Tag Archives: Human Rights Commission

David Mead: Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education

davidmeadFloundering for an angle as a member of a panel looking at the way forward after the Bill of Rights Commission report (organised by the Human Rights Centre at Durham), I latched onto issues relating to effective protection and promoting a positive human rights culture. This post is on one aspect of that, something that must surely be at the heart of any sensible state strategy for delivering and promoting human rights: civic education and engagement. More specifically, I was interested in finding out about “Citizenship” lessons within secondary schools – with a personal interest as well. My son is in his first year at secondary school (Year 7) and my daughter will join him in September. Like many, I imagine, I knew of “Citizenship” classes  – that it was, or felt sure it was, part of the curriculum for 11-16 year olds… yet one year in, I was also fairly sure I had never seen any “Citizenship” homework nor even seen it feature on my son’s delightfully multi-coloured fortnightly planner. So, I set to work. This post is the result of some of those investigations.

Chapter 10 of the Commission’s report  “Promoting a better understanding of the UK’s obligations” is, at just over two pages, its shortest chapter. This is slightly strange given one key factor behind the majority’s call for a British Bill of Rights is the perceived lack of ownership. Of about 3000 or so responses to both consultations (of which about 1800 were postcard replies from two human rights NGOs), fewer than 20 made submissions specifically about that aspect of the Commission’s terms of reference, though about 100 more made similar calls for better public education to correct misperceptions about the HRA and the ECHR. More than half of these advocated more educational programmes, both for UK society generally and schoolchildren, and in a number of cases argued the need for access to sources of accurate, unbiased information to balance what they believed to be the myths surrounding the HRA. In that light, the Commission’s conclusion here represents a wholesale failure to address the issue at all – even if one raised only by a minority of respondents.

 We consider that the major contribution which we can make to this aspect of our terms of reference is our report itself, together with its annexes and the detailed responses to our consultations, which are available on the Commission’s website. In drafting the report we have been conscious of the need to make it as accessible as possible. We hope that anyone reading the report, who is not already expert in the subject matter which it covers, will at the very least gain a better understanding of the historical background and of the issues and arguments that give rise to a wide range of different views today.

The notion that the state has some sort of ongoing positive obligation to educate its citizens about the rights they are entitled to, to inculcate a sense of ownership and to instil the values of that state’s bill of rights is the Commission’s dog that didn’t bark. On the basis that there will be no change in this area at least, what can we expect our fellow citizens to know about how their rights are protected in the UK as a result of their formal education?

Citizenship was introduced into the secondary school curriculum in 1990. It became a formal statutory foundation subject in England in 2002, following the report of the Citizenship Advisory Group (the Crick report) in 1998, driven forward by David Blunkett when he was Secretary of State. In the remainder of the UK, “citizenship” remains a non-statutory subject (in Scotland, this applies to the whole curriculum, not just citizenship) and is generally not taught as a separate topic. The UK was one of the last western democracies to include “citizenship”, or something similar, in the formal curriculum (Spain was later, in 2006). By way of contrast, there have been elements of citizenship in the Lebanese curriculum since 1946 – albeit on differently constructed notions of “citizenship”.

In England, at key stage 3 (11-14) it is a foundation subject, along with all the others; for key stage 4 (14-16 or GCSE) it is foundation, alongside only ICT and PE – with maths, English and science as core – meaning there is a statutory programme of study up to school-leaving age at 16. To that extent it seems better positioned than say modern foreign languages (MFL) or humanities where schools need only offer one of e.g. history or geography. It is said to be the fastest growing GCSE subject, with some 100,000 estimated annually to have take it in the last couple of years. The secondary curriculum in England (i.e. both KS3 and KS4), revised after five years of operation in 2007 and with a planned revision – alongside all GCSE and secondary subjects from 2014 onwards – identifies three key substantive concepts: democracy & justice; identity & diversity; and rights & responsibilities. There is an interesting longitudinal study 2001-2010 on the effects of citizenship education conducted by the National Foundation for Educational Research available here indicating inter alia that political participation and likely future participation increase with age for those who have taken or studied citizenship.

In the remainder of this post, I will explore some concerns with how citizenship is taught – largely in England – focusing on the extent to which it provides pupils with a framework for understanding how rights are protected in the UK. Knowing that it has been a compulsory topic in secondary schools all the time I have been teaching Public Law to 1st years, it has always been a source of bewilderment why so few students had any idea of the Human Rights Act. What follows might explain to other puzzled Public Law lecturers why that is the case. Of course, one immediate problem is that Citizenship is a required subject only at maintained, state schools. Academies are not bound by the national curriculum – that is one of their USPs to potential parents and possible teachers – and so as they proliferate, we will likely see fewer pupils leaving school at 16 with any understanding of their human rights.

First, although conferring on it foundation subject status at KS3 had all-party support, the difference between citizenship and say geography, history, music or art – on which it is on ostensibly even terms – is that only citizenship was introduced with a “light touch”. The curriculum provides, at best, a framework; there is no minimum weekly contact requirement, as there is for PE. Evidence is that very few have a dedicated hour per week; most schools seem either to “drip” it into other subjects such as Personal, Social and Health Education (PSHE), as at my son’s school (or in RE where this week he has been looking at the UDHR), or to provide concentrated “enrichment days” once or twice per term. In Scotland, by contrast, (with its eight curriculum areas), citizenship – or more accurately global citizenship – is avowedly cross-curricular, so there is a clear and concerted objective, led from the top, that elements of it infiltrate the whole curriculum. That does not seem to be the case in England. There is little or no sense in which pupils understand they are being taught “citizenship”; it does not feature as a named topic on my son’s timetable and nor is there anyone on the staff who is named as the contact, and his most recent school report made no mention of anything even approaching it, and this at a state secondary school rated “outstanding” by OFSTED in its last two inspections. My very small sample of friends’ children at different state schools and friends who are state schoolteachers told a very similar tale. One – just about to embark on GCSEs – said “no, never heard of it”, despite the fact (see above) it is one of very few foundation requirements, and another thought they’d done something about voting in PSHE. As with all subjects, provision is patchy but at least those taking geography know they’re studying geography – and, broadly, most of us know what that involves:  ox bow lakes and Cornish tin mining unless matters have moved on progressively since 1981! “Citizenship” is not only a fairly indeterminate title but when mixed with sex education and basic financial literacy, it seems fairly likely the immediacy and relevance of a domestic bill of rights – to the life of an ordinary 14 year old – is a little lost, or relegated.

Resources are limited, scarce even. Those I have spoken to at the Association for Teaching Citizenship report that only somewhere between 200-250 teachers undertake PCGE or similar training in Citizenship in any one year (and on specialist provision of courses, see OFSTED “Professional Development for Citizenship Teachers and Leaders”, 2009). That’s out of about 26,000 in total on PGCE courses, though admittedly that figure is for both secondary and primary school. In most, certainly many schools, teaching is likely to fall on those perceived to have the closest connection to the subject (at best) – those with politics degrees or who teach politics at GCSE – and (at worst) on those who take other subjects with low take-up, and who need hours to be filled. For those teachers keen to devise lessons – perhaps just to find out what the topic embraces, it having been landed on them in June for the next September – and looking for external support, there is remarkably little on the discrete area of British human rights. “Right here, right now” is a 2009 collaboration between Amnesty and the BIHR and the DCFS and MoJ – and for KS3 only, i.e. 11-14 year olds – but that is basically the limit. The materials at The Citizenship Foundation, partly funded by the Law Society and partly by the Cabinet Office’s Office for Civil Society (part of the Big Society idea), has little of relevance to the study of human rights under the HRA. There is, for example, on its website a useful short guide entitled “HUMAN RIGHTS ImpACT” but it dates from 1998, as the HRA was making its way through Parliament. There has been very little direct government support, financial or otherwise, since the financial crash of 2008 when – I was told – the Ministry of Justice School’s team was dismantled. A search (on 17th June) for any publications using the term “citizenship” on www.gov.uk against the MoJ produced no hits whatever. Neither do any of the various organisations within the Ministry of Justice indicate anything even vaguely connected with education or schools, let alone citizenship – despite its responsibility at a political level for almost the whole of what the curriculum covers.

This contributes to a third problem: the skew of materials, and teaching, is towards international human rights. The gap in resources has been filled by groups such as Amnesty; the evidence I have seen is that sessions on child soldiers, child labour, international humanitarian law or on terrorism – as examples of human rights “in action” tend to proliferate. The first two of course are understandable, given the likely sympathies and empathies that secondary school pupils would have. The last really does amplify the risk of normalising exceptionalism at the cost of the commonplace. What it means is that a 14 year old in Hackney is more likely to know about international norms and standards during wartime – even if not in those terms – and UN-inspired provisions than they are about civil and political rights generated closer to home and of more obvious everyday resonance. This gap is even more evident outside England. In Wales, there is no separate subject of Citizenship – many of its elements are subsumed within Personal and Social Education, not part of the national curriculum but within the school curriculum. The framework or guidance on PSE for 7 – 19 year olds makes not one mention of the HRA for KS 3 and KS4. The scope of rights is limited to the UN Convention on the Rights of the Child and on the Universal Declaration. In Scotland, the curriculum is organised around four “capacities” – including responsible citizenship – and citizenship is cross-curricular but, again, there is nothing on domestic or European human rights, or the HRA, bar a single page on the wider topic of political literacy.

The last concern is in many ways the most worrying of all, that of the content – and the misunderstandings it positively engenders and reinforces. The explanatory notes accompanying the current KS4 curriculum, when referring to human rights, assert that “students should explore the roles of the United Nations and the European Union in securing human rights”. There seems little hope of avoiding the “all European together” assemblage, whether deliberately constructed or not by The Daily Mail, if teachers – and then their students – are not taught the difference between the different types of Europe. It became clear, during the consultation just ended, that Citizenship was not going to be downgraded within the curriculum – it will retain its compulsory status. This was met with relief by teachers’ groups. However, for those interested in citizenship as a means of embedding a rights-respecting culture and of laying the bedrock for promoting a better understanding of the issues stand to be disappointed. After its implementation in 2014, if the consultation portends anything (see National Curriculum Framework pp.149 available here), there will be a clear shift away from the concept of “rights”. The draft curriculum upholds the “democracy & justice” strand but seems to eliminate entirely the idea of (human) rights. The draft sets out the purpose of a high quality citizenship education as being

to provide pupils with knowledge, skills and understanding to prepare them to play a full and active part in society. In particular, citizenship education should foster pupils’ keen awareness of how the United Kingdom is governed and how its laws are made and upheld. It should also prepare pupils to take their place in society as responsible citizens by providing them with the skills and knowledge to manage their money well and make sound financial decisions.

Furthermore, they should be taught about “the precious liberties enjoyed by the citizens of the United Kingdom”. The very rejection of any notion of positive rights, obligations owed by the state – and needing justification for any intrusion – might be seen as laying the ground for a reversion to common law Diceyan residualism That would dovetail with where we came in, the future of a British Bill of Rights. If Citizenship teaching is anything to go by, we should be very wary about what might happen when, in Mark Elliott’s words, the Commission’s report does, eventually, leave the political long grass.

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

Suggested citation: D. Mead ‘Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education’  UK Const. L. Blog (18th June 2013) (available at http://ukconstitutionallaw.org)

3 Comments

Filed under Human rights

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

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

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

The majority proposal of a new Bill of Rights

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

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

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

A polarised Report

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

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

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

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

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

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

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

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

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

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

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

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

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

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

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

Changes to the listed rights?

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

 

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

2 Comments

Filed under Human rights

Ryan Goss: What is the Bill of Rights Commission’s ‘strong argument’?

GossThis week’s report from the Commission on a Bill of Rights was entitled ‘The Choice Before Us’. In framing that choice, a majority of the Commission concluded that, ‘on balance, there is a strong argument in favour of a UK Bill of Rights’. In this post, I explore and test that ‘strong argument’ as it is developed in the Commission’s report. I ask whether the argument developed in the report is as strong as the majority might like us to believe.

The report does not articulate its ‘strong argument’ in a particularly pithy way  (perhaps this is a result of the fractured nature of the Commission’s report – there are minority views on particular points as well as separately-explained-but-concurring majority opinions, and a series of additional opinion papers). Instead, a series of constituent sub-arguments appear to form the central ‘strong argument’ spoken of by the majority. It is to these sub-arguments that I turn. In doing so I draw on the Overview and the substantive section of the report.

The majority begin by noting that ‘the other 46 signatory states to the European Convention on Human Rights generally have their own written constitution, their own national bill of rights written in their own words or both’. This observation, the majority states, would only be ‘a piece of academic curiosity, if there were widespread public acceptance of the legitimacy of our current human rights structures’. At this point we might pause briefly to wonder whether the Commission inquired into the levels of ‘widespread public acceptance’ of human rights structures in the other 46 states (the lengthy comparative sections in Chapter 5 certainly give no detailed consideration to levels of ‘public acceptance’ in other comparable jurisdictions). Without such consideration, the Commission’s sub-argument in this regard risks confusing the existence of national bills of rights with the widespread public acceptance of those bills of rights.

The report develops its concern about public acceptance by holding that ‘there is a lack of public understanding and “ownership” of the Human Rights Act’ and of the European Convention on Human Rights. The ownership argument appears to be twofold. First, the majority report concludes that there is a lack of understanding about the current human rights arrangements. Second, there is the suggestion that the current arrangements are ‘widely regarded by the public as “foreign” or European’.

Some might think that concerns about ‘lack of understanding’ and ‘regard’ could be addressed by improving understanding about existing arrangements rather than by far-reaching constitutional reform. Not the majority. Those members of the commission found it ‘hard to persuade themselves that public perceptions are likely to change in any substantial way as a result [of better public education and understanding], particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media’.

Instead of education, therefore, the majority issues a carefully-caveated call for a new British Bill of Rights incorporating and building ‘on all of the UK’s obligations under the European Convention on Human Rights’. Here we must pause again to consider the Commission’s logic: the problem, as identified by the Commission, is poisoned public understanding in a politicised and polemical environment. The Commission does not think a public education campaign about the existing system can overcome such politicisation, but is nonetheless apparently confident that ‘some commentators and some sections of the media’ will restrain their polemicism when it comes to a new structure built on and incorporating the old structure. A triumph of hope over experience?

Naturally the notion of a Bill of Rights built on and incorporating existing rights leaves plenty of room for ambiguity. The Commission, for example, suggests that a Bill of Rights might ‘define more clearly the scope of some rights and adjust the balance between different rights’. One wonders if such definition and adjustment could easily be done consistently with the UK’s obligations in Strasbourg. We might also wonder whether the apparent concerns about ‘Europeanness’ and ‘foreignness’ would truly be addressed by a new structure built on and incorporating the existing relationship with Strasbourg. (The separate opinion of Lord Faulks QC and Jonathan Fisher QC develops the sceptics’ arguments).

The majority also suggests that, while any Bill of Rights ‘should have at its core the rights currently in the European Convention’, the language of the Bill need not be ‘identical’ to that of the Convention. Instead, the Bill of Rights could be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’. If the Commission is right and the public discourse is so politicised and polemical that the public cannot be educated about the existing system, we might wonder about the extent to which the public can be educated about the details of the language of a proposed Bill of Rights. Moreover, it is admirably optimistic for any group of lawyers to argue that two differently-drafted sets of rights could be practically identical in effect. Either the two sets of rights are different, in which case the UK risks placing itself in contravention of the UK’s obligations in Strasbourg (which may or may not be a problem, but is something which must be honestly confronted), or the two sets of rights are identical, and the British people would be being sold the same old rights in different clothing (one might wonder what the ‘polemical’ commentators and media analysts might make of such a manoeuvre).

The Commission is careful to identify reasons to proceed slowly and respectfully of existing constitutional arrangements. But if there is indeed ‘a choice before us’, the future of human rights protection in the UK deserves open and honest discussion of the alternatives, and the arguments for and against major constitutional change. Unfortunately, as the Commission itself notes seemingly without irony, ‘it is not always easy to disentangle…what are tactical positions rather than fundamental beliefs’.

There may be an argument made in the majority’s report. But is it a strong argument?

 

Ryan Goss is a Junior Research Fellow in Law, Lincoln College, Oxford

Suggested citation: R. Goss, ‘What is the Bill of Rights Commission’s ‘strong argument’?’   UK Const. L. Blog (20th December 2012) (available at http://ukconstitutionallaw.org,

1 Comment

Filed under Constitutional reform, Human rights

Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

a_ocinneideThe Commission on a Bill of Rights has reported. As expected, its members did not reach agreement on a common set of conclusions. Seven of the nine commissioners took the view that there were ‘strong arguments in favour of a UK Bill of Rights’, on the basis that it would represent a ‘fresh beginning’ and provide a way of  side-stepping the  ‘highly polarised debate’ that now surrounds the HRA. In their view, such a Bill of Rights should provide ‘no less protection than is contained in the Human Rights Act’, and be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’ in order to attract  ‘greater public ownership’ and popular legitimacy than the HRA currently enjoys. However, two commissioners, Baroness Kennedy QC and Philippe Sands QC, disagree: in their view, the majority have failed to identify any real shortcomings in the functioning of the HRA, the case for introducing a new Bill of Rights has not been made, and there is a real risk that the majority’s conclusions will be used to justify attempts to ‘decouple’ the UK from the ECHR system of rights protection and to dilute rights protection for non-citizens and other vulnerable groups.

Media and political reaction to the Commission’s report has been largely hostile. Many commentators have already written it off in Sadiq Khan MP’s phrase as a ‘dog’s breakfast’, and it may disappear into political limbo. However, public lawyers will find much in the report to sink their teeth into, even if not everything in it will be to their taste.

To start with, the Commission’s report engages seriously with the complexity of UK human rights law while attempting to stay within its constrained terms of reference. As Adam Wagner has suggested, it has produced an ‘interesting health check of the human rights system as it is functioning today, warts and all’. It shows considerable sensitivity when it comes to the devolved regions, and correctly makes the point that any move towards drawing up a UK Bill of Rights must proceed gradually and take place within the context of a wider constitutional debate. The majority also make the important point that most Council of Europe member states have national bill of rights which often protect rights to a similar or even a greater degree than the ECHR while also attracting a high degree of ‘public ownership’, in contrast to the HRA.

However, the majority then leap to the conclusion that a UK Bill of Rights couched in suitably resonant language could come to enjoy a similar status. This is a big assumption. Not all national bill of rights have enjoyed a charmed existence – for example, the Canadian Bill of Rights 1960 failed to attract popular affection or to protect rights to any meaningful degree. Everything depends on the content of a Bill of Rights, its mode of enactment and the substance of the legal protection it provides for human rights – and the majority report is remarkably vague when it comes to these key points.

For example, the majority provide little detail as to how any UK Bill of Rights might function in concrete legal terms. They suggest that the ‘mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act’ and in particular should contain a similar mechanism to the declaration of incompatibility provided for under s. 4 HRA. However, by mentioning s. 4 while conspicuously omitting any reference to s. 3 HRA, this conclusion obscures more than it illuminates when it comes to the key question of how much freedom should courts have to interpret legislation in a manner that complies with human rights principles. Crucially, the report is also silent on the key legal issue as to whether Convention rights as interpreted by the European Court of Human Rights should continue to be applied by national courts in tandem with any new national provisions, as is the case in every other member state of the Council of Europe.

The majority does reach a clear conclusion that socio-economic and environmental rights should not be protected under any future UK Bill of Rights, on the basis that it is ‘undesirable in principle to open up to decisions of the judiciary issues which, in their view, are better left, to elected legislatures’. In contrast, it concludes that a Bill of Rights could protect some additional rights such as the right not to be discriminated against on the grounds of ‘innate characteristics’, such as gender or ethnic origin. However, this specific right is already effectively protected under EU law and the Equality Act 2010, and the report sheds little light on what other rights could be protected that are not currently covered by the HRA.

In general, the majority report reads like a summary of the limited common ground shared by the seven commissioners who agreed to lend their names to it. The differences it glosses over are graphically illustrated by the separate papers written by various members of the Commission which are attached to the main report. These papers present a fascinating diversity of views, and highlight the tenuous nature of the common ground shared by the majority.

For example, Martin Howe QC sets out in detail in a paper entitled ‘A UK Bill of Rights’ how he thinks such a Bill of Rights could be worded using the language of the common law so as to provide better protection for basic civil and political rights than currently exists under the ECHR/HRA. However, he also suggests that such a Bill of Rights could legitimately grant non-nationals a lesser degree of rights protection than currently exists under the ECHR/HRA. Furthermore, in a subsequent paper entitled ‘Entrenchment of a UK Bill of Rights’, he agrees with Anthony Speaight QC that the judicial power to re-interpret legislation under s. 3 HRA should be significantly pruned back. In other words, Howe’s proposal would provide a significantly lower level of legal protection for rights than is currently available under the ECHR/HRA.

In contrast, in a joint paper entitled ‘Unfinished Business’, Lord Faulks QC and Jonathan Fisher QC show little interest in working out the intricacies of how a UK Bill of Rights might be designed. Instead, they make it clear that, in their view, the function of any home-grown UK Bill of Rights would be to limit the influence of what they consider to be the ‘judicially activist’ European Court of Human Rights. Their paper cites a grab-bag of sources, including the Mail on Sunday letters column and some rather selectively interpreted judicial writings, to make the case that the case-law of the Strasbourg Court has diminished respect for human rights in the UK, and present the proposed Bill of Rights as a first step in altering this narrative.

A third and radically different perspective is provided by Lord Lester QC in a paper headed ‘A Personal Explanatory Note’. Lord Lester both defends the Strasbourg Court against its critic and argues that the HRA is ‘a well-drafted and subtle compromise respecting both Parliamentary sovereignty and the need for effective legal protection of fundamental rights’. In his view, a home-grown Bill of Rights would build upon the achievements of the HRA, by approaching European human rights law ‘through UK law rather than around UK law’ and rooting human rights protection in deep British constitutional soil.

In other words, the majority disagree sharply on the key questions on the purpose and function of any future UK Bill of Rights and its relationship with the ECHR system of rights protection. However, they nevertheless agree that a UK Bill of Rights would represent an improvement on the status quo, on the basis that it would have a better chance of attracting public ownership. This conclusion seems to be based on a considerable faith in the symbolic appeal of any such future Bill of Rights and its capacity to bridge the current sharp divide that exist between supporters and opponents of the current state of UK human rights law. As Baroness Kennedy and Philippe Sands point out in their powerfully-argued dissenting opinion, entitled ‘In Defence of Rights’, it is ‘difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain’.[1] Furthermore, as I have argued elsewhere, it remains open to question whether a UK Bill of Rights could in fact resolve all the current controversies that surround human rights law.

In general, it is hard to avoid the impression that the Bill of Rights debate has moved on from when the Commission was initially established in March 2011. It seems to have served as a learning process through which Tory politicians and think-tanks in particular have identified what they consider to be the real enemy, namely the alleged judicial activism of the Strasbourg Court. This is graphically demonstrated by an article published in the Daily Telegraph by the Justice Secretary (and Lord Chancellor) Chris Grayling MP on the day that the Commission published its report, where he promised only to ‘read and digest’ the Commission’s report while making it clear that the real problem as he sees it with human rights law is that the Strasbourg Court ’has overstepped the mark’. Mark Elliott, David Feldman and myself writing on this blog have highlighted the potentially serious consequences of Grayling’s suggestion that ‘it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters’. However, it is clear that the real debate is now focused upon the UK’s relationship with the ECHR, and not on whether a new UK Bill of Rights is necessary or desirable.

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

Suggested citation: C. O’Cinneide ‘The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?’  UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org,

[1] Kennedy and Sands also make the important point that political and public attitudes towards the ECHR/HRA are not as uniformly antagonistic as the majority assume, especially when viewed from the perspective of the devolved regions.

Leave a comment

Filed under Constitutional reform, Human rights

Cormac Mac Amhlaigh: Whether You Agree With its Conclusions Or Not, the Bill of Rights Commission Hit On An Important Issue For Human Rights and the Future of Britain.

cormacSo the Bill of rights Commission has produced its final report after a 21-month long study into the state of human rights in British law, tackling the major question of whether Britain needs a Bill of Rights.  The  reaction from the legal fraternity has been marked by, well, slight disappointment.  The biggest news of the report seems to be less its content and more the fact that it failed to reach unanimity on  the questions in its terms of reference, such was the disagreement among its members about how to proceed.  For some this was inevitable given the competing factions and vested interests which led the creation of the commission in the first place.

On the million dollar question of whether Britain needs a bill of rights, the plurality (given that there was no consensus) gave a qualified yes.  One of the main reasons for this conclusion was the fact that the other obvious candidate for the title of Britain’s bill of rights, The Human Rights Act 1998, lacked sufficient ‘ownership’ by the public at large .  A domestic bill of rights which, significantly, would build on, rather than replace, the rights contained in the Human Rights Act, would go some way in fostering popular engagement with human rights.

For some, not least the dissenting minority report of the commission, the necessity of a bill of rights is at best superfluous and at worst a smoke screen for more sinister motives such as undermining the rights already protected under the European Convention of Human Rights or a prelude to the UK’s withdrawal from the Convention.  Whichever interpretation of the motivations of the plurality’s recommendations in the report, it does hit on an important issue.

Historically, bills of rights, as much as written constitutions, have been the product of a rupture with the past and the symbol of a brighter future.  The French Declaration of the Rights of Man and the Citizen and the Bill of rights stitched into the US constitution as a series of amendments were part of the process of transition from the ancien regime to the founding of a new political community.  More recently the German and Italian constitutions’ robust bills of rights, the myriad bills of rights of post-colonial constitutions, and those of the former soviet bloc countries and the new South Africa were all part of a transition from past tyranny to a more just future.

In this sense, bills of rights have played a strong identificatory function, a robust statement of the identity of a newly founded political community. The identity of this new community was marked by what it was not; a rejected ‘other’ be it a tyrannical monarch on the other side of Atlantic, as in the US case, or closer to home as in France, brutal dictatorships as in Germany, Latin America or the ex-Soviet countries or an odious regime such as apartheid in South Africa.

This identificatory function of a bill of Rights is something which the Human Rights Act, or indeed the Bill of Rights commission itself, would have difficulty fulfilling. Whereas copying and pasting from international human rights instruments into a domestic bill of rights as the Human Rights Act essentially does is not uncommon (see the ex-Soviet state constitutions and the myriad post-colonial constitutions), the nature and passage of the human rights Act, an ordinary Act of parliament passed pursuant to an election manifesto, was not quite the wide-ranging deliberative ‘constitutional moment’ which could have discharged this identificatory function.  The bill of rights commission itself, while proposing a constitutional convention amongst its recommendations, could not have hoped to discharge this function either, so limited was its remit, membership and visibility among the wider public.

The identificatory function of a bill of rights is considerably complicated in an increasingly dis-United Kingdom.  One of the reasons for the equivocation in the opinion of the plurality as to when such a bill of rights should be created in the report was the fact that with a referendum on Scottish independence looming, and a parallel bill of rights process for Northern Ireland ongoing, that the question of drafting a bill of rights  for the UK as a whole, would require the resolution of the constitutional question of the shape of the United Kingdom into future.

However, the identificatory function of a bill of rights is crucial to this shape given that it constitutes a statement of the kind of political community the current (and future) UK is; one that upholds the rule of law and human rights or one that does not.  As such, the question of a bill of Rights for Britain is inextricably bound up with the question of the future form of the UK, and like the question of form, is not one that will go away anytime soon.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.   

Suggested citation: C. Mac Amhlaigh,  ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an important issue for human rights and the future of Britain.’   UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org

1 Comment

Filed under Constitutional reform, Human rights

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).

5 Comments

Filed under Human rights, International law, UK Parliament

Mark Elliott and Christopher Forsyth: A right to administrative justice?

In its second consultation paper, the Commission on a Bill of Rights asks whether a UK bill of rights should contain a right to administrative justice. This is a question that should be approached with considerable caution. It is not self-evident that inclusion of administrative justice in a bill of rights would protect administrative justice more fully or more securely than the law does at present. After all, it can confidently be said that the legal systems of the UK already recognise a right to administrative justice. The right is a strong one, in that it is embedded deep within the common law constitution and reflects a wide range of principles of good administration that condition the relationship between the individual and the state. Against this background, it is necessary to ask what, if anything, a textual right to administrative justice would add. The risk, we will argue, is that it may well add needless layers of complexity and uncertainty while making little by way of a positive contribution. Indeed, it might hamper the development of the law by the judiciary.

The scope of a right to administrative justice: lessons from South Africa

We begin with a comparative glance at the right to administrative justice protected by the South African Constitution 1996. This illustrates some of the difficulties that can readily arise. Given the very poor record the South African courts during the apartheid years in subjecting to law the executive’s exercise of its far reaching administrative powers, it was inevitable that when the moment for constitutional reform came there was a strong political will to subject the executive to the rule of law. What eventually emerged in the final constitution was section 33 which provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair” and that “Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.

It is plain that the concept “administrative action” plays a crucial part in determining whether section 33 is engaged or not.  If the action in question is not “administrative” the protections of section 33 do not apply. The interpretation of the phrase “administrative action” in section 33 is assisted by the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). This was enacted to give effect to the section 33 right, and contains a long and complicated definition of “administrative action”. The result of these provisions has been that the concept of “administrative action” has moved to the centre stage in South African administrative law. As Professor Cora Hoexter, a leading expert on South African administrative law, remarks: “the concept of administrative action [has become] the focus of administrative law jurisprudence to an extent that had not been anticipated. What had previously been a non-issue in our administrative law became its most noticeable feature. The threshold administrative action enquiry soon took up far more space in the law reports than any other issue.”

What this means is that the energies of counsel and judges were diverted into the rather formalistic question of whether a particular action constituted “administrative action”, and away from the far more important question of what fairness required in the circumstances.  The law in South Africa has become more complicated and uncertain; it is not clear that the constitutionalisation of the right to administrative justice has improved matters. Some of the difficulties in South Africa derive from deficiencies in the drafting of the PAJA, but clearly the issue is one of principle.  A line needs to be drawn between those exercises of power which do engage the right to administrative justice and those exercises of power that do not. Inevitably disputes will arise around that boundary line. And that creates the danger that the precise course of the boundary line rather than the substantive issues of justice and fairness will come to dominate the law.

Of course one answer to this difficulty would be to make the boundary line clear. Article 41 of the EU Charter of Fundamental Rights, for instance, provides for a right to good administration but only in relation to matters dealt with by “the institutions, bodies, offices and agencies of the Union”. The “institutions, bodies, offices and agencies of the Union” is a relatively clear and well defined concept. But there is no similar clear boundary to the reach of public power in the UK; that boundary is notoriously ill defined and has often caused difficulty. When public bodies exercise private powers and private bodies exercise public powers, where does “administrative action” start or finish? The well known difficulty in determining whether a particular body is a “core” public authority, a “hybrid” public authority or not a public authority at all in terms of section 6 of the Human Rights Act 1998 is simply an example of this uncertainty, yet is has a vital effect on the reach of the HRA. The bottom line is that the boundary between public and private power is not easy to draw in the UK context – and as the experience with section 6 of the HRA shows, locating that boundary is a task that is not necessarily aided by the existence of a statutory text.

Symbolism, status, clarity

But if these difficulties of reach were overcome, might the inclusion of a right to administrative justice add clarity to the law within the boundary? This depends in part upon the form of any bill of rights. If the bill of rights were drafted in the loose and lofty language generally characteristic of such texts, it would be unlikely to add anything meaningful to, or clarify, the existing jurisprudence.  But even a more detailed text might achieve little in this regard, given that so many of the principles of good administration are highly sensitive to the statutory and factual context of individual sets of circumstances. A further point to bear in mind is that an attempt to codify the principles of good administration in a reasonable amount of detail might risk inhibiting the development of an area of law that owes so much to the creativity of the judiciary.

What purpose, then, might be served by the inclusion of a right to administrative justice in a bill of rights? A right to administrative justice, or to good administration, in a bill of rights might be of symbolic significance. For example, it might be considered to be evidence of the seriousness with which the right is taken. Indeed, if a bill of rights were to be adopted, the omission of a right to good administration might (rightly or wrongly) be perceived as indicating its relative lack of importance. But the extent of any such advantage – or, perhaps more accurately – avoidance of disadvantage would need to be weighed carefully against the potential complications identified above.

Allied with, but distinct from, the point about symbolism is the matter of the status of any right to administrative justice. It may be thought that the inclusion of such a right in a bill of rights would result in its enjoying an enhanced status. On this view, inclusion would not merely signify, in symbolic terms, the importance attached to the right: it would also ascribe to it, in some concrete way, a status exceeding that which it presently possesses. However, whether this would be the case turns upon two main factors.

The first concerns a presently unknown matter: viz the constitutional status that a bill of rights would itself have. At present, it is entirely unclear what status any bill of rights would have – and how and to what extent such a statutory text would protect the rights contained in it. Would rights be protected interpretatively, as is the case at present in relation both to Convention rights (under the HRA) and common law constitutional rights? Or would a bill of rights somehow confer a higher level of protection – and, if so, what form would that take? The uncertainty that exists in relation to this matter can be regarded as a significant flaw in the process undertaken by the Commission. Asking whether a given right – be it a right to administrative justice or some other right – should be included in a bill of rights and, if so, what the content of that right should be is somewhat meaningless unless there is already some sense, in the first place, of what inclusion would mean in practice.

The second factor concerns the present status of the “right” to good administration. The effect of enshrining such a right in a bill of rights necessarily turns not only upon the mode and strength of protection provided for by the statutory text, but also upon the existing status of the right. Subject to the point made in the following paragraph, it is only by comparing these two statuses that an assessment can be made of the likely effect of including the right in a bill of rights. In fact, the right to administrative justice, as it currently exists, has an unusually — perhaps unique — constitutional status. At the very least, it can be said – on the strength of cases such as Anisminic Ltd v Foreign Compensation Commission– that it does not yield in the absence of crystal clear contrary provision in primary legislation. And it is questionable – as, for instance, certain dicta in R (Jackson) v Attorney-General indicate – whether it yields even in those circumstances. On this view, inclusion in a bill of rights may not enhance — and might, subject to a point made in the following paragraph, conceivably diminish — the status of right.

A final point should be noted. It concerns the relationship between any bill of rights and common law constitutional rights – another area of uncertainty that contributes to the vacuum within which the consultation process has taken place. Politicians who advocate repeal of the Human Rights Act – whether or not coupled with the enactment of a (weaker) bill of rights – implicitly assume that getting rid of the HRA would, at a stroke, surgically remove the Convention rights from domestic law. But this misconceives the parallels – and somewhat osmotic relationship – between HRA/Convention rights on the one hand and common law rights on the other. Just as the HRA has not – and, one view at least, could not – revoke common law rights, so it is unlikely that such rights would – or, arguably, could – be disturbed by a bill of rights. This point is of significance for two reasons. It adds weight to the argument about complexity, in that any textual right to administrative justice would not be exhaustive; existing grounds of review (in their current and potentially future, evolved forms) would remain available. At the same time, the likely relationship between existing rights and a bill of rights means that including within the latter a right to administrative justice may well leave intact the existing constitutional security of judicial review, given that any statutory right would sit alongside, and would not eclipse, the courts’ existing powers.

Where, then, does this leave us? A blandly expressed right to good administration in a bill of rights would be unlikely to do much damage, and its omission from a catalogue of rights might create a misleading impression as to its fundamental importance. But any attempt to lay down the principles of good administration in detail, or to define with precision the reach of the right, might well add needless layers of complexity and uncertainty while making little by way of a positive contribution.

Mark Elliott is Reader in Public Law at the University of Cambridge. Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge. This post is an expanded version of the relevant part of the Cambridge Centre for Public Law’s response to the most recent consultation paper issued by the Commission on a Bill of Rights.

Suggested citation: M. Elliott and C. Forsyth, ‘A Right to Administrative Justice?’   UK Const. L. Blog (10th October 2012) (available at http://ukconstitutionallaw.org

2 Comments

Filed under Constitutional reform, Human rights

News: British Academy Report on Human Rights and the UK Constitution

Human rights law has been the subject of considerable controversy over the past few years. A new report, written by Colm O’Cinneide, Reader in Law at UCL, and released on September 27 by the British Academy Policy Centre, aims to clarify the central issues at stake in this debate. The report, Human Rights and the UK Constitution,analyses the relationship that currently exists between the European Convention on Human Rights (ECHR) and UK law, and on how the Human Rights Act (HRA) fits within the UK’s constitutional architecture. It also explores the options for a new UK Bill of Rights, and examines the case for and against reform of existing human rights law. Completion of the report was overseen by a steering group comprised of five British Academy Fellows – Professors Vernon Bogdanor, John Eekelaar, David Feldman, Sandra Fredman and Conor Gearty – and also Francesca Klug (LSE). The report is available at:

https://www.britac.ac.uk/policy/Human-rights.cfm

 

3 Comments

Filed under Human rights

Commission on a UK Bill of Rights Publishes Second Consultation Paper

The Commission on a UK Bill of Rights has today published a second Consultation Paper.

The Commission is seeking further views from the public on whether or not we need a UK Bill of Rights, and if so, what the form and content of any such Bill might be.

Commenting on the release of the consultation paper, the Chair of the Commission Sir Leigh Lewis said:

‘I am pleased that the Commission has today published this second Consultation Paper, in order that we can seek further views on the issues relating to a UK Bill of Rights.  With less than six months until we must make our recommendations we want to hear from as many individuals and interested parties as possible. This Consultation Paper offers a further opportunity for people and organisations to have their say and is part of a wider programme of consultation and engagement by the Commission.’

The second consultation paper can be found here. 

The deadline for responses is 30 September 2012.

2 Comments

Filed under Human rights

Helen Fenwick: An appeasement approach in the European Court of Human Rights?

This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states.  Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?

British proposals for reform of the Strasbourg Court

This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.

The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.

David Cameron’s speech  to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.

Austin v UK and Von Hannover v Germany (No 2)

It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.

The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).

When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).

Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66).  On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.

A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).

The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.

The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.

There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders,  Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism[1] and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.

If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.

The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at [150] and [155]). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.

This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.

The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.

Conclusions

The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?

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


[1]             Eg the new stop and search power not dependent on reasonable suspicion under Part 4 clause 61 of the Protection of Freedoms Bill 2011 (currently the Terrorism Act 2000 (Remedial) Order 2011 introduced, on an interim basis, replacement counter-terrorism stop and search powers, exercisable without reasonable suspicion), and powers under TPIMs, replacing control orders.

14 Comments

Filed under Constitutional reform, Human rights