Tag Archives: Relationship Between European and National Law

Anthony Bradley: A Review of Jack Straw’s Hamlyn Lectures: Aspects of Law Reform: An Insider’s Perspective

abradleyAs the lecturer disarmingly tells us at the outset of the Hamlyn Lectures for 2012 Hamlyn Lectures for 2012, the illustrious procession of Hamlyn lecturers since 1949 (Lord Denning) through to 2011 (Jeremy Waldron) has ‘without exception’ comprised ‘lawyers distinguished by their practice, their academic study or both’.  Jack Straw is an exception.  Since an LLB at Leeds and two years at the criminal bar, he has made his career in politics – holding glittering ministerial office, throughout the Blair-Brown years, as Home Secretary, Foreign Secretary, leader of the Commons, and Lord Chancellor.

Straw has always been interested in ‘the interaction of the work of our courts with the processes of government and the body politic’ and the lectures concern three areas in which Straw could draw on his own experiences.  Despite the responsibility that he had while a minister for ‘an extensive legislative programme’, Straw does not deal with the process of law reform or the machinery of legislation, but with three aspects of the legal system.

The first lecture, ‘The future of the criminal courts’, highlights changes in criminal justice since 1964.  These include greater legalization of policing, thanks in part to PACE and the creation of the Crown Prosecution Service, improved confidence in police integrity (Straw appointed the Stephen Lawrence inquiry), the impact of new technologies, and an improved relationship between senior judges, government and Parliament. (Straw does not claim credit, as he could have done, for his role as Lord Chancellor in the task of bridge-building between government and judiciary that was needed after this relationship reached its nadir during Lord Falconer’s tenure of the post.)  Straw asserts that the criminal justice system is now ‘more effective, more professional, more replete with integrity and more focused on the needs of victims’ than at any other point in his lifetime – but the programme of reform is ‘far from at an end’.

Those who are sceptical about these conclusions will find the third lecture (on appointing the judges) less controversial.  Straw develops two topics: the need to modify the system for appointments established in 2005 (by, among other things, sharpening up the roles of the Lord Chancellor and the Lord Chief Justice), and the need for a more diverse judiciary.  But it is the second lecture, ‘The Human Rights Act and Europe’, that many readers of this blog will read most closely.

As in his memoirs,  Straw describes the happy ‘conception, birth and childhood’ of the Human Rights Act 1998 (Lord Irvine was the bill’s midwife in the Lords; Straw its midwife in the Commons).  He emphasizes the value of the preparation done before the election in 1997, by the joint Labour/ Lib Dem working party among others, especially on the issue of how to incorporate the ECHR alongside the ‘elephant in the room’ of parliamentary sovereignty.   “The result was an Act which was elegantly drafted, and which has met the test of time.  The Act has been a success.” (p 29)

Straw insists that the Act is here to stay.  But, while praising the quality of the senior British judges, he strongly endorses Lord Irvine’s criticism  of the judges for failing to understand the clear words of section 2, HRA: those words (‘must take into account’) were  ‘chosen with care’ and support neither the ‘mirror principle’ nor any suggestion that British judges are duty bound to follow Strasbourg jurisprudence.

Straw puts the blame for current political hostility to European human rights on the ‘ever-expanding remit of the Strasbourg Court for which it has no mandate’.   He argues that, while British courts have for centuries ‘sought to defend the individual against the arbitrary or oppressive power of the state’, and may make decisions that are inconvenient to the executive, Parliament retains the authority to legislate in breach of fundamental rights.  “If Parliament holds its ground, it wins, always.” (p 38)  But such an extreme position is seldom reached because British courts ‘have an intimate understanding of the cultural and political norms within which they operate’.  And the political class is sometimes ‘willing, praying, that the courts will act where they fear to tread’ (the example given is development of the law of privacy).

By contrast, the Strasbourg court ‘has set itself up as Supreme Court for Europe, and one with an ever-expanding remit’.  Straw attacks the principle that the ECHR is a ‘living instrument’, claiming that this lacks any valid basis. He accepts that there is authority in the Convention for the Court to have ‘the role of protecting basic human rights’ (emphasis supplied), but agrees with Lord Hoffmann that basic human rights cannot be stretched to include ‘detailed interpretation of the right to silence, the hearsay rule and – most preposterous of all – night flights at Heathrow airport’.  And he highlights the issue of prisoners’ voting, on which there is ‘absolutely no doubt’ that it is the will of the British people that convicted prisoners should not be able to vote.

Straw develops two further arguments.  The first (linked with an attack on the court for attempting to impose uniformity in human rights across Europe) records disappointment that the HRA has not had the hoped-for effect of expanding the ‘margin of appreciation’ that Strasbourg should allow for national practice in dealing with ‘wider human rights beyond those basic ones whose protection was the purpose of the treaties’ (emphasis supplied).

The second argument is that, unlike most national constitutions, where decisions of a supreme court are subject to a democratic override (whether by special legislative process or constitutional amendment), there is no procedure in the Convention for enabling decisions of the Strasbourg court to be subject to international legislative process.  The view that there is a ‘democratic deficit’ in the Convention system is indeed held by others in Europe.[1]   One answer to this, as Straw points out, lies in the Convention machinery for implementing decisions of the court, which is primarily a matter for political action within the Council of Europe.  But Straw does not accept that this redresses the imbalance in the Convention system and warns that the pride of the court may go before a fall.

There is of course scope for challenging the legitimacy of the court (and indeed of any court that has to hold the ring between legislative decisions and minority rights), but our national sensitivities need to be seen in the light of the case for an understanding of Europe based on a shared value of human rights.  As the Hungarian judge at Strasbourg, András Sajó, has said, the historic belief in shared rights ‘is a self-imposed vision of the member States and not an elitist view from the Court at Strasbourg’.[2]  I welcome the continuing support that Straw gives to the HRA, but I would insist, with Sajó, that the features of the Strasbourg court that Straw now blames for the current discontents were all present and clearly visible in 1997.   

Anthony Bradley is Research Fellow at the Institute of European and Comparative Law. University of Oxford, and is formerly a vice-president of the International Association of Constitutional Law.

 This is a review of Jack Straw, Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press: 2013).

 Suggested citation: A. Bradley, ‘A Review of J. Straw, Aspects of Law Reform: An Insiders Perspective’ UK Const. L. Blog (7th October 2013) (available at http://ukconstitutionallaw.org)

[1]           For a recent collection of papers that inter alia discuss this view, see S Flogaitis, T Zwart and J Fraser (eds) The European Court of Human Rights and its Discontents : Turning Criticism into Strength  (Edward Elgar, 2013).

[2]           A Sajó, in Flogaitis, Zwart and Fraser (above), page 186.

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Dorota Leczykiewicz: Melloni and the future of constitutional conflict in the EU

leczykiewicz_dorotaConstitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution.

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorised his extradition to Italy but in the same time released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in his absence, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted. The decision was upheld by all levels of Italian judiciary. Some years later Mr Melloni was arrested by the Spanish police. In 2008 a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to challenge the result of his Italian trial, a possibility which did not exist under Italian law.

The right to a fair trial

Melloni may be read as a case concerning merely the scope of the right to a fair trial. Should Mr Melloni have a possibility to ask for a retrial in Italy? Does the fact that he chose his lawyers and was represented by them during a trial from which he was absent justify his surrender to Italy to execute a custodial sentence even if he was unable to ask for a retrial? The European Arrest Warrant (EAW) Framework Decision (2002/584 as amended by Framework Decision 2009/299), on the basis of which Mr Melloni’s surrender would take place, does offer some protection to the right to a fair trial. It provides that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence if the convicted person did not appear in person at the trial. This discretion is however excluded in three sets of circumstances, including when the person was summoned in due time and informed that a decision might be handed down if she did not appear for the trial, or she had given a mandate to a legal counsellor to defend her at the trial and was so defended. In these circumstances, the national court is under an obligation to execute the European arrest warrant and is not allowed to impose any additional conditions. In comparison, the Spanish Constitutional Court interpreted Article 24(2) of the Spanish Constitution to mean that extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction would be ‘an ‘indirect’ infringement of the requirements deriving from the right to a fair trial’. It follows that the protection offered by the Spanish Constitution is broader than that offered by the EAW Framework Decision. It is also worth noting that the Spanish Constitutional Court made no attempt to interpret Article 24(2) restrictively so as to avoid conflict with EU law. The direct incompatibility between the Spanish Constitution, as interpreted by the Spanish Constitutional Court, and the EAW Framework Decision meant that Spanish authorities had no way of reconciling their obligations stemming from EU law, on the one hand, and national law, on the other. The limits of the principle of EU law supremacy were to be tested once again.

Supremacy and fundamental rights, yet again…

The conflict between the EAW Framework Decision and the Spanish Constitution led the Spanish Constitutional Court to ask the Court of Justice of the EU for interpretation of obligations of national courts under EU law. Three points should be made here. First, the EAW Framework Decision harmonises exhaustively the grounds on the basis of which recognition of decisions of courts of other Member States following a trial at which the person concerned did not appear in person may be refused. Secondly, the right to a fair trial is in the EU legal order a ‘fundamental right’, now guaranteed also by the Charter of Fundamental Rights (Article 47). Thirdly, the Charter includes a provision according to which ‘Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law … and by the Member States’ constitutions’ (Article 53).

The Court’s judgment in Melloni is clearly motivated by the desire to protect the EAW regime and its effectiveness. The Charter right to a fair trial is interpreted narrowly to ensure that the regime is compatible with it. The objective of the EAW Framework Decision, which is the improvement of mutual recognition of judicial decisions, is held to justify the restrictions imposed on national courts’ competence to refuse the execution of a European arrest warrant in a situation where the person being surrendered is unable to apply for a retrial. Yet, this conclusion is reached by the Court without any proportionality review, which raises questions as to compatibility of the Court’s reasoning with Article 52(1) of the Charter. The standard of protection of the Charter right to a fair trial is in this context the same as that defined in the Framework Decision. National constitutions are denied any role in the interpretation of the Charter right. According to the Court, national authorities and courts can apply national standards of protection of fundamental rights, a possibility envisaged by Article 53 of the Charter, only is so far as ‘the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law [were] not thereby compromised’. This means that EU secondary law prevails over state constitutions. Whenever application of national constitutional standards would affect effectiveness of an EU act national courts have to refrain from using them. Member States’ courts are effectively prohibited from ‘casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision’.

The future of constitutional conflict

The significance of the Melloni judgment should not be underestimated. While its immediate effects could be restricted to the particular EU legislative act in question, the judgment sends a very worrying message about the way in which the Court of Justice sees its role as a constitutional review court. The starting assumption of the Court is not only that the EU legislator has respected fundamental rights but also that the scope of protection of fundamental rights, including those recognised in the Charter, should be determined on the basis of an act of secondary law. If this method was applied more broadly, an EU act could never be found invalid for breaching fundamental rights. The judgment in Melloni is also a step towards the centralisation of standards of fundamental rights protection in the EU, at least in areas where Member States’ authorities are implementing EU acts. When such assiduous centralisation leads to the lowering of protection which national courts are allowed to offer further instances of constitutional conflict are only a matter of time.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

Suggested citation:  D. Leczykiewicz: Melloni and the future of constitutional conflict in the EU U.K. Const. L. Blog (22nd May 2013) (available at http://ukconstitutionallaw.org).

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Roger Masterman: The Mirror Crack’d

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Roger Masterman is Reader in Law at Durham University.

 

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

 

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

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

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

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

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

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

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

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

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

This makes four points clear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Filed under European Union, Human rights, Judiciary

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

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

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

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

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

The roles s2 is expected to play

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

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

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

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

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

Should the Supreme Court go beyond Strasbourg?

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

 

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

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Filed under Human rights, Judiciary, UK Parliament

Dorota Leczykiewicz: The ‘national identity clause’ in the EU Treaty: a blow to supremacy of Union law?

The provision generally referred to as ‘the national identity clause’ is located Article 4(2) of the Treaty on European Union (TEU).  It says:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

Article 4(2) replaces a more modestly formulated provision of Article 6(3) of the pre-Lisbon Treaty.  It is now situated between a provision laying down the principle of conferral (according to which competences not conferred on the Union in the Treaties remain with the Member States) and that laying down the principle of sincere cooperation. The full significance of the provision has not yet been explored in the case law. Three scenarios come to mind, in which the ‘national identity clause’ might prove significant. First of all, the clause may be invoked by the Member States challenging validity of an EU act, either independently or in conjunction with an argument based on the principle of subsidiarity. Here, it will relate to the question of when and how the EU should exercise its competences, especially those of a more general character, such as Article 114 TFEU, which enables the Union to adopt harmonising measures to improve the functioning of the Internal Market. Secondly, Member States may invoke national identity as a justification for a failure to fulfil obligations stemming from EU law. The Court of Justice, as an institution of the Union, will have to show respect to national identities by allowing national authorities to derogate from, for example, free movement provisions. Finally, Article 4(2) TEU could be seen as codification of the case law of national constitutional courts, who often claim that EU law supremacy is only conditional. Whether it is the protection of human rights or the preservation of the essential structures of national constitutionalism, they cannot, the argument goes, be overridden by EU law.

‘National identity’ case law

Looking at the case law (both of the Court of Justice of the EU and of national constitutional courts) we can see the use of the ‘national identity’ clause in all three contexts. In Spain v Eurojust Spain was challenging calls for applications issued by Eurojust, which demanded the submission of the application form in English. While Spain relied on the concern for the protection of their language independently, and not as part of their national identity, AG Maduro in his opinion did draw the connection, which indicates that national identity may be relevant for cases in which the validity of EU acts is at stake.

More interestingly, in two cases the Court of Justice confirmed that the ‘national identity clause’ may play an important role in the context of Member States’ derogations from EU law. In Sayn-Wittgenstein the Court had to decide whether an Austrian administrative decision correcting the surname of the applicant in the register of civil status by removing from it elements which referred to a title of nobility was compatible with EU law. The Court held that the matter fell within the scope of EU law because the applicant was an EU citizen who had exercised the right to free movement (she resided in Germany). Because of a confusion and inconvenience which were liable to arise from a divergence between the name she would use in Germany (which included the element referring to the tile of nobility) and the one she would have to use in Austria (deprived of that element) the decision of Austrian authorities was regarded to be an obstacle to free movement and thus in need of justification. In assessing this latter issue the Court held: ‘in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.’ It follows that Article 4(2) TEU was used as an element of the proportionality review in order to strengthen the claim that national authorities should enjoy a broad margin of administrative discretion where ‘the status of the State as a Republic’, as an element of Austrian identity, is at stake.

In  Runev-Vardyn,  the applicant challenged the spelling of her name adopted by Lithuanian authorities. The applicant was of Polish ethnicity and wanted her first name and surname to be spelt according to the rules of the Polish language. Her predicament was moreover deepened by the fact that her Polish marriage certificate used the Polish spelling for her husband’s and now also her surname. By changing the spelling also of her married name Lithuanian authorities made her bear a different name from that of the applicant’s husband. The Court of Justice held that EU law ‘[did] not preclude the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the surname which one of its nationals had prior to marriage and the forename of that person, where those names were registered at birth in accordance with those rules’. However, the Court declined to rule conclusively on the question of whether Lithuanian authorities could be regarded to have breached EU law when they refused to amend the part of applicant’s name which she shared with the husband. If a violation was found, a question of justification would arise, and in this context the Court invoked the ‘national identity clause’ to point out that protection of the official national language by imposing the rules which govern the spelling of that language, constituted, in principle, ‘a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and [might] be taken into account when legitimate interests [were] weighed against the rights conferred by European Union law’. What is very interesting about this ruling is that the ‘national identity clause’ is held to possess a double function. First, it can act as an objective which prima facie justifies a restriction of an EU right (i.e. a derogation from an EU obligation imposed on the Member State). Secondly, the same concern may additionally play a role when the national court is balancing the concern in question against an EU right. This double function of the ‘national identity’ concern suggests that a reliance on it weighs very much in favour of national rules and against the right which an individual derives from EU law. If this is the case, and despite a seemingly more modest formulation used by the Court, the ‘national identity clause’ might actually have a trumping effect.

This goes in line with what AG Maduro observed in his opinion in Michaniki:

“The preservation of national constitutional identity can … enable a Member State to develop, within certain limits, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement.”

However, he does not quite want to accord the ‘national identity clause’ the trumping effect which the Court’s ruling in Runevič-Vardyn suggests. He held:

“[R]espect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.”

‘National identity clause’ and constitutional conflict

So the tension remains. National constitutional rules and practices can be invoked as expressions of values forming ‘national identity’ but there are limits to when such arguments are going to be conclusive. The best illustration that the Court of Justice of the EU will indeed look for an appropriate scope for the application of the ‘national identity clause’, bearing in mind its, in practice, trumping effect, is a recent ruling in a UK case – O’Brien v Ministry of Justice. The applicant, a part-time judge employed on a fee-paid basis and a barrister, tried to rely on an EU Framework Agreement on part-time work to assert his right to retirement pension calculated as a proportion pro rata temporis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Lithuanian government argued that the effect of the ‘national identity clause’ is that EU law simply could not apply to the judiciary. The Court of Justice did not agree with this proposition. It held:

“[T]he application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment, which constitutes one of the objectives of those acts, and to protect them against discrimination as compared with full-time workers.”

The EU Court is clearly assuming the competence to decide when the application of EU law should be seen as affecting national identity. Arguably, once it is accepted that national identity is being affected, the trumping effect of Article 4(2) TEU will be activated.

What is slowly emerging from the case law is that the ‘national indemnity clause’ could contribute to the resolution of the constitutional conflict in the EU, but only in a partial way. As we know, the constitutional conflict in the EU concerns a series of issues, ranging from the acceptance of the principle of supremacy, its limits and the basis on which national courts should disapply conflicting national law,  to the discussion of who is the final arbiter of constitutionality in the EU, the Court of Justice of the EU or national constitutional courts. Finally, there is a difficult question of how standards of constitutional review are to be constructed. Should EU acts be reviewed in the light of national standards or should it absorb those standards and in this way preserve its supremacy over national law? A direct reference in the EU Treaty to ‘national identities’ and the imposition on the European Union an obligation to respect them should be seen as way of softening the edges of EU law in both ways. On the one hand, reliance on ‘national identities’ is grounded in EU law and the Court of Justice of the EU is very much in control when the argument will succeed. It allows the concern for national identity to play a role, but within the limits it delineates. The German Federal Constitutional Court, on the other hand, maintains that Article 4(2) TEU is recognition of a national constitutional court’s power to safeguard national constitutional identity by carrying out review of EU acts by that court (the Lisbon judgment). If an EU act does not respect national identities national courts will have the power to resist the obligations stemming for the state from the act. What ‘national identity’ encompasses will for this purpose be determined by the national (constitutional) courts. If so, supremacy of EU law may have suffered a serious blow.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

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Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Harbingers of the demise of sovereignty are not new.  At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory.  In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law.  In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law.  Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline.  However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how.  Logically speaking there are three possible answers to this question:  sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities.  Holders of the no-change position have disputed that sovereignty has changed at all.  They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case.  Others dispute the continuing relevance of sovereignty to the contemporary world, seeing demise as the only possibility.  Given the supposedly categorical nature of the concept – either you have it or your don’t – then the notion of sovereignty evolving rather than simply being surrendered doesn’t make sense, and so we must get used to our new post-sovereign realities, recalibrating our practices, including public law, accordingly.

An emerging more nuanced view is that sovereignty is indeed evolving but not to such an extent that it is no longer relevant.  This ‘late sovereignty’ position holds that the concept still retains its purchase on law and politics, both domestic and supranational, but that its has evolved from the Westphalian paradigm of hermetically sealed sovereign states to incorporate transnational actors such as the EU and ECtHR and their influence on domestic public law.  This evolution denotes a change in the nature of sovereignty claims from categorical to more relative claims of authority such that simultaneous sovereignty claims, both national and supranational, are not incommensurable.

This more nuanced account which views sovereignty in phases from early, high to late forms, implicitly relies on a conception of sovereignty which is flexible and context-specific, rather than immutable and rigid meaning the same thing in all times and places.

As the grammar of public law, the concept of sovereignty entails a series of rules governing the idea of ultimate authority in legal and political practice providing the ground rules of ‘sovereignty games’.  The constitutive rules of sovereignty games constitute the actors participating in the game, that is those agents which makes ultimate authority claims, as well as providing the primary indicator that a particular ‘game’ is being played – that a sovereignty game and not some other sort of game, such as post-sovereignty, is being played. The regulative rules provide standards against which to measure how well the game is played and as such provide criterion for what constitutes a ‘good’ or legitimate claim to ultimate authority.  It is the evolution of this grammar, the constitutive and regulative rules of sovereignty games, which mark the passage from high to late sovereignty.

The rules of sovereignty games played during the high sovereignty era, then, were played primarily by sovereign states, making claims to ultimate authority over a territory and people (the constitutive rules of high sovereignty), justified according to notions of constituent power, popular sovereignty, divine right or even mere convention (the regulative rules of high sovereignty).  In late sovereignty games, the grammar has evolved such that the constitutive rules of late sovereignty games relate not, or not exclusively, to territory and people, but to functional domains such as trade, the environment or human rights.   Furthermore the constitutive rules of late sovereignty games imply that the actors making such claims to ultimate authority no longer fit the mould of the sovereign state.  Thus, the EU makes claims to ultimate authority over certain sectorally defined functions without being, or claiming to be, a sovereign state.

The regulative rules of late sovereignty games, that is, the criteria for what constitutes a ‘good’ sovereignty claim, have also evolved.  First of all, the repertoire of reasons that count as ‘good’ or legitimate claims to ultimate authority has expanded beyond those of high sovereignty.  For example, the justification of ultimate authority claims by the EU over specific functional domains does not rely on constituent power or popular sovereignty, the reason of choice in the high sovereignty era, but rather on grounds of functional necessity.  Thus, the paradigmatic EU late sovereignty claim, the claim to the primacy of EU law by the ECJ, was justified, not according to the will of a European people(s) but with reference to the need to achieve the objectives and aims of the EU Treaties.   In this way, the reasons which justify and legitimate late sovereignty claims have expanded beyond popular sovereignty to include what Fritz Scharpf has called ‘output legitimacy’.

Moreover, conventional justifications of ultimate authority in particular contexts have also shifted in the era of late sovereignty.  Whereas the vestiges of high sovereignty are still traceable in the sovereignty claims of EU Member states, they are arguably not unaffected by the transition from high to late sovereignty in Europe.  This is because the conventional justification for sovereignty in a specific national context in the high sovereignty period no longer provides the justification for national sovereignty in late sovereignty.  Two examples of recent EU Member state sovereignty claims serve to illustrate this point; the German Federal Constitutional Courts (GFCC) Lisbon decision and the UK Parliament’s European Union Act 2011, both of which have received attention in previous posts on this blog.

In June 2009, the GFCC handed down its decision on a challenge to German ratification of the Lisbon Treaty of 2008 finding that such ratification would not per se violate the German constitution.  Significantly, the Court found that, notwithstanding the constitution’s ‘openess’ to European integration, that there were absolute limits on the level of integration possible under the German constitution.  The rationale for this conclusion was based on a strong assertion of German sovereignty, references to which were littered throughout the judgment.  In particular the court justified German sovereignty according to the principles of constituent power, popular sovereignty and the self-determination of the German people which created a particularly robust constitutional identity reflected in the provisions of the German constitution.  This identity set absolute limits to the level of integration possible under the constitution.  Nothing, not even the constitutions ‘openess’ to European integration, could undermine this identity.

Similarly, the European Union Act of 2011, can be read to entail sovereignty claims on behalf of the UK vis-à-vis European integration. In particular two features stand out in this regard, the s. 18 ‘sovereignty clause’  which states that EU law falls to be recognised and available in law in the United Kingdom only by virtue of Acts of Parliament as well as the various ‘referendum locks’ triggering a referendum inter alia whenever further powers are transferred to Brussels.  In terms of justifications of these claims to UK sovereignty, the sovereignty clause has been justified according to nebulous references to the common law’s recognition of Parliamentary sovereignty, whereas the referendum locks are implicitly invoking the will of the people and theories of popular sovereignty and constituent power.

On an initial reading, these assertions of national sovereignty by Germany and the U.K. are unremarkable.  They seem to be rather typical assertions of national state sovereignty according to the classic tropes of high sovereignty games.  A closer reading, however, shows that given the context within which they were made, are better understood as forms of late sovereignty claims prompted by the process of European integration.

Firstly, with respect to the GFCC’s Lisbon decision, the assertion of German sovereignty based on the people and a German constituent power marks a shift from the conventional justifications of German state sovereignty in the post-war era.  In the reconstruction of post-war Germany, and particularly in the drafting of the new constitution, the previously unhappy experiences with popular sovereignty based on a constituent power were suppressed in favour of a strong assertion of the rule of law and the supremacy of the constitution over the political process, which was instrumentalized by a powerful Constitutional Court which frequently undid the will of Parliament.  As Christoph Mollers has argued, this was copper-fastened in the basic law itself through an absolute prohibition on the holding of referendums or plebiscites. It was also explicitly recognized by the GFCC itself in the Lisbon decision where it found that:

‘The [post-war constitution] … breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20th century regarded the right to wage war – even a war of aggression – as a right due to sovereign state as a matter of course’ (para. 199).

Thus, the post-war German constitutional landscape was marked by a ‘constitutional patriotism’ crystallizing around the constitution and the rule of law rather than strong assertions of popular sovereignty or constituent power.  Against this background the justificatory claims of German sovereignty in the Lisbon decision, mark a shift from the constitutional patriotism which has underpinned and justified German sovereignty in the post-war era in the light of the integration experience to an assertion of constituent power and popular sovereignty in the late sovereign period.  Similarly in the UK, the sovereignty clause and the referendum locks in the European Union Act 2011 mark a shift in conventional justifications of UK sovereignty.  Conventionally, UK Parliamentary sovereignty was, as Wade argued, justified according to its social ‘facticity’ rather than by references to the common law as the Ministerial statements surrounding the sovereignty clause seem to suggest (and the Courts have recently supported with gusto).  More strikingly, perhaps, however is the novel justification of UK sovereignty, not based on Parliamentary sovereignty, but by reference to popular sovereignty based on a constituent power as evidenced in the referendum locks.  As Martin Loughlin has argued, the idea of a constituent power is almost completely alien to modern British constitutional practice.  Thus, this shift in the justifications of national sovereignty in Germany and the UK in the face of European integration qualify these claims as ‘late’ rather than ‘high’ sovereignty claims.

Sovereignty is still prevalent in our political vocabulary and is still providing the grammar of the practices of public law.  However, if we scrape beneath the surface, we can see how the grammar of this constitutive concept is itself subtly evolving.  This evolution is essential for understanding constitutional change in the contemporary world.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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David Mead: The Right To Protest Contained By Strasbourg: An Analysis of Austin v. UK & The Constitutional Pluralist Issues it Throws Up

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. The case it most closely resembles is DPP v Percy where a conviction under s.5 was overturned by the Divisional Court. Mrs. Percy unfurled a banner onto the ground outside a USAF air base in Norfolk, proclaiming “Stop Star Wars” to great consternation of serving personnel. Hallet J concluded that the magistrates had paid too little attention to the defendant’s rights to freedom of speech under Article 10 of the ECHR. In fact, charges may never have been brought. Under the new guidelines for public protest, published last week by the CPS, it is far likelier he would not even have been prosecuted. Various factors point to the public interest not being served: the protest was peaceful and was essentially only a minor infringement – though militating factors against were that it was probably not instinctive or done in the heat of the moment. All of this is aside from the potential liability of the university, as a “public authority under s.6 of the Human Rights Act, imposing what by any standard was a disproportionate penalty.

The other, more significant, event was the decision by the European Court of Human Rights in Austin v UK. This was the challenge to the decision by the Metropolitan Police decision to “kettle”, or contain, a group of some several thousand at Oxford Circus during the May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did eventuate), imposed a cordon under the common law power to keep the peace. The applicants – comprising one protester and three innocent bystanders caught up in the containment – lost their case in the House of Lords in 2009. Their Lordships held that the cordon, that lasted for up to seven hours, did not constitute a deprivation of liberty within Article 5 of the ECHR. That decision was subject to uniform critical comment (by David Feldman in the CLJ, by Helen Fenwick in Public Law and my own piece in the EHRLR), specifically the idiosyncratic reasoning that was – in our collective view – clearly out of line with the great weight of Convention jurisprudence. Those who followed the case through the domestic courts were convinced that Strasbourg would see legal sense and reject the idea, propounded largely by Lord Hope and Lord Neuberger, that issues of proportionality were relevant to the question whether Article 5 was even engaged. Previous case law determined it played a role only at a later stage, when it came to deciding whether any deprivation was arbitrary, and so unlawful.

Sadly, we were all mistaken. While the Court in Strasbourg did not adopt the analysis of the House of Lords wholesale there is in truth little to discern between the two. Strasbourg does not specifically advert to proportionality as being part and parcel of Article 5 at the engagement stage – and we must be grateful for that. Instead, because of its emphasis on considering the whole context in which the supposed deprivation occurred, the result is much the same. Certainly the analysis by the House of Lords, that intention and motive should be one of the factors in determining whether there had been a deprivation, comes to play centre stage at Strasbourg. Despite its view that “an underlying public interest motive…has no bearing on the question of whether that person had been deprived of their liberty” (para 58), the approach it then adopted – that the type and manner of containment and the general context – effectively did that. Where the police impose a cordon as the least intrusive and most effective means “to isolate and contain a crowd, in volatile and dangerous conditions” (para 66) that would not involve depriving someone of their liberty. If we temporarily put pure legal analysis to one side, it is hard not to see how being held for up to seven hours without access to food or water, without shelter or perhaps suitable clothing on a wet, windy day was not depriving someone of their liberty. In common sense terms, what more was needed?

While the Court was keen to highlight the specific and exceptional facts, it has promulgated – wittingly or not –  a revision of the scope of the guarantee contained in Article 5, something it was at pains to stress elsewhere as a fundamental human right. It is hard to see why, or how, the various traditional factors that have historically underpinned the Court’s analysis should suddenly come to encompass “the specific context and circumstances” (paras 59 and 60). Three points seem to be worth making. First, those traditional factors – type, duration, effects and manner of implementation – tend to be the ones that are either capable of objective determination or in fact are viewed from the perspective of the putative detainee. Nothing in the Court’s history indicates that we should view deprivation through the eyes of the state or putative captor. Neither does “type and manner of implementation” mean “context” as well (para 65). Secondly, one factor that swayed the Court was the analogy drawn with other “commonly occurring restrictions on movement”: containment of away fans after football matches or becoming trapped with nowhere to go after an accident on a motorway. These examples also informed the outcome in the House of Lords but do they stand up? Many football fans might well see themselves as having been deprived of their liberty. In any event, would an officious bystander not think that those “deprived” of liberty in those situations would be seen as implicitly consenting to such restrictions when they set off for the match or on their holidays? The same is far from true of those who are kettled, and certainly not those three applicants who were innocently caught up in the indiscriminate police action. Last, from a conceptual point of view, Strasbourg’s analysis is problematic. It places the burden of arguing that containment was not for public protection purposes or was for longer than necessary on the citizen. This is a reverse from the usual approach under the qualified articles 8-11.

The judgment in other parts speaks with a different voice: the Court noted of Articles 10 and 11, which did not form part of the applicants’ case, that “it must be underlined that measures of crowd control should not be used by national authorities directly or indirectly to stifle or discourage protest.” It is hard to square this with its decision on Article 5. As I have written elsewhere this edges us towards the hitherto unknown concept of an illegal gathering, dealing with protesters en masse based on suspicions of a few. This is clearly out of line with the well-known principle, stemming from Ezelin v France, that no one should lose their right to protest peacefully simply because others are violent.

Austin does not provide the police with a carte blanche to contain when it is no longer necessary in order to prevent serious injury or damage; the Court could not exclude “that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5§1”. That though provides little guidance for future development. If the Court is keen to preserve its subsidiary role, some better indicia for national courts and police would have been of greater assistance. Presumably those set out by Lord Neuberger in the House of Lords (at [57]) take on greater resonance? It is something of an irony that if the prescribed by law test were applied to the Court’s own judgments, many would be found wanting. This is no different: could an officer know with sufficient certainty as to foresee the consequences of imposing a cordon? It’s doubtful, surely?

The decision was not unanimous. There is much greater and sounder strength to the dissent of Judges Tulken, Spielmann and Garlicki. It is they, for example, who point out that in its decision two years before, Gillan v UK, the European Court seems to be firmly of the view (though it decided the case under Article 8) that a stop and search for no more than half an hour could well be enough to constitute a deprivation of liberty. It is hard to see how Austin could be distinguished, given the clearly greater coercion and (we must assume) similar feelings on the part of those contained that they were entirely deprived of the ability freely to move. It is the dissenting judges too who highlight that the decision – and its implication of context, proportionality and purpose – is not limited to pressing cases of public order such as those in the instant case. It would apply to all detention and incarceration claims unless in future the Court can be prevailed upon to see Austin as an exception. That simply means that the law as it stands is even more opaque.

There are entirely plausible reasons – though not necessarily good ones – for the holding in Austin but they point to wider (inter-)institutional concerns. The Court was betwixt Scylla and Charybdis. If they found for the applicants on what was in effect the preliminary question, and held that the kettling constituted a deprivation of liberty, the UK and so the police would have lost. None of the justifications in Article 5(1)(a)-(f) would have held up: there was no specific obligation that any of them needed to fulfil and neither was any being detained on suspicion of having committed a crime. It would necessarily mean that any operation for the policing of large-scale disorder and protest would have had the power to contain removed from its “toolkit”. Whether this is good or bad is not the point, though we might simply pause to note that the Toronto police have recently foresworn its use so there must be alternatives. The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted. There, the Court stated (para 171) that it did not accept the Government’s argument that

Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs 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.  

We see dotted around the judgment many references to the idea of deferring to national decision makers, in particular courts, and positively acknowledging the subsidiary nature of the Strasbourg institutions.

The problem though is this. Strasbourg has done the very thing that those on the Tory right, such as Dominic Raab, normally accuse it of when it rules in favour of applicants: illegitimately usurping democratic decision-makers and unjustifiable expansionism on a grand scale. Austin is very clearly a judgment predicated on its “living instrument” approach (see para 53), something decried by Raab in his Daily Telegraph piece, but with one eye on its reception. In Raab’s view “the Court’s judges [have] assumed the power to extend human rights into uncharted areas. Courts should interpret the law, but leave elected lawmakers to create it.” Aside from the fact that Austin is not an extension of human rights but a narrowing, all that is true here. There is no warrant in any previous decision for the balancing that the Court adopted. Indeed as is clear from A v UK, it flies in the face of precedent, such as it is at Strasbourg. Nor was there any need. As the three dissenting judges pointed out, as indeed did the applicants’ counsel, the drafters felt the correct balance between individual rights and community security had been struck by expressly limiting the purposes which a deprivation of liberty might legitimately pursue. The fact that holding against the UK would have thrown public order policing into disarray is no reason for what Raab would no doubt in any other context have called a “shifting of the goalposts” and “subverting democracy”. If proportionality and purpose were properly to be part of Article 5, shouldn’t that be a decision for Council ministers? Sauce for the goose indeed.

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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