb against the alleged perpetrators who were, in turn, claiming a breach of Article 6 in the civil proceedings. The small problem was that this was simply at the stage of a communication to the government; it has not yet been declared admissible – and of course may never be, but it would be a very well-informed reader to realise the rather precipitate nature of this report. Yet, the editor chose not to mention even in passing the RMT judgments of the Court of only 10 days earlier, but instead highlighted this one at almost its earliest possible stage.

In short, while in Sadiq Khan’s words Labour’s “unswerving support for the Human Rights Act and our membership of the European Convention on Human Rights” are very much to be welcomed, as his determination to take the Tories on, perhaps a better choice of foe, as he seeks to build a new consensus, would be Michael Gove. The most recent Citizenship curriculum for 2014 onwards for KS3, 11-14 year olds, downgrades any mention of rights and instead refers to “our precious liberties”. What hope, and what price, rights in the future?

 

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead, ‘The Future of the HRA Under Labour’ UK Const. L. Blog (4th June 2014) (available at http://ukconstitutionallaw.org)

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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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