Tag Archives: European Court of Human RIghts

Roger Masterman: The Mirror Crack’d

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Roger Masterman is Reader in Law at Durham University.

 

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

 

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Ronan McCrea: Strasbourg Judgement in Eweida and Others v United Kingdom

Ronan%20McCrea_07The European Court of Human Rights has issued its decision in the highly anticipated case of Eweida and Others v United Kingdom. This ruling (actually four separate cases decided jointly) was billed as the most significant case on freedom of conscience and religion in many years. It raised important issues in relation to the right to religious expression in the workplace and the reconciliation of freedom of conscience and religion with other rights, most notably freedom from discrimination.

The Court was faced with four applicants Christian applicants all of whom felt that workplace regulations prevented them from expressing or acting in accordance with their faith.

The first, Nadia Eweida, was prevented from wearing a cross over her uniform by her employer British Airways (it subsequently changed its policy to permit employees to wear crosses). The second, Shirley Chaplin, was a nurse dealing with dementia patients prevented by her employer from wearing a cross on a chain on grounds that it represented a risk of infection and an injury risk should patients grab it (her employer offered to allow her to affix a cross to her nurse’s badge but she rejected this offer as badges must be removed during certain tasks).

The third, Gary MacFarlane, was sacked as a sex therapist by RELATE, a counseling charity, as he failed to abide by a non-discrimination policy requiring him to give counseling to couples irrespective of sexual orientation. The fourth, Lillian Ladele was a civil registrar disciplined by Islington Council on the basis that her unwillingness to register civil partnerships breached its non-discrimination policy.

The judgement is certainly significant and represents a potentially important development in the approach of the Court to Article 9. The lion’s share of publicity has gone the ruling in relation to Ms. Eweida the only one of the four to win her case. However, her win was based on rather narrow factual questions and may be significantly less important than the rejection of the claims of MacFarlane and, particularly, Ladele. The importance of the ruling rests on three main points.

Anti-Discrimination Laws and Freedom of Conscience

The core of both the claims of both MacFarlane and Ladele was that, provided that no individual was actually deprived of a service, it was disproportionate and discriminatory for employers to require employees to provide services on a non-discriminatory basis when doing so obliged such employees to go against their religious beliefs in relation to the sinfulness of homosexual conduct.

The Court did not agree. It found that in both Mr. MacFarlane’s and Ms. Ladele’s cases the employer’s policy “aimed to secure the rights of others which are also protected under the Convention”. It held that the UK was entitled to a wide margin of appreciation in reconciling clashing rights and their claims of a breach of the Convention was not made out.

This is surely correct. Discriminatory acts have a moral significance beyond the deprivation of the relevant service. No-one would say that Rosa Parks suffered no harm if there had been a second bus company in Montgomery Alabama that she could have used and which had no discriminatory seating arrangements. Neither would a registrar who regarded inter-racial marriage as sinful have received much support for a claim to be permitted not to register such unions. We rightly perceive that the dignity of individuals can be compromised by acts of discrimination even if they are not denied a particular service. It would have made a mockery of the idea of the margin of appreciation for the Court to have decreed that, in drawing up anti-discrimination norms, States are prevented from having regard this serious harm.

Moreover, one cannot selectively grant religious individuals exemptions from anti-discrimination norms while denying them to those whose conscience claims arise from non-religious sources. By invoking the margin of appreciation the Court avoided opening a pandora’s box and rightly left it to national legislators to resolve these delicate matters.

Resignation as a Guarantee of Religious Freedom

The judgement does signal a significant change is in relation to the right to adhere to one’s religious beliefs at work. In previous cases, the Strasbourg institutions indicated that where a clash between one’s religious duties and one’s the workplace duties arose, religious freedom was sufficiently protected by the right to resign and that work-related restrictions on religious practices (e.g, being required to work on the Sabbath), did not amount to an interference with religious freedom.

Perhaps influenced by high levels of unemployment in the current crisis, the Court appears to have changed its approach. It now feels that “the better approach would be to weigh [the possibility of changing job] in the overall balance when considering whether the restriction [of freedom of religion] was proportionate.” This brings the Court’s approach to freedom of religion in the workplace into line with its approach to the protection of rights such as privacy and free expression.

Although this new approach is more protective of the religious freedom of workers, it may not bring about enormous changes. EU law already requires Member States to justify any workplace arrangements that place those with a particular faith at a disadvantage including those that are generally applicable and apparently neutral. Moreover, the Court has shown a willingness to defer to the assessment of employers in relation to what the workplace actually requires. As noted above, it found that employers are entitled to require religious employees to abide by non-discrimination policies and in  case of Shirley Chaplin, it deferred to the assessment of her employers in relation to the infection and safety risks posed by her necklace noting “hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence”. Therefore, while the Court’s approach has changed, the overall impact may be limited.

Significance of Ms. Eweida’s Win

Media coverage has focused on the finding in favour of Ms. Eweida whose litigation in the UK courts generated significant attention. The Court found that her employer’s uniform policy pursued a legitimate aim, the desire to project a certain corporate image. However, in the light of various factors such as the fact that employees were allowed to wear symbols of other religions such as turbans and hijabs, the fact that the cross was discreet and the lack of evidence of impact on her employer’s reputation, the national courts had given “too much weight” to the employer’s interests. The Court also used the fact that British Airways had amended its policy to permit crosses to confirm that the restriction was disproportionate as this meant that “the earlier prohibition was not of crucial importance”.

Ms. Eweida’s victory does underscore the fact that the Court no longer sees the right to resign as sufficient protection for religious freedom. Its fact-specific nature means that it is difficult to draw wider conclusions. It is unclear, for instance, whether a more general ban on all religious symbols would have made it easier for the employer to justify their restriction. Joshua Rozenberg wrote that the judgement seems “convenient” for the Court. It does seem politically astute to find in favour of the applicant whose case has the fewest general implications and to invoke the margin of appreciation in relation to the other three.

That said, there are some worrying features of the facts in this ruling. Ms. Eweida initially accepted a duty to conceal her cross. When she changed her mind and launched a grievance procedure against her employer she did not wait for her complaint to be investigated but rather turned up for work in violation of its uniform policy. As the dissent of Judge Bratza (the British judge) noted, BA was rather accommodating towards her and offered her a role without direct customer contact and with no uniform requirement for the duration of the investigation of her complaint. Ms. Eweida refused this solution. Once BA had investigated her complaint, it changed the rules to allow her to wear her cross. It seems remarkable that such a sequence of events can be seen to have resulted in a violation The Court acknowledged in all four cases that employers are dealing with a delicate balancing of rights. In such circumstances do employers not have the right to some time to look into requests for modification of uniforms? Is it reasonable of the Court to use the fact that BA changed its uniform policy once it had considered the issue to find a violation from the fact that it did not change the policy before considering whether accommodation was compatible with its other goals?

Dissents in Ladele

It would be remiss not to note the extremely intemperate and disturbingly worded dissent of Judges Vucinic and De Gaetano who argued that the Court should have found in favour of Ms. Ladele. Interestingly, they distinguish freedom of conscience from the freedom to follow religious practices (such as diet clothing etc.) and argue that free conscience is not subject to limitations that Article 9(2) allows in relation to manifestation of religious belief.  Without explicitly saying so, they also base their approach on the idea that discrimination can do harm beyond deprivation of service.  It would have been useful for them to make this clearer but this is not the most notable failing in their dissent. More seriously, their judgement uses language that is notable for its intemperate nature and hostility to the very idea of gay equality. They describe the events leading to Ms. Ladele’s dismissal not as a difficult issue of clashing fundamental rights but as “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights)”. This is quite a shocking sentence from judges charged with interpreting Europe’s human rights charter. Gay rights are sufficiently alien to these judges that they feel the need to place the term in inverted commas. More importantly, gay rights are directly contrasted with what the judges call “fundamental human rights”. It is disturbing that the Strasbourg Court whose rulings have such a proud record in relation to ending the criminalization of homosexuality should contain judges who seem so hostile to the idea that the rights of gay people could be considered fundamental human rights.

Conclusion

These decisions herald significant change in the Court’s Article 9 jurisprudence. The idea that the right to resign sufficiently protects religious freedom in the workplace has been abandoned and in the future Strasbourg will require employers to show that policies that impinge on religious freedom are justified. The practical effect of this is likely to be limited as EU law already provided such a duty. The Court has affirmed that States have wide discretion in reconciling rights to freedom of conscience and religion on one hand and freedom from discrimination on the other. In doing so it has confirmed that States are entitled to take account of the moral significance of discrimination beyond deprivation of a good or service. Such an outcome was always likely. The reaction to the Chamber decision in Lautsi v Italy showed just how dangerous it can be for a European Court to weigh in on controversial matters of faith and identity. Rapid change in social mores means that what was recently the majority view on matters of gender and sexual orientation are now minority positions. Such rapid change was always likely to produce political controversy. It would have been most unwise for an international court such as Strasbourg to seek to impose a European level solution to such problems.

Ronan McCrea is a Lecturer in Law at University College London.  He acted as co-counsel for the National Secular Society in this case.

Suggested citation: R. McCrea, ‘Strasbourg Judgement in Eweida and Others v United Kingdom’ UK Const. L. Blog (16th January 2013) (available at http://ukconstitutionallaw.org)

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Massimo Fichera and Helen E. Hartnell: All you need is law: Same-sex marriage in Italian courts

Massimo-Fichera_avatar-105x105Helen-E.-Hartnell_avatar-105x105The Italian Corte di Cassazione (CdC) has delivered a judgment which marks a fundamental change of direction in the treatment of same-sex marriage in the Italian legal system.  Case 4184/12, decided on 15 March 2012, illustrates the piecemeal nature of legal developments affecting same-sex marriage, as well as the complex mix of issues that arise in this legal field.  Same-sex marriage bridges private and public law, and implicates family, free movement, and equality (non-discrimination) rights found in national, European and international sources.

To grasp the importance of the CdC’s ruling on family rights and non-discrimination, we must first clarify what this case does not decide by distinguishing it from two earlier Italian court decisions on same-sex marriage in the context of European Union (EU) citizenship and the free movement of persons under Directive 2004/58/EC (formerly 2004/38/EC) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens’ Directive).  That Directive is silent about whether the term ‘spouse’ includes a same-sex husband or wife.  Both prior Italian cases resolved this ambiguity in favor of same-sex couples.

The first case (Cass. Pen. sez. I n. 1328, 19 January 2011) concerned a non-EU citizen who was convicted by the Justice of Peace of Mestre for illegal entry and residence in Italy.  On appeal to the CdC (criminal section), he argued that his marriage celebrated in Spain with an EU citizen should entitle him to EU free movement rights, even when the marriage was between two men.  The CdC agreed in principle, and directed the Justice of Peace to ascertain whether Spanish legislation treats the same-sex partner as a “spouse” and, if so, to recognize the effects of the marriage in the Italian territory.  This was the first time the CdC admitted the possibility that same-sex marriage could have legal effects in Italy, albeit only in regard to immigration issues falling within the scope of the EU Citizens’ Directive.

The second case (Trib. di Reggio Emilia, sez. I civ., ord. 1401/2011, 13 February 2012) concerned a marriage in Spain between a Uruguayan and an Italian man.  When the couple later moved to Italy, the Uruguayan partner applied for a residence permit.  Here the Italian court explicitly ruled that limiting marriage to a man and a woman contravenes the interpretation of the term “spouse” found in the Citizens’ Directive, as well as of the rights to marry and to found a family mentioned in Article 9 of the Charter of Fundamental Rights (EU Charter).  The court clearly stated that once there is evidence that any marriage has been lawfully celebrated in an EU Member State, free movement rights both of the citizen and his/her family member ought to be guaranteed, regardless of the spouses’ national legislation.  But this case, like the CdC’s 2011 decision, only ensures rights under Italian immigration law.

The CdC’s March 2012 decision involves a fundamentally different fact pattern from those earlier cases, and its rationale invokes different legal sources.  This case involves two Italian men who went to Holland, married there, then returned home to Italy and asked the competent Italian authority in Latina to register their marriage.  The Italian authority refused to register the marriage, pursuant to a 2007 Ministry of Interior circular proscribing local authorities from registering same-sex marriages celebrated abroad on ordre public grounds.  On appeal, the Italian pair argued that this refusal violated their rights to marry and to have a family life, as well as the principles of non-discrimination and self-determination.  Their appeal was rejected by the Tribunal of Latina, the Court of Appeal in Rome, and the Corte di Cassazione.  However, the CdC’s decision breaks new ground, even though it does not go so far as to grant same-sex couples the right to marry or to have a foreign marriage registered in Italy.

Unlike the two earlier cases, this Italian same-sex couple’s goal was not limited to securing the handful of immigration rights guaranteed by the EU Citizens’ Directive.  Rather, these Italian men sought full civil recognition in the form of registration of their marriage, predicated on far-reaching rights claims.

This is not to say, however, that either the Italian couple or the CdC ignored EU law entirely in the March 2012 case.  On the contrary, the men argued that Italy’s failure to recognize the marriage they had concluded in another Member State impaired their rights — as EU citizens — to move freely within the EU per Article 21 (1) TFEU, and urged the Italian court to make a preliminary reference to the Court of Justice of the European Union (CJEU) seeking interpretation of Articles 9, 21, 51, 52, 53 and 54 of the EU Charter.  The CdC was not persuaded, however, and refused to refer any questions to the CJEU, pointing to decisions by the ItalianCorte Costituzionale (decision 138/2000 of 2010) and by the ECJ (C-299/95Kremzow; C-328/04 Vainaj; C-400/10 McB; C-256/11 Dereci) which emphasize that the EU Charter only applies to situations that fall within the scope of EU law.  On this issue, the CdC was firm:  the rights to marry and to found a family do not fall within the scope of EU law, since Article 9 of the EU Charter relegates these matters to national law.

The CdC next turned to the question whether there are still reasons, in modern Italian society, to consider same-sex marriage unlawful.  The CdC’s reasoning focuses on the tension between, on the one hand, the traditional concept of marriage, as derived from Roman law and enshrined in international instruments such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, and, on the other hand, recent trends towards giving full recognition to the legal effects of same-sex marriages.

The CdC’s decision draws upon — but ultimately surpasses — two 2010 rulings, one by the Italian Corte Costituzionale and the other by the European Court of Human Rights.  Both of those earlier decisions opened the door a crack towards civil recognition of same-sex marriage, but the courts ultimately hesitated to cross the threshold.  Instead, it was the Corte di Cassazione in March 2012 that stepped through the door, albeit cautiously.

In Decision 138/2012 (April 2010), the Italian Corte Costituzionale (CC) ruled that Articles 3, 29 and 2 of the Italian Constitution cannot be read to mean that the right to same-sex marriage has constitutional ranking in the Italian legal system.  Rather, the CC insisted that Article 29 embodies a “naturalistic” definition of marriage that presupposes gender diversity.  This interpretation was not inevitable, however, since the language of Article 29 is gender-neutral, defines “family” as a “natural society based on marriage”, and proclaims the “moral and legal equality of the spouses”.  In the end, despite acknowledging that the concepts of “marriage” and “family” ought to be interpreted in line with socio-cultural changes occurring over time, the CC shied away from a “creative” interpretation that would radically modify core concepts that had never been contemplated by the drafters, and declared the aim of procreation to be inherent in marriage and worthy of constitutional protection.  Yet despite its hesitation, the CC in 2010 took an important first step towards constitutionalising same-sex marriage in Italy by noting that Article 2 of the Constitution protects gay unions as “social groups” in which all people have the right to develop as individuals.

The decision of the European Court of Human Rights (ECtHR) in Schalk and Kopf v. Austria (June 2010) was more daring than the one reached by the Italian Corte Costituzionale, but the ECtHR also held back from the interpretive brink.  Reading Article 12 of the European Convention on Human Rights and Article 9 of the EU Charter together, the ECtHR stated that it no longer considered that the “right to marry … must in all circumstances be limited to marriage between two persons of the opposite sex.”  Still, the ECtHR was unwilling, given the lack of consensus in favor of same-sex marriage, to impose this interpretation on the Contracting States.  Thus in the end, the ECtHR’s conclusion was similar to that reached by the Corte Costituzionale, namely that the issue falls within the Member States’ margin of discretion, and it is up to their legislative organs to regulate the matter.

The March 2012 decision of the Corte di Cassazione (civil law section) moves a decisive step closer to full recognition of same-sex marriage.  While the CdC did not overturn the outcome of the case and allow the marriage to be registered, it did reject the lower court’s reasoning, which had denied registration on ordre publicgrounds.  Instead, the CdC refuses recognition for the technical reason that the marriage is unable to produce legal effects in the Italian legal system.  By doing so, the CdC departs from its previous stance that gender diversity was a prerequisite to a legally valid marriage.  The CdC also abandons as untenable the position that same-sex marriage is “non-existent”, in view of the fact that some countries now allow same-sex marriage.

Yet however important those steps may be, the real novelty of the CdC’s 2012 decision lies elsewhere.  The Corte di Cassazione states clearly that gay couples have a right to family life on the basis of the equality/non-discrimination provision in Article 3 of the Italian Constitution, which entails treating them on an equal footing with married couples, and that this right can be judicially protected, even absent any action by the legislature.  Thus, Case 4184/12 constitutes a major step in the evolution of the concept of family in the Italian legal system, even while falling short of a breakthrough constitutionalisation of same-sex marriage.

A more detailed analysis of the Italian developments, including comments on stirrings in the Italian legislature, is available here.

Massimo Fichera is a Post-Doctoral Fellow, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity Research, funded by the Academy of Finland.

Helen E. Hartnell is a Professor of Law, Golden Gate University School of Law (San Francisco) and Fulbright Core Scholar, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity (Fall 2012).

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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David Feldman: The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?

DFeldmanThe date set for publication of the report of the Commission on a Bill of Rights  approaches.  The Commission was established to consider whether the UK should have a Bill of Rights, and, if so, what it should contain and how it should relate to the Convention for the Protection of Human Rights and Fundamental Freedoms (or ECHR).  The spur for establishing the Commission was perplexity among some people at the ability of the European Court of Human Rights, an international tribunal, to make authoritative, binding judgments about the compatibility of UK legislation with rights under the ECHR.

People’s attention is thus distracted from the merits of issues, such as when prisoners should be deprived of their right to vote, towards procedural matters, such as whether the UK should be required to accept the assessment of a body with four suspicious characteristics: the judges are nearly all foreigners; the Court operates within a European organisation, the Council of Europe (albeit quite different from the EU, a fact which is often not understood); the judges are mistakenly thought to be unelected (untrue: they are elected by the Parliamentary Assembly of the Council of Europe, a body composed of parliamentarians from the 47 member states of the Council of Europe), and some of them have been—horror!—academics; and they are applying rules which have not been laid down by the Queen in Parliament.

Many of these matters have been incisively addressed by Colm O’Cinneide, Human Rights and the UK Constitution  (London: British Academy Policy Centre, 2012) and others (see for example Conor Gearty, ‘Strasbourg has spoken, the case of prisoner voting is closed’.   Here, I shall merely explain why the Court’s judgments bind the UK, and why this does not infringe the UK’s national sovereignty or the legislative supremacy of the Queen in Parliament.

The reason is simple: the Court decides because the UK (among other states) has instructed it to do so, not just once but on many occasions.

The ECHR is an international treaty between (now) 47 states.  The UK signed and ratified the original version over 60 years ago.  It therefore binds the UK in international law.  The UK did not immediately accept the jurisdiction of the Court (and originally the European Commission of Human Rights) over applications by individuals who complain that a state has violated their rights under the ECHR.  That was at first optional.  It was 1965 before a British government declared, under what was then Article 25 of the ECHR, that it would accept the jurisdiction of the Court in relation to individual complaints.  That carefully considered decision was temporary.  Successive UK governments had to decide whether to renew it, and did renew it, every five years until the 1990s.

At that point, a new treaty, Protocol No. 11 to the ECHR, thoroughly renovated the ECHR’s procedural rules.  When negotiating this treaty, the UK agreed with all the other states which were parties to the ECHR that states should all accept, permanently, the jurisdiction of the Court over cases brought against the states by individuals.  The UK’s government signed and ratified Protocol No. 11, which came into operation in 1998.  By virtue of that, the UK as a High Contracting Party voluntarily accepted what became Article 34 of the ECHR:

‘The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’

As a High Contracting Party to the ECHR, the UK also voluntarily accepted what are now Article 44, providing that a judgment of a Chamber of the Court becomes final after three months if not referred to the Grand Chamber (earlier if the respondent state indicates that it will not seek to refer the case to the Grand Chamber), and that judgments of the Grand Chamber are always final, and Article 46.1: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’

This makes four points clear.

First, the Court decides cases against the UK because the UK (among other High Contracting Parties) told it to do so.

Secondly, the Court’s judgments bind the UK in international law because the UK (together with other High Contracting Parties) decided that they should be binding.

Thirdly, this came about as a direct result of an exercise by the UK of its state sovereignty in international law.  It is no more (but no less) a limitation of that sovereignty than any other set of treaty obligations which the UK voluntarily assumes.

Fourthly, it has nothing to do with the legislative sovereignty of the Queen in Parliament.  That is a principle of national, constitutional law, which is of no interest to international law as long as it does not breach, or prevent the UK from meeting, its international legal obligations.  Treaty-making in the UK is a prerogative of the Crown, exercised by (typically) ministers.  They are accountable to Parliament for their actions, and sometimes an Act of Parliament may be needed in order to discharge the obligations which arise from treaties, but ministers’ authority to make treaties does not depend on parliament.  That is one reason why constitutional law in the UK does not allow treaty provisions to create rights or obligations in domestic law without legislation: see Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution 7th edn (Oxford: Oxford University Press, 2011), ch. 5.  By the same token, nothing contained in an Act of Parliament can affect the obligations which bind the UK in public international law.

David Feldman is Rouse Ball Professor of English Law, University of Cambridge, and a Fellow of Downing College, Cambridge

Suggested citation: D. Feldman, ‘The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?’ UK Const. L. Blog (7th December 2012)(available at http://ukconstitutionallaw.org).

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Filed under Human rights, International law, UK Parliament

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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George Letsas: Redfearn v UK: Even Racists Have the Right to Freedom of Thought

In a liberal democracy, everyone should be treated as an equal and everyone should have the right to freedom of thought. How can anyone disagree? Well, some do. Fascists, racists, bigots, sexists, religious fundamentalists, political extremists – just to name a few- endorse ideologies that are incompatible with the very values of equality and liberty that underlie human rights. These people believe in fewer or no rights for people of different race, religion, sex, sexual orientation or political opinion. They are the people who in the course of human history have often acted on these beliefs, inflicting terrible wrongs on women, Jews, Muslims, ethnic minorities, gays, immigrants, disabled people or communists. They are the reason why liberal democracies introduced anti-discrimination laws, seeking to protect the equal rights of unfavorable groups. They are the people whose expression is in many liberal democracies restricted by hate speech laws, not only for symbolic reasons but also to curb the spread of their bigotry before it materializes into wrongful action. So it is often said that a liberal democracy cannot treat everyone’s beliefs the same: it must reject ideas that are incompatible with its own values. It must show “intolerance towards intolerance”. It cannot be neutral all the way down. But does this mean that racists should have fewer legal rights than the rest of us?

Mr Arthur Redfearn is a white British bus driver who worked for Serco, a private company providing government services in Bradford, an area beset by racial tensions. Mr Redfearn’s job involved transporting people with mental disabilities, the majority of which were of Asian origin. The record of Mr Redfearn as an employee had been impeccable, with no complaints about his work or his conduct. Indeed, he was even nominated, by his British Asian supervisor, for the award of ‘first-class employee’. When a local newspaper identified him as a candidate for the British National Party (BNP), the public sector workers’ trade union (UNISON) expressed concern that his continued employment with Serco posed a significant risk to others: the BNP has an overtly racist ideology and Serco’s customer base, as well as its workforce, was of predominantly Asian origin. Serco on the other hand became concerned that employing publicly known BNP members will harm its reputation and possibly cost them the contract with the local authority. When Mr Redfearn was elected local councilor for the BNP, Serco decided to dismiss him summarily.

Did the dismissal violate Mr Redfearn’s human rights? UK courts never got to pronounce on this question. Under UK employment law, workers do not have a right against unfair dismissal unless they have been in the same job for 12 (now 24) consecutive months (the ‘qualifying period’). Since Mr Redfearn had been with Serco for only 6 months, he had no legal right to challenge the fairness of his dismissal except on some very limited grounds including discrimination because of religion, race or sex. And given that this was a dispute between private individuals, he could not directly invoke the Human Rights Act 1998 (HRA) as the legal basis for an action against his employer. Had he been entitled to challenge the fairness of his dismissal, he would have been able to invoke the HRA and ask the court to interpret what fairness in dismissal requires in the light of his human rights.

The case went to the European Court  as an article 11 ECHR case (freedom of association). Mr Redfearn submitted that the UK had a positive obligation to protect him from dismissal on the ground of his involvement with the BNP, even during the qualifying period. The Strasbourg Court found a violation of article 11 ECHR by the narrowest of margins (4 votes to 3). It held that the UK should either add political beliefs or affiliation to the existing prohibited grounds of discriminatory dismissal (race, sex and religion) during the qualifying period or, alternatively, create a self-standing claim for unlawful discrimination on the basis of one’s political beliefs or affiliation.

 The Court’s judgment should be welcomed as a prime example of what a consistent application of the liberal-egalitarian values underlying human rights demand. It is premised, in my view, on the following two principles: first, a state cannot prohibit discrimination on the ground of religious beliefs but allow discrimination on the ground of political beliefs. Second, beliefs whose content is incompatible with the values of the Convention (such as racism, fascism, sexism etc) are in principle as worthy of protection from discrimination as any other belief. These two principles are not new; they have been previously recognized, albeit not always consistently, by the Court.

Take the first principle. Article 9 ECHR, which protects the right to freedom of thought, protects not only religious beliefs but also any other belief, be it political, philosophical or otherwise. Strasbourg organs have examined under article 9 ECHR a number of complaints involving non-religious beliefs, such as pacifism (Arrowsmith v United Kingdom, 1978), scientology (Church of Scientology Moscow v. Russia, 2007) and veganism (W v United Kingdom, 1993). Though the Court dismissed Mr Redfearn’s complaint under article 9 ECHR, and preferred to examine it under article 11 ECHR, this should be seen as no more than a mere formality. Throughout the judgment the Court referred disjunctively to Mr Redfearn’s political ‘opinion’ or ‘affiliation’. Indeed, it would have made no difference to the Court’s reasoning if Mr Redfearn had been dismissed solely because he was a known BNP enthusiast or sympathizer, but not a formal member. He still would not have been able to challenge his dismissal under UK employment law. But he would have been able to do so if he had been dismissed because of his membership to a particular church or his religious beliefs. This differential treatment between religious beliefs and political opinion (or, if you like, between religious associations and political associations), emphasized by the Court in para 54 of its judgment, is arbitrary and goes against the very core of article 9 ECHR. This is why, contrary to what the dissenting judges (sir Nicholas Bratza, Hirvela and Nicolaou) argued, it is not within the states’ margin of appreciation which grounds of discrimination they may prohibit within employment. If states prohibit religious discrimination (which they arguable ought to) then the Convention requires that they must also prohibit discrimination on the basis of political opinion or association. 

Now consider the second principle that anti-egalitarian opinions (such as racism, fascism or sexism) are as worthy of protection from discrimination as any other opinion. This principle does not mean that we should protect wrongful actions that may be motivated by these despicable views, such as race crimes or other horrible abuses. It simply means that in a democratic society we should respect the right of people to have such thoughts and beliefs. We should not, in other words, be engaged in ‘thought control’, which is what states do when they condition the distribution of vital opportunities or benefits (such as employment) on having particular beliefs. People have a right to have any thoughts they like, including bad thoughts. It is a different issue altogether, falling outside the protective scope of the principle, when racists thugs act in a way that harms or otherwise wrongs some vulnerable group. But merely holding certain beliefs, absent harm or a clear and present risk of harm to others, is no reason to dismiss anyone, including BNP members. The distinction between thought and action is here crucial. This is why the Court, rightly, found the fact that Mr Redfearn was a BNP member irrelevant, repeating its known slogan that the Convention protects not only ideas that are received favorably or with indifference, but also ideas that ‘offend, shock or disturb’ (para 56). In this respect, the Court clearly moves away from the view, mentioned in Campbell and Cosans (1982)and repeated in the explanatory notes to the UK Equality Act 2010, that only beliefs compatible with human dignity are protected by the Convention. As far as freedom of thought goes, this view is not defensible.   

In its third-party intervention against the applicant, the Equality and Human Rights Commission argued that employing known BNP members impacts on the employer’s provision of services regardless of whether or not there are any complaints about the manner in which they do their job. It noted further that the justifiability of dismissing a BNP member could turn on a number of factors, including whether employing him undermines public trust and confidence or harms the employer’s reputation. These are all bad arguments: the mere fact that service users refuse to be served by workers who endorse a particular ideology is no reason to dismiss them. Nor is it relevant that the employer’s business interests will suffer as a result of this refusal. These are not legitimate bases for dismissing people. Just like the employer would be unjustified in firing a communist –or, for that matter, an HIV/AIDS- worker solely because clients do not want to be served by her or him, likewise it would be unjustified to fire BNP members, including those holding civil service jobs, solely because ethnic minorities do not want to be served by them. We shouldn’t, absent any evidence or real risk of wrongful conduct, deprive people of employment simply because they may entertain anti-democratic or inegalitarian thoughts. And in any case, the crucial issue raised in Redfearn v UK was that UK employment tribunals were barred in the first place from pronouncing on whether such dismissals are proportionate to the legitimate aim of preventing a clear and present risk of racial violence.

I should end with a comment on the impact this judgment might have on the Court’s approach to discrimination and religion in general. The Court is currently deliberating on four cases pending against the UK (Ladele, Chaplin, Eweida, Macfarlane) to do with religious discrimination and dismissal. They differ from Redfearn in that they involve indirect discrimination claims: the applicants were dismissed because they refused to comply with an imposed occupational requirement that interfered with their religious convictions (such as to officiate in gay marriages) or the right to manifest their religion (such as to wear a cross). Unlike Redfearn, these cases are not about illegitimate restrictions imposed on an employee solely because others, rightly or wrongly, condemn her opinions and refuse to be served by her. Rather, they are about whether employers have a duty to exempt religious employees from otherwise legitimate occupational requirements. Neither of the principles on which Redfearn was decided helps the applicants in the four pending cases. In fact, the opposite could be claimed: just like Mr Redfearn should have no right to be exempt from having to serve immigrants or ethnic minorities, as incompatible with his political convictions, likewise Christians should have no right to be exempt from having to officiate in gay marriages or to counsel gay couples.

All five cases will most likely end up before the Grand Chamber of the European Court of Human Rights. The Court should be steadfast in upholding the principles underlying Redfearn. In a democratic society, we must treat religious beliefs in the same way we treat any other belief and we must respect the right to have bad thoughts in the same way we respect the right to have any other thought. 

George Letsas is Reader in Philosophy of Law and Human Rights at University College London.

Suggested citation: G. Letsas, ‘Redfearn v UK: Even Racists Have the Right to Freedom of Thought’,  UK Const. L. Blog (13th November 2012) (available at http://ukconstitutionallaw.org)

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Helen Fenwick: What’s Wrong with s.2 of the Human Rights Act?

It’s rare for a section of an Act of Parliament to arouse as much ire as s2 does, or for it to be asked to play such divergent roles by various commentators.  S2 HRA provides that a court or tribunal ‘determining a question that has arisen in connection with a Convention right must take into account’ any relevant Strasbourg jurisprudence. So at face value the intention was that the judges could not ignore it, but did not need to follow it.  Further, the term ‘relevant’ implies that if there is no relevant jurisprudence, the court should determine the question re the right by other means.

But as is of course well known, the obligation to take the jurisprudence into account was rapidly transformed by the judiciary into an obligation akin to being bound by it if it was clear and constant, although as the President of the Supreme Court has said (in his oral submission to the JCHR, HC 873-ii, 15 November 2011, Answer to Question 64), that might have occurred in any event; if the words “take account of” had not been included the jurisprudence might have been given greater weight (Answer to Question 64). Some of the significant decisions will be mentioned, to indicate the stance being taken to s2. Lord Slynn in R (Alconbury)(at [26])found thatcourts should follow any clear and constant jurisprudence of the European Court of Human Rights (at [26]). In R (on the application of Ullah) v Special Adjudicator, in the context of s2, Lord Bingham followed that finding, on the basis that: “While [Strasbourg]…case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court (at [20]; his Lordship relied on the above para in Alconbury). In Manchester City Council v Pinnocka nine member panel of the UK Supreme Court unanimously accepted that the Strasbourg case law in question was ‘now… unambiguous and consistent’ and that it was therefore right for English law to follow it (see also Ambrose v Harris). In B and another v Secretary of State for Justice ([2012] 1 W.L.R. 2043, para 60) the principle that settled jurisprudence should be followed was reaffirmed, although Parliament’s intention that the legislation should be ECHR-compatible was also viewed as important

The Court in R (on the application of Quila) v SSHD, declined to follow the elderly Strasbourg case of Abdulaziz v UK, but on the basis that there was no ‘clear and consistent jurisprudence’ to follow (per Lord Wilson [43]). On the other hand, in R v Horncastle, in the context of Article 6, the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as s2 originally intended (see also R v Spear [2003] 1 AC 734). The Supreme Court decided that the European Court’s decision (Al-Khawaja) insufficiently appreciated or accommodated particular aspects of the domestic process, and determined that in those rare circumstances it could decline to follow the decision, as it did. The domestic provisions in question, the Court found, struck the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general; the Strasbourg test did not strike the right balance since it gave a higher value to Article 6 standards than those provisions did, and therefore was not applied. The UK at the time of Horncastle was appealing the Strasbourg decision in question to the Grand Chamber, and the result in the Grand Chamber (Al-Khawaja and Tahery v UK 15.12.11 (Applications nos. 26766/05 and 22228/06)) later largely vindicated the Supreme Court’s stance, an interesting instance of dialogue between the two in action.

Where there is no clear jurisprudence to follow or the Court has relegated, or is likely to relegate, a matter to the state’s margin of appreciation, the majority in the Supreme Court recently decided in Ambrose v Harristhatin such circumstances the intention behind s2 was not that the domestic court should outpace Strasbourg. Lord Hope, giving the leading judgment, said, “Lord Bingham’s point, (from Brown v Stott 2001 SC (PC) 43, 59 and from Ullah [2004] UKHL 26, [2004] 2 AC 323, para 20) with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation” (at [19]).

The roles s2 is expected to play

So what’s the problem with the interpretation that has been imposed on s2 and what should it be doing? Various divergent opinions have been offered in 2011 and 2012 from politicians and judges. According to Dominic Grieve (European Convention on Human Rights – current challenges 24.10.11, at Lincoln’s Inn, London) it’s in effect a rogue section; it’s out of control, a section gone mad. It needs to be drastically reined in, not just returned to its original conception since it has gone far too far in allowing Strasbourg decisions to re-shape domestic law. But among supporters of the HRA, there is a polarisation of opinion, between those who want the section to be used as it was originally intended – the “take into account only” group and in the opposing camp the “mirror principle” group. The mirror metaphor is often used to indicate that s2 requires the domestic courts to ‘mirror’ Strasbourg’s approach – to adopt the approach Strasbourg has adopted and to hold back if it has not spoken on an issue, since its approach cannot be mirrored.

But this question and the terms used require further elaboration. This blog will identify 3 models. Adhering to the first (‘anti-mirror principle’) model are HRA-supporters who want the judges to depart from Strasbourg where there are good reasons to do so, such as that basis of the domestic law in question (such as balancing the rights of suspects and of victims) have not been fully appreciated by Strasbourg. Obviously the position is not that the Strasbourg jurisprudence, if relevant, potentially dispositive, clear, consistent, should just be ignored; it must be taken into account, but clearly that suggests that it need not be followed. Those in this camp also want the domestic judges, since under this model they are not anchored to Strasbourg, to ‘outpace’ its jurisprudence – which tends to mean according an extended ambit to a Convention right even where Strasbourg has not yet spoken, or not spoken clearly as to such extension. Members of that camp include the original architect of the HRA, Lord Irvine as he indicated in a recent lecture (“A British Interpretation of Convention Rights” [2012] P.L. April 237) Lord Hoffman, and most academics writing on the subject (see for example Francesca Klug and Helen Wildbore).

Adhering to the second (‘partial or semi-mirror principle’) model are those who consider that the domestic courts’ judgments should sometimes outpace Strasbourg, but if Strasbourg has spoken, they should normally follow suit; departure should be entirely exceptional. Baroness Hale, speaking extra-judicially, appears to place herself in that camp (an address, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ delivered on 1.12.11 as the Human Rights Law Centre Annual Lecture 2011, University of Nottingham), and her judgment in Re G (below) in particular adopts that stance. At the risk of a gross over-simplification it is suggested that most academics and some judges, but mainly – not always – speaking extra-judicially, are in the first or second camps. For example, Lord Kerr in the recent Ambrose judgment adopted the second position.

Supporters of the third (‘full mirror principle’) model consider that the domestic courts’ judgments should not outpace Strasbourg and should mirror those where Strasbourg has spoken, with exceptional departure. The third camp appears to include the President of the Supreme Court (Answer to Question 67) and most of the senior judges, according to their judgments (in particular the well-known comment of Lord Rodger in AF(No3), ‘Strasbourg has spoken, the case is closed’) as indicated in the cases mentioned above. Sir Phillip Sales recently articulated this position extra-judicially. Some, such as Lord Hoffman in particular, have been at times very reluctant members of this camp, as he made clear in AF (no 3).

What are the merits of the three models? They will be considered in relation to the two key questions to which s2 gives rise, as follows.

Should the Supreme Court go beyond Strasbourg?

Members of the first camp would obviously say yes. So would members of the second – when there is no clear and constant jurisprudence to follow. Both camps on this point find that the judges need not be curtailed by the particular point Strasbourg has reached, or by the operation of the margin of appreciation doctrine, in striking out on their own in a determination to create expansive interpretations of Convention rights (see eg Masterman), and in the process creating a more exciting, creative and imaginative domestic human rights’ jurisprudence.

At first glance it might appear that such creativity is in practice only likely to arise in the less politically difficult areas of human rights’ law. Where has it occurred post-HRA? Various examples come to mind. In the cases of Re G and of Campbell the House of Lords gave a more expansive interpretation to Article 8 than Strasbourg at the point in question had done. But Re G concerned the question whether an unmarried couple should be subjected to an absolute bar to adoption in favour of married couples (in the case in question the adoption of the mother’s own child as part of an unmarried couple). Campbell of course concerned the question whether Article 8 ECHR applied via s6 HRA to a private body which had invaded the privacy of Naomi Campbell. In Campbell the Lords, broadly speaking, answered yes, to the question posed, but domestic and Strasbourg case-law was nearly at the point of recognising that that should be the case, at the time, in any event. In Re G the House of Lords found unsurprisingly that Ireland was discriminating on grounds of marital status in relation to Art 8 – due to an absolute ban on adoption by unmarried couples – even though no Strasbourg decision had clearly established that marital status was a protected ground of discrimination under Art 14. That was relatively uncontroversial since Northern Ireland was clearly out of line with the rest of the UK. Neither decision was in a highly sensitive area of executive decision-making.

On the other hand, a decision in such an area, countering the argument that domestic judges are over-deferential in such areas, is R (Limbuela) v Secretary of State for the Home Department. The same can be said of EM (Lebanon) which has certainly attracted strong censure from Grieve, and its effects, according to the current Home Secretary, are to be reined in via legislation on family immigration. A and others also arguably falls into the category of judgments that have out-paced Strasbourg as regards the reasoning on the deogation, and of course it cannot be seen as a decision outside the politically difficult areas.

A member of the third camp might counter by relying on the various decisions in which Strasbourg has had to ‘correct’the House of Lords or Supreme Court, in furtherance of an argument that the judges should be anchored to Strasbourg via s2 because on the whole Strasbourg shows a greater determination to hold the executive to account.Gillan v UK departed from the interpretation of Article 8 adopted in R (on the application of Gillan) v Commissioner of Police for the Metropolis 2006 UKHL 122006 UKHL 122006 UKHL 12. A v UK upheld a higher due process standard than the previous House of Lords’ decision in Secretary of State for the Home Department v MB ([2008] AC 440) had done in relation to Article 6. A v UK was then absorbed directly into domestic law via ss2 and 3 HRA in AF No3 ([2009] UKHL 28). In R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of the South Yorkshire Police the claimants sought judicial review of the retention by the police of their fingerprints and DNA samples on the grounds inter alia that the practice was incompatible with article 8 of the European Convention on Human Rights. The majority of the House of Lords held that the retention did not constitute an interference with the claimants’ article 8 rights, but they unanimously held that any interference was justified under article 8(2). The ECtHR disagreed: S and Marper v United Kingdom. Similarly, the Strasbourg judgment in the Qatada case (Othman v UK (2012) 55 EHRR 1) departed from the House of Lords’ findings (in RB (Algeria) and OO (Jordan) v SSHD in which it was found that Qatada could be deported)as regards Article 6, taking a more expansive view of the Article 6 requirements.

But those decisions might support adherence to the second model – ie partial acceptance of the mirror principle as in AF, but don’t fully support its acceptance in a context where Strasbourg has not yet spoken. It should also be pointed out that reliance on the third model tends to preclude a dialogic stance – ie dialogue between the domestic courts and Parliament is stifled, and between the domestic courts and the Strasbourg Court. For example, Lord Neuberger said in Manchester City Council v Pinnock that following all Strasbourg decisions ‘would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law’ ([2010] 3 WLR 1441 at [48]). Although judgments on this model contain some potential dialogic elements (see Ambrose v Harris [2011] 1 W.L.R. 2435; Lord Kerr’s dissenting judgment could potentially influence Strasbourg (see para 60). See also Sir Phillip Sales ‘Strasbourg jurisprudence and the Human Rights Act: a response to Lord Irvine’ P.L. 2012, Apr, 253 at 264), it is harder for any dialogue in any real sense to occur.

Should the Supreme Court follow clear and constant Strasbourg jurisprudence even where it disagrees with it?

The second and third camps would clearly say yes, with some exceptions, while reiterating that judges are not bound by Strasbourg. In other words, domestic judges should follow the mirror principle in trying to resolve the issues in a case before them in order to ‘Strasbourg-proof’ the case: if the applicant would probably win at Strasbourg they should win domestically. Baroness Hale has said on this: ‘it is more a question of respect for the balances recently struck by the legislature than a question of the extent of our powers. One reason for this is that an aggrieved complainant can always go to Strasbourg if she disagrees with our assessment, but the United Kingdom cannot’ (Human Rights Law Review (2012) 12 (1): 65-78 at 72). That would appear to avoid the institutional imbalance that might otherwise occur. But that argument does not take account of the fact that governments have methods open to them which victims do not, to seek to influence the interpretation and application of the ECHR, via the European institutions. For example, the UK’s Chairmanship of the Council of Europe allowed it at Brighton in 2012 to seek to increase the margin of appreciation member states enjoy.

Overall it does not appear that the senior judges espouse the mirror principle out of a conviction that the Strasbourg jurisprudence is of superior quality to their own. Sale argues that rule of law principles of certainty and predictability support the principle, which of course does not mean judges simply follow Strasbourg in all circumstances. But his position could be attacked on the basis that the Strasbourg jurisprudence is not always of high enough quality to satisfy such principles.

The idea that the interpretation of the ECHR should be uniform throughout the member states supports the stance of the second and third camps in answer to this question. But it does not support that of the third in relation to refusing to out-pace Strasbourg, since inevitably uniformity cannot be achieved at the point in question. Acceptance of the full or partial mirror principle might also appear to mean that Article 46 ECHR, binding states to accept Strasbourg decisions, is satisfied. But Art 46 is directed to states and does not necessarily mean that the judges have the responsibility for ensuring that Strasbourg rulings are implemented.

The first camp would obviously say no to the question posed. But clearly, that model must encompass acceptance that a ruling clearly or probably contrary to clear and constant Strasbourg jurisprudence might well lead to a successful application to Strasbourg, which would mean that the HRA had failed to achieve its aim of avoiding delay, leaving human rights’ breaches to subsist for significant periods. The eventual Strasbourg ruling could be reacted to by the executive; s10 HRA includes provision to do so.  In other words, a trialogue between the judges, Strasbourg and the executive could occur. But for, at best, a significant period of time that would be of little value to the applicant, and those in his or her position.

The first camp could however point to other disadvantages of the use of the mirror approach in relation to clear Strasbourg jurisprudence. It creates an idea of alien European human rights’ standards being imposed by a distant court on the UK, and allows the domestic judges to displace responsibility for challenging the government onto Strasbourg. Strasbourg is already in a difficult position, partly due to its immense case-load and back-log of cases, and so is vulnerable to attack and a certain amount of reining in.  The Conservative government had a go at such reining in, no doubt partly as a result of the A v UK and Qatada judgments, recently, at Brighton at the high level conference in 2012 on the future of the Court. The declaration that emerged, originally intended from the Conservative perspective to create enhanced subsidiarity, was not on the whole radical (although of course the devil will be in the details to be worked out).  But it is arguable that the Court has recently shown a tendency, perhaps in anticipation of what might occur at Brighton and what might occur in future, to seek to appease member states, and Britain in particular, by less confrontational judgments (eg HamzaBabar Ahmed and others v UK (App nos 2402/07, 11949/08, 36742/08, 66811/09 and 67354/09) and also recent refusal (25.9.12) of leave to appeal to the Grand Chamber).

Pragmatically, it could be argued that placing a stronger emphasis on the ability of domestic judges to depart from Strasbourg could be part of a project of saving the HRA. Or if that is viewed as over-stating the position – of maintaining the idea that the HRA was never intended to disturb Parliamentary sovereignty. It is fairly clear why it is the case that de-emphasising s2’s current ability to place curbs on Parliament’s decisions might to an extent neuter objections to the HRA. Those objections, mainly from Conservatives, largely rest on anger at its ability to facilitate European interference with Parliament’s decisions.

Emphasising the dialogic opportunities that exist – creating in Baroness Hale’s words  ‘an even more lively dialogue with Strasbourg in future’ (Human Rights Law Review (2012) 12 (1): 65-78 at 78) – could be viewed as part of that project or, more positively, of demonstrating that a new Bill of Rights is unnecessary.  It is reasonably clear that if instead the judges merely implement a Strasbourg judgment, as in the most obvious example – AF No3, such a dialogue is not promoted. As Lord Irvine said in his lecture: ‘A Court which subordinates itself to follow another’s rulings cannot enter into a dialogue with its superior in any meaningful sense’. Such subordination tends to mean that the domestic judges remain outside any process of development of a European jurisprudence to which they contribute a fresh voice.

Conclusions

Objections to departure from Strasbourg where it has spoken appear far less strong than objections to outpacing Strasbourg where it has not, or where its voice is unclear. So it is important to disentangle the two approaches – as under the second model. Clearly, one consequence if the judges were to move towards this position, and away from Ambrose, is that while HRA-sceptics favour a return to s2’s original conception in relation to instances in which Strasbourg has spoken, they are hardly likely to welcome furtherance of the other aim of the anti-mirror principle camp where it has not – to develop a vibrant domestic human rights’ jurisprudence. Such a development would probably only hasten the repeal of the HRA, if a Conservative government was elected in 2015.

The second camp might usefully consider what ‘out-pacing’ or ‘going beyond’ Strasbourg means, and whether that terminology is helpful. It is usually assumed that it means giving an expansive interpretation to a Convention right, where Strasbourg has not yet accepted that interpretation, as in Re G. But it might also mean adopting a ‘balancing’ approach that Strasbourg might not accept, as occurred in effect in A v UK as compared to MB. On the other hand, that approach may already be taking root at Strasbourg (Al-Khawaja and Tahery v UK Applications nos. 26766/05 and 22228/06) appears to indicate such a tendency, as does Austin v UKand the Hamza case – above). I have previously suggested on this blog that Strasbourg shows signs more recently of acquiescence in such an approach. That could be viewed as an appeasement approach, emerging in part via dialogue with the UK courts.

As a final thought – arguably, the words “take account of” in s2 should go – they create a fig-leaf for the judges to hide behind since they create an impression they don’t fulfil. If s2 was repealed, and nothing was said in the HRA about the stance that should be taken to the Strasbourg jurisprudence, it’s quite probable that the current interpretations of s2 would barely change: but its repeal would say to the Supreme Court – we want you to sort this out, in detail in a suitable case – to enumerate the types of situation in which departure from Strasbourg should occur. Alternatively, and a better solution in theory – Parliament could deal with this by amendment to s2 instead of ducking it as it did in the first place.

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

 

Suggested citation: H. Fenwick, ‘What’s Wrong With S.2 of the Human Rights Act? ’   UK Const. L. Blog (9th October 2012) (available at http://ukconstitutionallaw.org

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Colm O’Cinneide: Prisoners Votes (Again) and the ‘Constitutional Illegitimacy’ of the ECHR

The relationship between the UK and the European Court of Human Rights is once again in the news. On the 22th May last, the Grand Chamber of the Strasbourg Court delivered its judgment in Scoppola v. Italy (No. 3), Application No. 126/05. This decision marks a potentially decisive moment in the long-running saga of prisoner voting rights. In essence, the Grand Chamber reaffirmed its ruling in Hirst v UK (No. 2) that a blanket and indiscriminate prohibition on prisoners voting was not in conformity with Article 3 of the First Protocol (the right to free elections). However, it also recognised that states enjoyed a wide margin of discretion when it came to regulating the circumstances in which prisoners should be entitled to vote. In particular, ‘Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’, as long as they refrain from imposing ‘any general, automatic and indiscriminate restriction’ (see para. 102 of the judgment).

In other words, the Hirst decision has been upheld, but the UK has been given room to manoeuvre in how it responds to this requirement. However, the UK government must bring forward legislative proposals to amend the existing blanket ban within six months. If it does not, then in accordance with the Court’s ’pilot’ judgment in Greens and M.T. v UK, the 2500 pending cases before the Court on this issue will be ‘unfrozen’, which in turn may expose the UK to multiple claims for damages.

The judgment in Scoppola has been excellently analysed in depth by a number of commentators: see in particular Adam Wagner’s posting on the UK Human Rights Law blog, Carl Gardner’s analysis at Head of Legal and Marko Milanovic’s comment on the judgment on the EJIL: Talk blog. As Joshua Rozenberg has argued, the Court has effectively extended an olive branch to the UK government, which it might be wise to accept. However, the judgment has also attracted the usual media outrage, as examined by ObiterJ on Law and Lawyers, with the Daily Mail describing the decision as representing ’Contempt for Democracy’. The Prime Minister has stated at Question Time in the House of Commons that the will of Parliament should prevail over the views of the Strasbourg Court on this issue (H. C. Debs. 23 May 2012, col. 1127), while Jack Straw and David Davis have in a letter to the Daily Telegraph called on Parliament to defy Strasbourg.

It appears therefore as if no easy resolution to the stand-off on prisoner voting rights between the Court and the UK is yet in sight. It has been just over one month since the Brighton Declaration, where as Mark Elliott has discussed on this blog the UK joined the other state parties to the ECHR in affirming the crucial role played by the Strasbourg Court in protecting human rights and rule of law across Europe and committed itself to respecting judgments of the Court. (See in particular paragraph 3 of the Declaration, which states in unambiguous language that [w]here the Court finds a violation, the State Parties must abide by the final judgment of the Court’.) The UK government thus appears to have got itself into a tangled mess. Its words and deeds in respect of the ECHR appear to be getting dangerously out of synch. Even if legislation amending the blanket ban on prisoner voting is laid before Parliament within the six month time-limit imposed by the Court, the Prime Minister’s comments will certainly have fortified parliamentary opposition to making any concessions on this issue. As things stand, the UK is still locked on a collision course with Strasbourg, unless a dramatic political change of direction takes place.

Much of the hostility directed towards the Strasbourg Court is based on a visceral distaste of giving prisoners voting rights. Famously, even contemplating this idea appears to make the Prime Minister nauseous. Given the quasi-sacred status accorded to the idea of universal franchise within the UK constitutional order (the doctrine of parliamentary sovereignty is now justified on the basis that the House of Commons is elected by popular vote), it is perhaps odd that Strasbourg’s mild request for amendment of the blanket disenfranchisement imposed on prisoners has attracted such a backlash. However, the rights and wrongs of this issue have been discussed before on this blog by Jeff King.

What has not been discussed in detail here or elsewhere is the argument made by Jack Straw MP, David Davis MP, Michael Pinto-Duschinsky, Dominic Raab MP and others that the Strasbourg Court is acting in a constitutionally illegitimate manner in insisting on a repeal of the blanket ban on prisoners voting, and that it would be a violation of democratic principles for the UK to defer to the decision of an unelected international court on such a manner. This argument drives much of the opposition to the Court’s rulings in this context. It also explains why David Davis and Jack Straw in their above-mentioned letter to the Telegraph have described these judgments as infringing ‘our constitutional rights’. It even underscores the call by Pinto-Duschinsky, Raab and others for the UK to consider withdrawing from the jurisdiction of the Court and/or from the Convention, which they argue would be a necessary and justified step if the Court fails to mend its ways and exercise greater self-restraint.

This argument that it is ‘constitutionally illegitimate’ for Strasbourg to rule against the UK on the blanket ban on prisoners voting is based on two distinct but inter-related elements. First of all, it assumes that the European Court of Human Rights has gone beyond the legitimate scope of its authority by treating the Convention as a ‘living instrument’ and adopting a teleological interpretative approach to its provisions. In its eyes of its critics, the original drafters of the Convention never intended it to be read in this way: as a result, the Court is abusing its authority when in a decision such as Hirst it interprets the right to free elections in Article 3 of the First Protocol as extending to cover the right to vote. Secondly, the assumption is also made that it is contrary for democratic principles for the UK to bind itself to follow the determinations of an unelected body such as the Strasbourg Court. However, both these assumptions are open to challenge.

To begin with, the argument that the Court is going beyond its mandate is open to question. As Danny Nicol has argued, the travaux préparatoires of the ECHR make it clear that there was no consensus among the original negotiators that it should be read in a narrow and minimalist manner (‘Original Intent and the European Convention on Human Rights’ (2005) Public Law 152-17). Furthermore, international treaty instruments such as the Convention are usually expected to be interpreted in a purposive manner, not by reference to the original intent of their drafters. In their letter to the Telegraph, Davis and Straw state that the job of the Court ‘is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less’, and go on to say that the Vienna Convention on the Law of Treaties requires that ‘international treaties must be interpreted as their drafters intended’. However, this appears to be a straightforwardly incorrect interpretation of international law. The provisions of the Vienna Convention are notoriously vague: however, Articles 31 and 32 make it clear that courts should focus on the ‘object and purpose’ of treaties, and that the intention of the drafters can only ever be taken into account in a ‘supplementary’ manner. The ‘living instrument’ approach adopted by Strasbourg is very similar to that adopted by other human rights bodies, as well as by constitutional and supreme courts in Europe and across the Commonwealth. Of course, views will differ on whether the Court got it wrong when it decided Hirst, Greens and Scoppola. However, it is by no means obvious that its overall interpretative approach is ‘illegitimate’.

Secondly, the argument that it is undemocratic for the UK to defer to decisions of the Strasbourg Court can also be challenged. The UK consented to the jurisdiction of the Court and voluntarily undertook to abide by its decisions. This would appear to be completely compatible in principle with the principle of democratic self-governance and national sovereignty: as Jeremy Waldron has commented, ‘[p]art of the point of being a sovereign is that you take on obligations’. Furthermore, as previously noted, Parliament is under no constitutional obligation to give effect to a Strasbourg judgment: it can choose to disregard any judgment of the Court, or even to withdraw from the Convention, at any time. If it does so, the UK may experience strong diplomatic pressure to change its mind from other states. Its international credibility may also be fatally undermined by a refusal to respect a judgment of the Court, as this would call into question its commitment to the principles of human rights and rule of law which it consistently demands that other states respect. However, Parliament, not Strasbourg, retains the final say.

This means that the current relationship between the UK and the Strasbourg Court would seem to be entirely compatible with democratic principles. The fact that the UK faces considerable pressure to comply with Hirst, Greens and Scoppola does not mean that the Court’s role under the Convention is illegitimate or anti-democratic: it simply reflects the fact that the expectation that Parliament should respect international law, human rights and the rule of law may at times require it to exercise its powers differently from how it would if left to its own devices. If anything, the Strasbourg Court could be seen as playing a positive role in enhancing British democracy: as Richard Bellamy (no lover of judicial supremacy) has argued, it helps to protect the rights of those who do not enjoy effective access to Parliament and the political process. It also helps to link democracy in the UK to democratic progress elsewhere, and makes possible a convergence of standards which elevates rights protection, democracy and the rule of law across the Council of Europe zone as a whole.

None of these objections constitute a full and complete answer to the Court’s critics. Neither do they establish a complete case as to why Parliament should defer to the Court’s views on prisoner voting. Opinions will inevitably differ as to when Strasbourg has crossed the line between law and politics, or when it has made a questionable decision. However, the claim that the Court’s position on prisoner voting rights is ‘constitutionally illegitimate’ seems to be seriously open to debate.

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

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Carol Harlow: Surveillance and the Superstate

For a society as devoted to secrets and privacy as the British are traditionally supposed to be, however, the law possesses surprisingly few protections for the communications of its citizens. True, phone hacking has become a criminal offence under the Regulation of Investigatory Powers Act 2000 and the creation and retention of citizens’ data is now regulated by the Data Protection Act 1998 but there is no right of privacy per se at common law and resort is consequently to a haphazard and fragmentary set of common law rights of action, which protect person, property and dignity in limited situations [See Lord Bingham, ‘Tort and Human Rights’ in P Cane and J Stapleton (eds), The Law of Obligations (Clarendon Press, 1998)].

Government (a.k.a the Crown) has by way of contrast traditionally been highly privileged, benefiting from the existence of a set of wide and loosely defined prerogative powers in the area of security and defence. There has never been a constitutional ‘right to know’ and access to official information was until recently narrowly restricted by draconian Official Secrets Acts, which made it an offence for any Crown servant or agent or anyone in receipt of information from a Crown servant or agent to disclose such information without authority. Although toned down by the Official Secrets Act 1989, which restricts the categories of protected information, the underlying ethos, that information in the possession of government is its private property, has not been dispelled by the first freedom of information legislation, which came into force only in 2005 and is riddled with so many exemptions as to merit the label of ‘sheep in wolf’s clothing’ bestowed on it by Rodney Austin [‘The Freedom of information Act 2000: a sheep in wolf’s clothing?’ in J Jowell and D Oliver (eds), The Changing Constitution (Oxford University Press, 5th edn, 2004)].

In the last two decades, the relationship between state and citizen in the area of information has been complicated by the rapid evolution of information technology, globalization of communications and the multi-level nature of regulation. Many counter-terrorism measures involving surveillance emanate, for example, from the United Nations, while the European Union is starting to play a significant role in access to information and data protection. On the one hand, ICT has facilitated the accumulation and retention in government data banks of vast quantities of information, relevant and irrelevant, about its citizens. Concern over the uses to which such information would be put fuelled opposition to proposals – ultimately defeated – from Tony Blair’s government for citizen identity cards. On the other hand, easy access to the internet and rapid communication via mobile telephones, Skype, social networking sites, twittering and tweeting have worked to the benefit of citizens and rendered government control harder. This point was poignantly illustrated during the ‘Arab Spring’.

Concern, evidenced in the campaign against identity cards, has been growing at national level, over the growing use of modern technology to extend surveillance by public authorities – the proliferation of CCT cameras for crime prevention, centralized and systematic police monitoring of cameras used for traffic control for other purposes, and CCT use by the private sector, where it is barely controlled. The courts have shown themselves relatively unwilling to restrict the use of modern surveillance techniques. In Wood v MPC [2009] EWCA Civ 414, for example, the Court of Appeal rejected a claim that the filming of participants in a trouble-free demonstration and subsequent retention of the photographs was unlawful and amounted to a violation by the police of ECHR Article 8, ruling instead that the practice was a justifiable and proportionate measure for the prevention of crime. After the London riots in 2011, the Metropolitan police pressurized broadcasters to hand over videos and pictures they had taken, threatening a court production order under PACE. The press protested vigorously at the threat to freedom of speech (The Guardian 30 August 2011) but the issue remains unresolved. Similar protests met government proposals – not yet fully particularised – to extend rights of access by public authorities to electronic communications between citizens, stimulating a vigorous political response from the junior partners in the coalition government, (BBC News, 10 April 2012).

Strasbourg, interception and data protection

The interception of communications has brought the United Kingdom up against the Strasbourg Court of Human Rights on several occasions. Indeed, of the long line of cases marks the interest of the Strasbourg Court in interception of communications, data protection and surveillance, several involve the United Kingdom [ECtHR, Factsheet on data protection 2012].  In Malone v United Kingdom (1984) 7 EHRR 14, the issue was telephone tapping by the police, which came to light during Malone’s trial for handling stolen goods. When Malone sought a declaration that the practice was unlawful [Malone v. Commissioner of Police of the Metropolis (No. 2) [1979] 2 All ER 620] Megarry J. ruled (i) that the common law recognised no right of privacy on which to found an action (ii) that no actionable tort had been committed and (iii) that a claim based on Article 8 of the ECHR, which specifically protects the privacy of correspondence, must fail because the ECHR was not (at that time) directly applicable in domestic law. In reaching these conclusions, the judge remarked, however, that he found it ‘impossible to see how English law could be said to satisfy the requirements of the Convention’ and that ‘the subject cried out for legislation’. This did not prevent the British Government from arguing in Strasbourg both that the practice of requiring ministerial authorisation for all telephone tapping was sufficient to satisfy the Convention requirement that interceptions must be ‘in accordance with the law’; and also that the practice of ‘metering’ or recording dialled numbers and the time and duration of calls, fell outside the Convention right. The Government lost on both heads and the Interception of Communications Act 1985 followed.

This legislation is now taken up in the Regulation of Investigatory Powers Act 2000. RIPA’s objectives are wide: it provides for ‘the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed’ for purposes of national security or investigation of serious crime by the security services and police. A warrant signed by the Home Secretary is required. RIPA also regulates ‘metering’; it requires records to be kept and made accessible on ministerial request of dialled numbers etc. A monitor in the shape of an Interception of Communications Commissioner is provided. More controversially, RIPA permits a wide range of government agencies, including the Charity Commissioners, Financial Services Authority and local authorities to indulge in similar activities, albeit in limited circumstances. Largely on these grounds, it has been widely criticised as a ‘snoopers’ charter’.

Marginal restrictions on the powers of local authorities are contained in the Protection of Freedoms Bill, currently before Parliament. Unsurprisingly, however, the Home Secretary (Theresa May) did not seize the opportunity afforded by the Bill seriously to curtail the snooping activities of public authorities. Instead, proposals to include in the next Queen’s Speech extensions to RIPA’s ambit have been announced to cover more modern forms of communication, including internet-based email, twittering and tweeting, Blackberries, Skype, mobile phone texting, social networking sites like Facebook and even online games. Proposed new legislation would, it is believed, force internet companies to install hardware enabling GCHQ on behalf of government to examine websites accessed and text messages or email sent. The proposals will in short allow police and intelligence officers to monitor a person’s contacts including websites, although the content of communications will not be accessed. Once again, the records will be available to local councils and other agencies, though in limited circumstances.

In S and Marper v. the United Kingdom [2008] ECHR 1581,  the Court ruled on the taking and retention of DNA samples from persons suspected of criminal offences but subsequently acquitted. There is an implicit reproof to the House of Lords, which had ruled to the contrary in R(LS and Marper) v Chief Constable of Yorkshire [2004] UKHL 39, in the ruling that

the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences… fails to strike a fair balance between the competing public and private interests and that… the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

Necessary changes to bring the law into line with the Strasbourg judgment are also contained in the Protection of Freedoms Bill.

Enter the European Union

But data processing, retention and protection are no longer a purely domestic matter. They are the subject of a major new initiative under the direction of EU Commissioner, Viviane Reding. This is both a necessary and welcome development in view of the vast data banks that have been built up in the EU from material contributed by member states and often widely accessible to member state authorities and officials. Until the Lisbon Treaty came into force, winding up the ‘Third Pillar’ and bringing justice and home affairs into the ambit of the Community, this was a dark and windowless area of EU law and policy. In the Community pillar, some of the sketchy and piecemeal regulation, such as the Telecommunications Data Protection Directive (Council Directive 97/66 of 15 December 1997) or Data Retention Directive (Directive 2006/24/EC of 15 March 2006), had shown a capacity to bite. In Case C-518/07 Commission v Germany [2010] ECR I-1885, for example, the Commission successfully brought Germany before the Court of Justice because its domestic data supervisory authority was insufficiently independent. But Directive 95/46 on data protection, the generally applicable legislation, contains exceptions in Article 13, which authorises Member States to restrict the scope of the rights and obligations provided in the Directive when ‘such a restriction constitutes a necessary measure to safeguard national security, defence and public security’. Similar exceptions apply to the prevention, investigation, detection and prosecution of criminal offences. The consequence was policy-making marked by a serious democratic deficit and information shortfall, culminating in the highly suspect Prüm Convention, which provided for the establishment of DNA profile databases and allows access to partner countries’ fingerprint databases, which the other contracting parties will be able to check on request not only for the purpose of preventing terrorist attacks and serious criminal activity but also in case of political demonstrations and ‘other mass events’. Similarly controversial was the agreement with the United States on the transfer of passenger name record data (PRN), successfully attacked in the Court of Justice Case C-301/06 Ireland v Council and European Parliament (10 February 2009), but now the subject of a new agreement foisted on a not-entirely willing Parliament (see http://www.statewatch.org/pnrobservatory.htm).

Coupled with the EU Charter of Fundamental Freedoms, the Lisbon Treaty (TFEU Article 16) provides a new basis for, and mandates, EU lawmaking, from which the European Parliament can no longer be excluded. A proposal from the Commission for a legislative text would provide a Europe-wide framework for data protection. This would have a major impact on private generators of electronic data, which would in future have to prove either consent of the data subject to retention or that retention was necessary. A second proposal  for a directive covers processing of personal data by law enforcement authorities for purposes of crime prevention, investigation, etc. and ‘the free movement of such data’.  The Commission is also reviewing the Data Retention Directive, which requires companies to store communication traffic data for a period of between six months and two years. In fact, some member states and notably Sweden have already implemented this measure.

The European Data Supervisor has, however, expressed ‘serious disappointment’ with the provisions in the law enforcement area [Opinion of the European Data Protection Supervisor on the data protection reform package]. While welcoming the fact that the directive would cover domestic processing, he regrets that the level of data protection in this area would not be increased:

The main weakness of the package as a whole is that it does not remedy the lack of comprehensiveness of the EU data protection rules. It leaves many EU data protection instruments unaffected such as the data protection rules for the EU institutions and bodies, but also all specific instruments adopted in the area of police and judicial cooperation in criminal matters. [para. 443, emphasis mine]

The UK Information Commissioner has expressed similar views. He sees the Commission proposals as less ambitious than the current UK Data Protection Act and hopes that ‘the provisions will be strengthened as negotiations progress’. Clearly, we cannot rely on the European Union to halt the march towards a surveillance state.

Carol Harlow is Emeritus Professor of Law at the London School of Economics

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Mark Elliott: The Brighton Declaration: where now for the Human Rights Act and the Bill of Rights debate?

The Brighton Declaration, which emerged from last week’s High Level Conference on the Future of the European Court of Human Rights, has already attracted a substantial amount of comment—including by Noreen O’Meara on this Blog and Ed Bates on the UK Human Rights Blog. In this post, I revisit some of the arguments I made earlier this year, in the light of a draft of the Declaration that was leaked in February, concerning the possible implications of the Brighton process for the effectiveness of the Human Rights Act 1998 (HRA) and the debate about a UK bill of rights. In this piece, I argue that the final version of the Brighton Declaration—viewed from the perspective of the UK’s domestic human rights regime—is less drastic. I go on to suggest that the Brighton process has therefore failed to carve out any significant latitude that might have been exploited by those proponents of a UK bill of rights whose agenda essentially reduces to the weakening of judicial protection of human rights.

The February draft

In my post on the February draft of the Brighton Declaration, I suggested that the relative potency of the HRA is attributable to two key considerations. First, while the Act leaves the legal doctrine of parliamentary sovereignty undisturbed, the Act reduces Parliament’s political capacity to exploit that doctrine by legislating in breach of fundamental rights; this the Act achieves by enabling courts publicly to condemn ECHR-inconsistent legislation via the issue of a declaration of incompatibility. Second, the HRA permits international law to disrupt the national legal and political processes by ascribing a notably high profile at the domestic level to the UK’s obligations under the European Convention on Human Rights (ECHR).

The February draft of the Declaration would, if implemented, have substantially weakened the HRA system. By diminishing (in ways outlined below) the role of the European Court of Human Rights (ECtHR) as the ultimate judicial authority capable of policing compliance with the ECHR, the Convention would have become a less concrete legal constraint upon the UK. This, in turn, would have undermined the legal weight of domestic courts’ judgments under the HRA, because it would have been open to the government—to a far greater extent than before—to argue that such judgments might not reflect the Strasbourg Court’s view, safe in the knowledge that the Court, had the February draft been adopted, would have been less likely to have an opportunity to render a decisive judgment on the relevant matter.

What, then, of the final version of the Brighton Declaration? Is the scenario sketched above—a dystopian one for the human rights enthusiast; quite the reverse for the sceptic—likely to eventuate? The answer to that question is “no”, because the final version of the Declaration differs significantly from the February draft in three presently-relevant respects.

“Deference” at the Strasbourg level: subsidiarity and the margin of appreciation

First, the February draft set great store by the notion of subsidiarity and the doctrine of margin of appreciation. The same is true of the final version of the Declaration: but the emphasis is rather different. In the latter version, subsidiarity remains a “fundamental principle”, and reasons of “transparency and accessibility” are still said to call for explicit reference to it—but in the Preamble to the Convention as opposed to the Convention itself. An instrument to amend the Preamble, such that it refers explicitly to subsidiarity—and to the margin of appreciation—is thus to be adopted by the end of 2013. However, the February draft’s characterization of the margin of appreciation as “considerable” is nowhere to be found in the final version of the Declaration. And whereas the February draft said that the Strasbourg Court’s role was to “ensure that [national authorities’ decisions] are within the margin of appreciation”, the final Draft holds that the Court’s task is to determine whether such decisions “are compatible with the Convention, having due regard to the State’s margin of appreciation”. This implies a more marginal, albeit not unimportant, role for the margin of appreciation doctrine: in the final Draft, it is a factor to which the Court ought to have regard when deciding whether a breach of the Convention has occurred, rather than (as in the February draft) the key factor which frames the question (“Has the margin been exceeded?”) lying at the core of the Court’s adjudicative function.

These aspects of the February and final versions of the Declaration, like the differences between them, are relatively subtle—but they are certainly indicative of the State parties’ consensus view of the nature of the ECHR regime and of the Strasbourg Court’s place within it. Understood thus, the final Declaration postulates a more significant and central role for the Court than the February draft, and signals that the desire of the UK (and, no doubt, certain other States) to substantially limit the role of the ECtHR has ultimately yielded little. Of course, that conclusion can only be provisional, in that the wording of the revised Premable—and so the nature of the newly explicit textual references to subsidiarity and the margin of appreciation—remain to be seen. It is highly unlikely, however, that the revised Preamble will invest those notions with content that breathes new life into the more radical approach envisaged in the February draft. The upshot, then, is that in cases that reach the Court, its approach is unlikely to be significantly different as a result of the Declaration and the revised Preamble.

A caveat should, however, be entered. While the Brighton process may, viewed from a particular perspective, have “failed”, some aspects of the vision revealed in the February draft could conceivably be realized in other ways. Indeed, it is possible that the mere floating of the more far-reaching ideas contained in the February draft (and associated posturing) may have been influential—for example, by inviting what Helen Fenwick has called an “appeasement approach” on the part of the ECtHR. So, while the final text of the Brighton Declaration does not clip Strasbourg’s wings in the rather direct and unsubtle ways envisaged in the February draft, the possibility cannot be discounted of the (voluntary) adoption by the ECtHR of a more limited—more “deferential”, in domestic parlance—approach. The Declaration necessarily now forms part of the backdrop against which the Court will seek to understand the proper extent of its role, as in due course will the explicit references to subsidiarity and margin of appreciation that are to feature in the revised Preamble. The latter doctrine is traditionally understood as a function of Strasbourg’s political and cultural dislocation from individual States parties—and thus as recognition on its part of the limits of its institutional competence. In contrast, while the notion of subsidiarity remains ill-defined in this context, it arguably reflects something of the concerns which, at the domestic level, coalesce around the notion of the judicature’s limited constitutional competence. In other words, “subsidiarity” may very well not be a synonym for “margin of appreciation”, and its express inclusion in the Preamble will, at the least, invite fresh reflection upon the proper extent of the Court’s role.

Pending the text of the revised Preamble—and its absorption into the Court’s jurisprudence—further speculation is unwarranted. It suffices to say that while the final version of the Declaration places rather less weight on subsidiarity and margin of appreciation than the February draft, it nevertheless accords them a newly formal prominence. But even if, in the future, greater “deference” is exhibited by Strasbourg, important questions remain about the nature of such deference: in particular, does it invite the ascription of weight, or respect, to the views of domestic courts or to those of national political institutions? If the former, then this might do little to appease State governments troubled by what they perceive to be excessively interventionist domestic courts—and little to diminish the existing capacity of sufficiently interventionist UK courts to uphold fundamental rights in the face of more sceptical political branches.

Advisory jurisdiction: legal and political constitutionalism

Second, the February draft sought to change the means by which some cases reach the Court in the first place, by providing for “advisory opinions” on “point[s] of interpretation”. As I argued in my previous post, this approach, if implemented, could have blunted the ECHR as a legal constraint (at least in relation to States that accepted the envisaged optional protocol). This was so because, according to the February text, when a non-binding advisory opinion had been rendered, the right of individual petition would ordinarily have been displaced, meaning that the Strasbourg Court would effectively be denied the opportunity to render a judgment that would be legally binding under Article 46. But here, too, the final version of the Declaration adopts a more subtle approach. In particular, there is no reference to the notion contained in the February draft that the application by a national court of an advisory opinion should normally preclude the subsequent exercise by the person concerned of the right of individual petition (and hence the prospect of a binding judgment adverse to the State party concerned). Granted, the final Declaration does not rule out this possibility—but the removal from the text of any explicit reference to it, coupled with the characterization of the right of individual petition as the “cornerstone” of the Convention regime, suggests that there is no consensus in favour of limiting that right in the way proposed by the February text.

So even if the envisaged draft optional protocol on advisory opinions—which the Declaration invites the Committee of Ministers to produce by the end of 2013—were adopted, this would not in itself erode the Court’s capacity to render non-advisory judgments that would be binding upon States in the normal way. Viewed from the perspective of the UK’s HRA system, this means (inter alia) that the possibility (which the February draft would have opened up) no longer arises of the UK government disputing a domestic declaration of incompatibility on the ground that Strasbourg might not actually have found national law incompatible with the Convention had the matter reached it other than under the advisory route: use of the advisory route will not now close off the possibility of individual petition.  This, in turn, preserves the capacity of the ECtHR to inject legal force into a national human rights regime that remains ultimately wedded—in the sense that it acknowledges the authority of the UK Parliament to transgress Convention norms as a matter of strict domestic law—to the tradition of political constitutionalism.

Admissibility: the relationship between domestic courts and Strasbourg

Third, the February text proposed that Article 35 be amended “to make clear that” an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”, unless the national court has “seriously erred” or the case raises a “serious question” concerning the interpretation or application of the Convention rights.

The relevant part of the final version of the Declaration differs in three key respects. First, no amendment to Article 35 is contemplated; rather, the Court is “encourage[d] to have regard to the need to take a strict and consistent approach” in this sphere, “clarifying its case law … as necessary”. Second, the final version affirms that an application should be regarded as manifestly ill-founded to the extent that it raises a complaint that has been “duly considered” by a national court “applying” the Convention in the light of “well-established” ECtHR case law—a formulation that draws the category of prima facie inadmissible applications more narrowly than the February text. Third, there is no reference to national courts having “seriously erred” as a trigger for treating as admissible an application relating to a matter already considered at the domestic level.

While the latter feature of the final Declaration appears to make it more restrictive than the February draft (in that a potential trigger is omitted), the broader message is clearly that consideration of a matter at the national level will less readily exempt it from consideration in Strasbourg. Against that background, a “serious error” trigger would be as unnecessary as it would be misleading—the point being that the final version of the Declaration rightly envisages a role for the ECtHR which transcends putting right domestic courts that have “seriously erred” in their application of the Convention.

The Human Rights Act

All of this suggests that the Brighton Declaration’s implication for the UK’s domestic human rights regime are decidedly modest. Nothing in the final version of the Declaration—in contrast to the February draft—significantly diminishes the effectiveness of the HRA as a real constraint upon not only administrative and other legislative bodies but the UK Parliament itself. Ostensible fidelity to the orthodoxy of parliamentary sovereignty notwithstanding, the HRA domesticates the Convention norms that bind the UK under international law in a manner that renders largely theoretical the possibility of lawfully transgressing them as a matter of domestic law. As noted at the outset of this post—and in more detail in my previous post on this topic—the HRA achieves this by puncturing both the dualist distinction between domestic and international law and the Diceyan division between legal and political modes of constitutionalism.

But as a model that is necessarily grafted onto the ECHR, the HRA’s success is ultimately contingent upon the nature of the Convention scheme to which it gives effect at the national level. The February draft of the Brighton Declaration would have altered that scheme significantly: by diminishing the role of the Strasbourg Court, it would have reduced the juridical bite of what appears at first glance (given the absence of any strike-down power) to be an ultimately supine domestic human rights system. Such a characterization of the UK system is, of course, wide of the mark. But that is, in large part, precisely because behind a British judicature lacking constitutional authority to invalidate rights-incompatible legislation stands an international tribunal willing and able to render judgments that are binding upon the UK as a matter of international law. And, importantly, such judgments are likely anticipated by national judicial decisions under the HRA that Parliament is free to ignore only when the matter is viewed through the parochial lens of purely domestic legal theory. By avoiding the substantial curbs upon the ECtHR’s role contemplated by the February draft, the final version of the Brighton Declaration thus preserves the essential characteristics of the Convention regime that underpin the HRA’s potency.

The bill of rights debate

Finally, what of the debate concerning a UK bill of rights? In a post on this Blog published in 2011, I observed that the terms of reference of the Commission on a UK Bill of Rights reveal a curious paradox. Much of the political rhetoric preceding the establishment of the Commission anticipated that a Bill of Rights would enable, or require, British courts to strike a different balance between individual rights and conflicting public interests—perhaps in order to head-off further bouts of Prime Ministerial nausea such as that which was induced by the prospect of permitting some prisoners to vote. Yet, thanks no doubt to the constraints of coalition, the Commission is in fact required to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties”.

An obvious tension arises between, on the one hand, a Bill of  Rights Commission committed through its terms of reference to an ECHR-plus (or at least not an ECHR-minus) model and, on the other hand, politicians’ promises that a UK bill of rights would “mak[e] sure decisions are made in this Parliament rather than in the courts”. One way of resolving that tension, of course, would be to adjust the obligations deriving from the ECHR in the first place, so as to render it (from a pejorative perspective) less of a straightjacket. Brighton was the government’s attempt to do precisely that: not by explicitly amending the provisions defining the Convention rights, but by loosening Strasbourg’s grip on policing their interpretation and application. Doing so, it was presumably anticipated, would in turn have rendered domestic courts’ human rights judgments more contestable, as it would follow with less certainty than at present that Strasbourg would concretely endorse them—whether because the case would never reach the ECtHR (owing to narrower admissibility criteria), or because it would render only a non-binding advisory opinion, or because a generous margin of appreciation (or doctrine of subsidiary) would cause it to stay its hand. However, for the reasons set out above, these objectives are not actually realized by the Brighton Declaration.

The result is that the Brighton process has not created the sort of latitude that might have been exploited by those in favour of a bill of rights that takes a looser form than the HRA: it does not offer an escape route from the constraints which derive from the realpolitik of coalition and the Bill of Rights Commission’s resulting terms of reference. Political rhetoric that (perhaps paradoxically) postulates a bill of rights as a vehicle for creeping dejuridification and the elevation of the interests of the “law-abiding majority” is therefore—at least for the time being—as empty as it is misleading.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge.

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