Tag Archives: Role of the European Court of Human Rights

by | October 9, 2012 · 10:51 am

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 Hamza – Babar 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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by | June 3, 2012 · 8:33 am

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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by | April 25, 2012 · 6:32 pm

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

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

The February draft

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

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

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

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

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

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

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

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

Advisory jurisdiction: legal and political constitutionalism

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

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

Admissibility: the relationship between domestic courts and Strasbourg

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

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

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

The Human Rights Act

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

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

The bill of rights debate

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

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

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

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

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by | April 20, 2012 · 7:38 pm

Noreen O’Meara: Brighton rocked! Next steps for reforming the European Court of Human Rights

A blaze of controversy erupted over the disputed timing of Abu Qatada’s referral request to the Grand Chamber of the European Court of Human Rights this week.  Whilst raising a juicy legal question for proceduralists (examined incisively here and here) the inevitable media hysteria coincided with efforts to reform aspects of the Strasbourg court and the publication of fresh research on the UK-ECHR relationship.  The contrast of the media frenzy with the relatively low-key (by international standards) Council of Europe Ministerial Conference in Brighton was stark.  However, the resulting Brighton Declaration, formally agreed on 20 April 2012, may inject some measured logic into an often misinformed debate on the role and working practices of the European Court of Human Rights.

Lively legal debate was generated in the lead-up to the Brighton Conference despite limited leaked information on the successive draft Declarations.  NGOs shared a broad platform issuing two Joint Statements against more extreme proposals apparently seeking to curb access to the court.  Prior to the Conference, evidence from the Court itself seemed to share this cautious approach; its openness to considering (previously mooted) initiatives, such as extending advisory jurisdiction, tempered by calls not to rush any reforms—to allow more time for recent measures introduced via Protocol 14 to the Convention to embed in the Strasbourg system, and to assess their mid/long-term impact on the Court’s docket.  While Brighton represents the latest in a series of efforts to reform the Court—most recently in snowier/sunnier climes (Interlaken (2010) and Izmir (2011))—the UK government’s motivations for reform during its current chairmanship of the Council of Europe were expressed in terms which promised something altogether more radical.

On any reading of the final text, it is clear that the reforms in the Declaration have been substantially toned down (see initial overviews from Joshua Rozenberg and Antoine Buyse).  While the Brighton Declaration may have made just enough changes to allow the UK to claim some kind of political success, the reality is that the changes are—for the moment— marginal.  Will the Declaration deliver anything meaningful in tackling the Court’s voluminous caseload?  There is far more in the Declaration than a short piece can handle.  The impact (if any…) of adding references to subsidiarity and margin of appreciation to the Convention’s preamble will be ripe for discussion on the blogs and in the courtroom.  The comments below focus on select procedural issues.

Time-limit to apply to the ECtHR

The Conference agreed that the time-limit to apply to the Strasbourg court under Article 35(1) ECHR should be reduced by one-third, from six months to four.  On paper, this was the most likely of the tabled reforms to be agreed.  The proposal to reduce the time-limit in the original draft Declaration was lifted directly from the Court’s Preliminary Opinion, which had suggested a reduction to two/three/four months.  It will relieve many that the Conference chose to minimise the extent of the reduction.  However, critics of any change to Article 35(1) ECHR may argue that reducing the time-limit could lead to a greater number of knee-jerk applications, more poorly drafted/advised applications, or applications made without legal advice.  This change may well risk prejudicing applicants with genuine claims from mounting well-reasoned applications.  These risks may be real (and merit research) but unless a spike in applications or tangible evidence of such increased prejudice to applicants becomes apparent, it will be difficult to measure any impact of a reduced time-limit to apply.

Admissibility

Reformed admissibility criteria proposed in an early draft were a key concern to both the Court and NGOs.  The Brighton Declaration preserves the essential criteria, with the most criticised docket-control element dropped.  The proposal that applications should be rendered inadmissible unless a national court “erred” in interpreting Convention rights (para 23c of the earliest public Draft) has been abandoned.  The Declaration’s affirmation in para 15d that the Court should adopt “a strict and consistent approach” in rendering applications inadmissible under Article 35(3)(a) ECHR (inter alia) unless a “serious question concerning the interpretation or application of the Convention” is raised marks nothing new.  The track changes on a subsequent pre-Brighton Draft suggest this point particularly exercised the drafters, but the end result seems to be nothing more than a gloss on the existing admissibility criteria, and one which will not trouble the Court—which rightly remains firmly in control.  However, an amendment to Article 35(3)(b) ECHR (removing the words “and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”) was agreed by the Conference.  This would rectify what some regard as an anomaly with the “significant disadvantage” test introduced by Protocol 14 ECHR.

Some parts of the Brighton Declaration provide the kind of praise for the Court which has been in scant supply recently.  The Strasbourg court’s “extraordinary contribution” to the protection of human rights in Europe (para 2) is noted, with the impact of admissibility measures taken in the context of Protocol 14 is described as “encouraging” (para 6), the Declaration noting “with appreciation” the Court’s objective to dispose of the clearly inadmissible applications pending before it by 2015 (para 20b).  This recalls the Court’s observations in its Preliminary Opinion and emphasised by President Bratza in evidence to the Joint Committee of Human Rights that a range of measures taken by the Court have already begun to alleviate its backlog, and that further measures should help accelerate this process in the near future (for example, greater use of the “significant disadvantage” criterion, greater scope for the use of single judges).

The irony of multiple references to greater transparency and clearer communication of court procedures, admissibility criteria and time-limits may not be lost on Home Office lawyers awaiting the ECtHR’s decision on Abu Qatada’s referral request.  In calling for “stricter application” of the time limit in Article 35(1) ECHR and reiterating “the importance of the Court applying fully, consistently and foreseeably all the admissibility criteria including the rules governing the scope of its jurisdiction”, para 15b of the Brighton Declaration alludes to the fractious debate on subsidiarity behind the drafting process.  Yet in welcoming “the increased provision by the Court of information to applicants on its procedures and particularly on admissibility criteria” (para 15e) the Declaration identifies a significant issue.  The Court must ensure that its procedural rules and criteria are clearly drafted and publicized; the Declaration’s bid to reduce the time-limit for admissibility makes this all the more important.  In the slightly different Abu Qatada context of referral to the Grand Chamber, lawyers, academics and commentators have been split on the deadline issue.  There is no need for this level of confusion.

Advisory jurisdiction

One of the most interesting (if very loosely drafted) proposals survived the original draft and may yet introduce a new dynamic in relations between national courts and the ECtHR.  The possibility of extending the ECtHR’s rarely invoked advisory jurisdiction to enable highest national courts to seek ‘advisory opinions’ from the Court (in a manner somewhat similar to the preliminary reference mechanism in the EU legal context) managed to elicit fairly broad support.  Though this proposal is not new, it does appear to have gained momentum in the recent negotiations.

As framed in the original draft Declaration, the UK spin on the advisory opinion proposals seemed closely aligned to its approach to subsidiarity which underscored the negotiations (the proposed non-binding character of advisory opinions, and their proposed effect of preventing further recourse to the ECtHR in the same proceedings are clues in para 19d of the original Draft).  Before the Brighton Conference, the ECtHR duly published a reflection paper on the possibility of extending advisory jurisdiction.  Its paper sees the potential value of an advisory opinion mechanism in deepening the dialogue (curiously dubbed “institutionalised dialogue”, para 4) between national courts and the Strasbourg court.  Use of the word “institutionalised” perhaps implying that such dialogue may influence relations on a wider level than simply between courts.  Unsurprisingly, the UK-led view that use of the mechanism should prevent exercise of the right to individual petition in the same proceedings was lanced (para 24, reflection paper).  Although the Brighton Declaration is now silent on this particular point, it is surely unthinkable that an advisory opinion mechanism will be introduced on a basis which restricts the right to individual petition.

The Court effectively agreed to make the advisory opinion mechanism as optional as possible (introduction via an Optional Protocol to the Convention; restricted to highest national courts; limited rights of intervention for third parties) and saw the possible long-term impact which an advisory opinion mechanism may have on the Court’s docket.  However, there are clearly differences of opinion as to its merits both among High Contracting Parties to the Convention and at the level of the Court (the reflection paper notes differing views on whether such opinions should be binding, para 24).  Critics would also be justified in being skeptical as to whether the Grand Chamber will have the capacity in the short-medium term to handle the greater workload which the advisory opinion mechanism would clearly generate.  There is clearly still much to consider: as para 12d of the Brighton Declaration invites the Committee of Ministers to draft an Optional Protocol for a (very much optional) advisory opinion mechanism, its merits will be much debated in the foreseeable future.

No magic bullet

One lesson which can be drawn from the process of concluding the Brighton Declaration is that it was never going to magic away either the Court’s docket or its essential, authoritative role in human rights adjudication.  The hype (in some quarters, hostility) surrounding the negotiation process has not gone unnoticed at the Court.  However, the revised set of proposals in the Brighton Declaration seems to have largely neutralised the more political features of earlier draft versions.

A striking feature of the Declaration, which moves it away from the politicised aspects of the subsidiarity debate, is the prominence of concrete, pragmatic steps which should be taken to enforce the Convention at national level (Section A).  It is no secret that the Court’s backlog is dominated by applications from small minority of jurisdictions.  It is therefore no surprise that the Declaration views the role of the Council of Europe as “crucial” in supporting implementation of the Convention, and in its wider role promoting human rights, democracy and the rule of law.  This is something which the Council of Europe probably under-promotes, and which would merit being better understood.  Efforts to alleviate the Court’s backlog may start in Strasbourg, but its authority, legitimacy, and its success in tackling it also depend on developments much closer to home.

Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London

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by | March 5, 2012 · 12:04 pm

Mark Elliott: The draft Brighton Declaration, the Human Rights Act, and the Bill of Rights debate

As Noreen O’Meara has already posted, a draft of the Brighton Declaration concerning reform of the European Court of Human Rights (ECtHR) has leaked into the public domain. Of course, that draft may well turn out to be substantially different from the final text, which will reflect whatever consensus (if any) is reached at the High Level Conference on the Future of the European Court of Human Rights in April 2012 – billed by the UK Government as the “flagship event” of its chairmanship of the Council of Europe’s Committee of Ministers. It is nevertheless worth considering what the implications would be if the present draft were adopted: their potential significance, it will be argued, is considerable, and close scrutiny of their merits (or otherwise) is therefore warranted.

Noreen O’Meara’s post provides an excellent overview of and commentary on the present version of the text. This post, however, will focus on a narrower set of issues. In it, I will suggest that the draft Declaration, if implemented, would have the potential to reduce the extent to which the European Convention on Human Rights (ECHR) operates as a concrete restriction upon the legal freedom of state parties. This, in turn, would have implications for both the practical impact of the Human Rights Act 1998 (HRA) and the debate concerning the possibility of replacing it with a “UK Bill of Rights”. In order to develop this argument, it is necessary to begin with some observations about the HRA.

The Human Rights Act: legal and political constitutionalism; national and international law

The HRA, in two related senses, performs distinctive and important “bridging functions”. First, on the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism. By leaving the doctrine of parliamentary sovereignty undisturbed, the Act preserves Westminster’s domestic legal capacity to contravene the ECHR. At the same time, however, the HRA reduces the political scope for exercising legislative supremacy in such a way, not least by requiring courts to use the Convention as a benchmark by which to assess Acts of Parliament (as well as other forms of legislation and administrative action) and authorizing them to issue declarations of incompatibility when legislation is found wanting.

Second, on the vertical plane, the HRA creates a site of interaction between national law and politics, on the one hand, and international law, on the other. One of the defining features of the HRA is that it is not as such constitutive of rights, in the sense of creating or enshrining them in domestic law. Rather, the Act is a conduit whereby the Convention rights are given effect in UK law in a variety of ways and subject to certain limitations – including, most obviously, the capacity of the Westminster Parliament, as matter of national law, to override Convention rights by means of sufficiently clearly worded legislation. As such the HRA implicitly acknowledges, but makes no explicit attempt to resolve, the tension between the legally binding nature of the Convention rights as a matter of international law and the legal freedom of the sovereign UK Parliament to override those rights as a matter of national law.

It is in the interaction of its horizontal and vertical bridging effects that the potency of the HRA lies: the political pressure exerted by a legal judgment that yields a declaration of incompatibility is attributable in part to the fact that, for all that such a declaration is non-binding in terms of national law, it identifies a breach by the UK of norms that are binding upon it in international law. This helps to explain why, for instance, declarations of incompatibility routinely result in remedial legislative action – and why, therefore, the HRA is a more powerful constraint than its status as a non-supreme law bill of rights might be taken to suggest.

The role of the European Court of Human Rights

On this analysis, the success (judged from the perspective of those who welcome rights-based legal restraint of political authority) of the HRA model lies in the way it enables norms that are binding in international law to penetrate the domestic sphere, thereby eroding the distinction between the legal and political realms erected by the orthodox notion of legislative supremacy. This analysis of the HRA is, however, heavily contingent upon certain assumptions about the nature and legal status of the Convention rights themselves. In particular, it presupposes that those rights are characterized by a certainty and precision that gives them real bite. And this, in turn, requires the existence of a mechanism whereby the (inevitably) vaguely-worded text of the Convention may be imbued with specific meaning. In this way, then, the role of the ECtHR is crucial to the HRA model. By standing as the ultimate and authoritative adjudicator upon the meaning of the ECHR, the Court imbues the Convention rights with a legal crispness and practical force that international human rights norms do not inevitably possess.

For example, compare the International Covenant on Civil and Political Rights (ICCPR). While the Human Rights Committee monitors the implementation of the Covenant by state parties, it cannot be said to perform an adjudicative role equivalent to that of the ECtHR. I have argued elsewhere that this may help to explain the differential impact of New Zealand’s Bill of Rights Act 1990 (BORA) and the UK’s HRA. The BORA and the HRA are superficially similar, in that both seek to give greater effect to international human rights instruments – the ICCPR and the ECHR respectively – while neither equips courts to invalidate or set aside incompatible primary legislation. Yet lawmakers in New Zealand are substantially more willing than their British counterparts to enact or maintain legislation that is (in the view of the courts or the Attorney-General, who has a formal compatibility-reporting role under the BORA) incompatible with relevant human rights norms. Part of the reason for this may well be that judicial (or other) views as to compatibility in New Zealand possess less impact because they do not – in the way that a declaration of incompatibility under the HRA does – anticipate the likely outcome of legally binding supranational adjudication. In that way, the ICCPR rights, as they pertain in New Zealand, are softer in nature – and so more susceptible to legislative infringement. Put another way, while the BORA serves as an interface between legal and political modes of constitutionalism at the horizontal level, it does not serve a vertical bridging function equivalent to that of the HRA because of institutional differences between the international human rights regimes to which the two pieces of legislation relate.

The draft Brighton Declaration

Against this background – as I have suggested in a previous post on this blog and, with colleagues, in a submission to the Commission on a UK Bill of Rights – the scope for reforming the HRA, or for replacing it with a Bill of Rights, is limited: the Convention rights are binding upon the UK, and their meaning and application are policed by the ECtHR. However, the position would be different if the Brighton Declaration, in its current form, were implemented. This is so because, for three interlocking reasons, it would reduce the capacity of the ECtHR to invest the Convention rights with precise legal content and to secure their practical application.

First, the Declaration emphasizes that national authorities have primary responsibility for securing the Convention rights, in that the Court’s role is “subsidiary”. The margin of appreciation doctrine is also emphasized to an extent that outstrips its present role in the Court’s jurisprudence: each state party, according to the Declaration, enjoys a “considerable” margin (generally, it is implied, not just in particular contexts) and the Court’s role is to “review decisions taken by national authorities” to ensure that that margin is not exceeded. It therefore appears that cases that got as far as the Court would, under the Declaration, be less likely to result in a judgment adverse to the state party. In that sense, the Convention rights would be rendered less concrete, or less demanding.

Second, the Court’s role would, in some cases, change. At present, the Court determines the meaning of the relevant provisions of the Convention and applies them to the factual matrix of the case. Such judgments are binding under Article 46(1). They also result in concrete pronouncements by the Court about the compatibility of domestic law with Convention norms, thereby in effect fixing national authorities with an obligation to amend such law in order that they may fulfill their duty under Article 1 to “secure to everyone within their jurisdiction” the Convention rights. However, the present text of the Declaration envisages that the Court should be enabled to deliver “advisory opinions”. Under this system, “point[s] of interpretation” could be referred by national courts to the ECtHR, the latter’s role being to “give its opinion on the point of interpretation” while “leaving it to the national court to apply this to the facts of the case”. Such opinions would harness neither Article 46(1) nor Article 1: they would “not be binding”, and nor (given the limitation of the Court’s role to the interpretation of the Convention) would they result in any concrete pronouncement about the compatibility of the relevant national law (or practice). And although the advisory opinion regime would not replace, but would rather sit alongside, the right of individual petition, the Declaration enters a significant caveat: that when such an opinion is “applied” by the national court, the individual concerned “should ordinarily have no further right to make an application to the Court on the same matter”.

Third, fewer cases would reach the court at all. If implemented, the Declaration would result in changes to the admissibility criteria. Article 35 would be amended “to make clear that”, absent exceptional circumstances, an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”. Exceptional circumstances would be those in which a national court had “clearly erred”, and those in which the case raised “a serious question”, concerning the interpretation or application of the Convention rights.

Such changes to the ECHR regime and the Court’s role within it would have potentially significant implications for the operation of the HRA. As explained above, the relative potency of the HRA is attributable in large part to the shadow which the prospect of binding supranational human rights adjudication casts over the domestic notion of parliamentary sovereignty. The HRA enables that orthodoxy to be at once both formally retained and substantively disrupted. But that is possible in the first place only because domestic courts’ non-binding judgments foreshadow the (strong) possibility of binding judgments by the Strasbourg Court. The three features of the draft Brighton Declaration mentioned above each reduce the probability of such judgments being rendered.

Consider, for instance, a situation in which a domestic court issued a declaration of incompatibility under s 4 of the HRA. Under the regime envisaged in the draft Declaration, the force of such a declaration would probably be less than at present. If the declaration of incompatibility were issued following an advisory opinion by the Strasbourg Court, it would, at least in some circumstances, be open to the Government to contend that that Court might not have concluded (had the matter reached it otherwise than via the advisory route) that domestic law or practice was incompatible with the Court’s interpretation of the Convention. Moreover, the individual concerned would presumably be unable decisively to challenge that view because once the Strasbourg Court had issued an advisory opinion that had been applied in domestic legal proceedings – which it would have been – the Court’s door would be closed. Even if the proposed advisory jurisdiction were not in play, a declaration of incompatibility’s potency would potentially be diminished by the proposed revisions to the admissibility criteria: since the matter would already have been examined by a national court (in proceedings culminating in a declaration of incompatibility), an application to the ECtHR would, absent exceptional circumstances, be inadmissible. And underpinning all of this would be the renewed emphasis on the ECtHR’s subsidiary role and the “considerable” width of the margin of appreciation. The upshot of these changes, then, would be to render the Convention rights less concrete in a way that would doubtless be attractive to a Government that wished to ignore a domestic declaration of incompatibility. Put simply, there would be greater scope than there presently is for the Government to argue that the ECtHR might not see things in the same way as the domestic court, while enjoying the luxury of a procedural regime that reduced the likelihood of the ECtHR pronouncing upon the issue either at all or in a manner sufficiently decisive to remove the scope for advancing such an argument.

The Bill of Rights debate

The debate (such as it is) concerning the replacement of the HRA with a “UK Bill of Rights” is very substantially constrained – whether or not politicians are prepared to admit it – by the simple fact that whatever domestic human rights legislation does or does not say, the text of the ECHR remains the legal bottom line for as long as the UK is a state party to it. Once that point is appreciated, the scope for “reform” of the HRA is very limited – unless it is accompanied by change at the ECHR level. Viewed thus, the draft Brighton Declaration assumes the form of the missing piece of the bill-of-rights debate jigsaw. If the role of the ECtHR were diminished in the way envisaged by the Declaration, the Convention rights themselves would taken on a less obviously prescriptive character. Lighter-touch review by a harder-to-access Court some of whose judgments would become non-binding would render the content of the rights more contestable. As a result, the Convention regime’s capacity to imbue the HRA with real legal bite would be reduced. Alternatively, the features of the new regime could be harnessed more explicitly by means of a reworked bill of rights. For instance, national courts might be required to take account of the UK’s “considerable” margin of appreciation, bearing in mind that – at least according to paragraph 17 of the draft Declaration – the doctrine is based not just on the cultural dislocation of the ECtHR as an international court, but also on the democratic credentials of elected legislatures. National courts might also be legislatively encouraged – or required – to use the advisory opinion mechanism, thereby reducing the prospect of binding judgments rendered by the ECtHR in cases brought by means of individual petition.

For those who regard the HRA as a legislative straight-jacket that undermines Parliament’s ability to legislate in the public interest, the possibilities raised by the draft Brighton Declaration, and the scope they may in turn afford for the weakening of the HRA model, will doubtless be attractive (if modest) ones. Even for those who are less skeptical about the enforcement of human rights via the ECHR/HRA mechanism, there is reason to welcome aspects of the draft Declaration. Certainly, it is right that the process of enhancing the Court’s capacity to manage its caseload should be taken forward. And ECHR/HRA enthusiasts might equally welcome the recognition in the draft Declaration of the need to be sensitive to the fact that the Strasbourg Court should not claim a monopoly of wisdom when it comes to determining the meaning of the Convention text. It should, however, be recognized that the “streamlining” measures proposed by the draft Declaration would have real consequences for the Court’s substantive role, not just the way it operates at a procedural level.

As an interface between the domestic and ECHR legal systems, the HRA’s potency turns, to a large extent, on the nature of the Convention regime. And as a bridge between the realms of (human rights) law and (legislative) politics, the HRA’s capacity to facilitate the disruption of the latter by the former depends, in large part, upon the obligatory character of the transnational regime for which the Act serves as a conduit. Reform of the ECHR and its associated machinery along the lines envisaged in the draft Brighton Declaration would, of course, have implications across Europe. But it possible to assert, without undue parochialism, that it might have particular significance in the UK, where the Convention serves – and, the “bill of rights debate” notwithstanding, is likely to continue to serve – as the closest approximation there is to a constitutional bill of rights. Against that background, the Brighton process deserves the sort of scrutiny that would – in any country with a “normal” constitution – accompany a proposal to amend the constitution itself. It may very well be that none of the aspects of the present draft that are discussed above will find their way (at least in their current form) into the final version of the Declaration. It is important, however, that those arguing for the inclusion of those aspects of the draft – including, presumably, the UK Government – are required to face up to, and defend, their potential implications.

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

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by | March 1, 2012 · 12:42 pm

Noreen O’Meara: Reforming the European Court of Human Rights: The Draft Brighton Declaration

Efforts to reform the European Court of Human Rights are defining the UK’s chairmanship of the Council of Europe, a six-month term which comes “once in a generation”.  With the docket and adjudicatory problems affecting the Strasbourg court well-known, the UK is seeking to build on previous recent efforts to streamline practices at the Court, most notably measures agreed at high-level conferences at Interlaken (2010) and Izmir (2011).

In contrast with the public and sound-bite infused speech in which Prime Minister David Cameron outlined the UK’s motivations for using its chairmanship to advance reform of the European Court of Human Rights last month, the Draft Brighton Declaration was finally leaked yesterday (first in French, later in English), following its transmission to High Contracting Parties last week.  The Draft Declaration will be subject to intense negotiations in the lead-up to the Brighton Ministerial Conference on 18-20 April 2012.  Indeed, there will be much to discuss: the draft, informed by discussions within the Council of Europe, puts (almost) everything in relation to the Court’s adjudicatory role, and national courts’ relationship with it, on the table.  A sign, perhaps, that the government appreciates the limited prospects of securing unanimous agreement on many of the aspects covered by the Draft.  Nevertheless, the proposals raised by the Draft Declaration make interesting reading, particularly in light of the ECtHR’s Preliminary Opinion of the European Court of Human Rights adopted on 20 February 2012.  This post focuses on a select few.

Proposals on subsidiarity?

The most prominent feature of the Draft Declaration is its emphasis on ‘subsidiarity’.  In his recent speech, David Cameron emphasised strengthening subsidiarity, promising proposals “pushing responsibility to the national system” in order to “free up the Court to focus on the worst, most flagrant human rights violations”.

The Draft seeks to do this via a range of methods.  First, paragraph 19(b) calls for the enhancement of the principles of subsidiarity and the margin of appreciation “by their express inclusion in the Convention”.  As Antoine Buyse has noted, it is unclear what impact, if any, including these principles would have in practice.  It would be trite to recount the extensive case law showing that the Strasbourg judges are conscious of and respect the principle of subsidiarity.  Most recently, and in the UK context, the Grand Chamber’s judgment in Al-Khawaja on the use of hearsay evidence showed a clear example of dialogue in action between the UK Supreme Court and ECtHR.  Interestingly, the Draft mentions a range of ways in which this dialogue could be enhanced, though judgments, the work of the Steering Committee for Human Rights and though Government influence on amending Rules of Procedure of the Court.

Secondly, a raft of measures are suggested in Section A aimed at strengthening national systems through their implementation of the Convention.  Some proposals are laudable (internal checks on compatibility of legislation with the ECHR (para 12(c)(i) and (ii)); new domestic remedies where appropriate (para 12(c)(iv); greater training for public officials (para 12 (c)(vii) and (viii)).  There is much scope for rationalising domestic human rights adjudication in the jurisdictions of High Contracting Parties.  However, it is surprising that more is not made of the remedies point (perhaps being a subtle reference to the inappropriate “small claims court” sound-bite in Cameron’s speech).  Making better provision for remedies at the national level may well avoid recourse to Strasbourg for many claimants.  But what about the appropriateness of remedies awarded by Strasbourg?  Is ‘just satisfaction’ just?  The absence of a consideration of remedies at both national and ECtHR levels is an odd omission—deferred for future consideration in the longer-term (para 42(e)(iii)).

Thirdly, measures which tie subsidiarity in with jurisdiction and docket control.  The Draft’s proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of the case. Presumably modelled on the preliminary reference system in the EU legal order, this human rights version looks, at first glance, a neat way of clarifying “the respective roles of the Court and national judicial systems” (the UK government’s express motivation – para 19(d)) and of engaging highest national courts even more deeply in a human rights dialogue with Strasbourg.  However, the mechanism is couched in language which could harm both comity and access to justice.  Its terms are currently loose: the mechanism itself would be an opt-in; highest national courts would have (seemingly) unfettered discretion to refer; advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  This initiative may prove workable (with more robust terms) but would do little to alleviate the Court’s docket.  Transposing a version of the preliminary reference mechanism to a purely human rights context requires more thought.  As such, the ECtHR has indicated that it will issue a ‘reflection paper’ on the merits of an advisory opinion mechanism in due course.

Taking a sledgehammer to crack admissibility?

The measures which may attract debate in inverse proportion to their likelihood of being accepted are the Draft’s proposals on admissibility.  The Draft attacks the admissibility problem two-fold.  The first suggestion would reduce the deadline for making an application to the ECtHR from six months to either two/three/four months from the date domestic remedies have been exhausted.  The sledgehammer approach may not impact litigants in a jurisdiction where they are likely to be promptly advised of the merits or otherwise of making an application to Strasbourg, and where support from NGOs may be forthcoming.  Across the High Contracting Parties, this is not the norm.  Moreover, simply cutting the deadline to two, three or four months is easier than enquiring into the working practices at the Court in terms of its handling of admissibility (see Ben Jones’ assessment and Andrew Tickell on mythbusting admissibility).  On this specific point, however, the ECtHR will prove welcoming: its latest observations indicating that it may be possible to reduce the six-month time limit “considerably” having regard to time-limits in place in national jurisdictions.

Perhaps most controversially, the Draft proposes rendering applications stemming from cases considered by national courts inadmissible unless (i) the national court “erred” in interpreting Convention rights; or (ii) the application “raises a serious question” relating to the interpretation or application of the Convention (para 23(c)).  This stretches far beyond simply making efficiency changes in Strasbourg, or efforts to transform the relationship between national courts and the European Court of Human Rights.  This could change the character of the Strasbourg court, and potentially strikes at the heart of what the court is meant to offer and achieve: access to justice for the adjudication of human rights violations.  Reforms adopted must not indirectly dilute the accountability of states.  There are possible risks to judicial comity and access to justice in the proposals as currently framed.  However, this is a debate the Strasbourg court rightly wants to have – its observations expressly encourage the High Contracting Parties to “identify solutions” relating to admissibility and docket control.

Overall impression

Whilst certain other reform measures (particularly those relating to the appointment of judges, and support for the Council of Europe’s work in implementation of the Convention) are logical and may have mileage, the overall impression at this early stage of negotiations is somewhat underwhelming.  Opportunities to make recommendations regarding resources, and address remedies (comprehensively) appear to have been missed.  Given the enthusiasm for reforming the court—and reaffirming support for the strong ECtHR which citizens need—it is a shame that many of the suggestions, at least in their draft form, either lack rigour or appear misplaced.  To that end, the ECtHR’s own pre-Brighton observations adopted on 20February also offer some pragmatic suggestions tailored to specific types of cases.

Notwithstanding some shortcomings, this is a varied road-map for reform: its thematic range and hard-line attitude in favour of promoting human rights adjudication in national courts may do no harm in shaking up the debate on the future role and practice of the European Court of Human Rights.  It’s a debate which, building on agreements at Interlaken and Izmir, may finally be maturing.  It will be interesting to see how much of the Draft Declaration survives April’s Brighton Conference, and how the current proposals will evolve.

Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London

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