Tag Archives: Role of the European Court of Human Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

 

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Alison L. Young: Prisoner Voting: Human or Constitutional Right?

young_alison-l2As is well known, in Hirst v UK (No 2) the Grand Chamber of the European Court of Human Rights concluded that Section 3(1) of the Representation of the People Act 1983, which removed the franchise from prisoners, was a disproportionate restriction of the right to vote found in article 3 of the First Protocol to the European Convention on Human Rights. After two consultation papers, further judgments from the European Court of Human Rights, a declaration of incompatibility from the Scottish courts, a series of criticisms from the Committee of Ministers of the Council of Europe and the Joint Committee of Human Rights, a change of Government and a House of Commons debate, the Voting Eligibility (Prisoners) Draft Bill was proposed and is currently being scrutinised by a Joint Select Committee. To add to the mix, we are awaiting judgment on the latest discussion of the issue by the UK Supreme Court, in R (Chester) v Secretary of State for Justice and McGeogh v Lord President of the Council, heard on 10 June, not to mention the adjourned case of Firth v United Kingdom.

This post will comment on one argument made by the Rt Hon David Davis MP and the Rt Hon Jack Straw MP, both in their contributions to the House of Commons debate on prisoner voting and in the oral evidence submitted to the Joint Select Committee on the Draft Bill. Their argument does not concern the merits, or otherwise, of prisoner voting, examining instead whether the issue should be determine by the European Court of Human Rights, or by the Westminster Parliament. Their claim is not a mere assertion of the sovereignty of the Westminster Parliament over the European Court of Human Rights. Rather, they argue that there are sound constitutional reasons for the Westminster Parliament to determine whether prisoners should vote. They argue that the European Court of Human Rights has taken a creative approach, going beyond an interpretation that focuses on the intentions of the authors of the European Convention on Human Rights. In doing so, the Court has gone beyond its constitutional ambit, in particular because there is no ability for any form of democratic response to the decisions of the European Court of Human Rights. Jack Straw, in particular, draws on Lord Hoffmann’s 2009 lecture to the Judicial Studies Board. Lord Hoffmann argued that the European Court of Human Rights was not suited to take decisions as to the way in which different rights should be balanced, or the application of general broad provisions of rights to very specific situations.

There are two issues here. What is the proper constitutional ambit of the European Court of Human Rights as a ‘European’ as opposed to a ‘national’ institution and what is its constitutional ambit as a ‘court’ as opposed to a ‘legislature’? The answer to this question appears to depend upon the nature of the right in question. The argument is that the European Court is constitutionally suited to decided broad or abstract rights, but specific applications of rights are more suited to national courts. The more a specific application of a right requires a balancing of different rights, or an assessment of different rights and principles, the more the issue is suited to resolution by legislatures. The European Court of Human Rights deals with abstract, fundamental ‘human’ rights. National courts and legislatures deal with how rights are applied to specific situations, or how rights and principles are balanced. This is a form of ‘constitutional’ right – assessing what ‘constitutes’ the specific application of a right according to the legal and constitutional principles prevalent in that national community.  We need to unpack these issues to see whether they form a sound basis for dividing power between the ECtHR and national courts and legislatures.

An overly creative approach?

Has the European Court of Human Rights been overly creative when assessing whether prisoners should be allowed to vote? Difficulties emerge when we try and apply this latent distinction between ‘human’ and ‘constitutional’ rights by looking at the distinction between broad rights and their specific application. Not only is it easy for this to collapse into a mere matter of degree, but the classification of the right may depend upon your particular focus. For example, if we are examining the issue as one of ‘the right of prisoners to vote’ then the issue becomes one that is more specific constitutional right and therefore for national courts. If we are examining the ‘right to vote’ then the issue concerns a broad human right, with the exclusion of prisoner voting needing to be justified as an exception to this broad right, a matter for the European Court of Human Rights to determine. If the justification of the restriction of the right to vote for prisoners depends upon the need to balance other rights and interests then this becomes a matter for national legislatures. As all appear to be sensible accounts of determining whether it is contrary to the ECHR to disenfranchise some or all prisoners, it becomes reasonable to argue whether the issue should be determined by the ECtHR, national courts or national legislatures or a combination of all three. It is hard to regard the ECtHR, therefore, as being overly creative.

Does a different picture emerge when we focus on the extent to which a specific application of a right requires a balancing exercise, weighing up different rights or balancing rights and interests? This distinction can be just as difficult to apply in practice. Does prisoner disenfranchisement depend upon the proper interpretation of the Convention right to vote, suited to the European Court of Human Rights, or does it depend upon a delicate balance of rights and interests and hence is more suited to national legislatures? If there is any consensus that emerges from cases examining prisoner disenfranchisement, it is that the right to vote is seen as a ‘core’ or ‘fundamental’ right, but that the issue of whether prisoners should vote requires a delicate balance of the right to vote against other rights and interests. This is illustrated, for example, in paragraph 84 of Hirst v UK (2). The European Court of Human Rights made it clear that its role was limited “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”. This assessment was repeated in paragraph 85 of the Scoppolla decision.  It is an approach running through the case law on prisoner voting in Canada, Australia and South Africa, as well as in the approach of the Court of Appeal in Chester. Here the courts do not grant a ‘margin of appreciation’ to signatory States, recognising their different constitutional and social cultures, instead granting a ‘wider discretionary area of judgment’ to the legislature. Again, it is hard to conclude here that the European Court of Human Rights has exceeded its proper constitutional role when deciding cases on prisoner disenfranchisement. Prisoner disenfranchisement is a complex and contestable issue. It is reasonable to disagree both as to whether those who commit serious enough offences should not be allowed to vote and, if so, how serious the offence need be to result in disenfranchisement. Many decisions are decided in favour or against the disenfranchisement of certain prisoners by a narrow majority of judges. The only certainty that seems to emerge is that blanket bans, disenfranchising all prisoners, are a disproportionate restriction on the right to vote. This conclusion is reinforced when we look at the outcome in the Scoppolla case. Here an Italian law removed the right to vote from prisoners convicted of a specific series of offences, or those sentenced to terms of three years or more, and removed the right to vote permanently from those sentenced to life sentences or terms of five years or more, subject to a procedural right for the individual to apply for his right to vote to be returned. The court concluded that this was not contrary to Article 3 of the First Protocol. The Italian law was not a blanket ban and it was within the margin of appreciation for the Italian government to regulate prisoner voting in this manner, the ban on voting relating to the serious nature of the offences committed.  There are cases where it is much clearer that the European Court of Human Rights has taken a creative approach than the cases on prisoner disenfranchisement.

Lack of a democratic override?

Let us assume that it was clear that the European Court of Human Rights had been too creative. Jack Straw’s argument is that creative judicial interpretations are far less dangerous in legal systems where there is the opportunity for a democratic correction by the legislature if courts provide too creative an interpretation of rights. The specific example he provides is that of a democratic override in the US, where an overly creative interpretation of the US constitution by the courts can be corrected by Constitutional amendment. If this is all that is required, then it is arguable that the ECHR does provide for a democratic response in a similar manner. The ECHR is a Treaty. Its provisions can be amended by those who have signed up to the Treaty. It may also be easier in practice to modify the Treaty establishing the ECHR than it is to amend the US Constitution.

It may be that Jack Straw has provided a particularly weak example; maybe he would have been better relying on the provisions of the Human Rights Act 1998. But, even if we require more of a democratic override than its mere theoretical possibility, Treaty amendment is not the only way in which democratic input can be given. First, it is possible for the United Kingdom government to appeal decisions to the Grand Chamber of the European Court of Human Rights, as it did in Hirst (2) When presenting its argument to the Grand Chamber, reference can be made to the legislative debate. The same opportunity occurs when the UK government makes representations to the court in cases against other States. The UK government made submissions to the Grand Chamber in Scoppolla v Italy. In doing so it referred to the House of Commons debate on prisoner voting. This was also referred to by the Court in its judgment. The Grand Chamber also does not decide issues in a vacuum. It is aware of the reaction of other legislatures, as well as on-going negotiations between the Committee of Ministers of the Council of Europe and the Governments of the Signatory States.  These may be a predominantly ‘governmental’ as opposed to a ‘legislative’ responses. But the way to correct this is through domestic arrangements, ensuring more legislative engagement with and accountability over Governmental responses and interventions.

Need for democratic override?

The strongest argument in favour of a democratic override is the recognition that the European Court of Human Rights may make mistakes. If prisoner disenfranchisement can reasonably be seen as an issue about the proper scope of the human right to vote, or a specific application of this broad right to a particular constitutional background which may or may not require a balancing of complex social rights and interests, then there is no wonder that there will be disagreement as to whether the Court is being too creative. But does this correction need to be by a legislature? First, if the issue is one of the application of a human right to a specific legal or constitutional situation, then  any correction needed may be better coming from national courts than national legislatures. We can see this when we look at one of the examples Lord Hoffmann n his 2009 lecture, Al Khawaja and Tahery v UK. Lord Hoffmann criticised the judgement of the European Court of Human Rights as too creative. The judgment was also criticised, and ultimately not followed in the Supreme Court decision of Horncastle, as the decision appeared to be based on a misunderstanding of the common law. In the appeal of Al Khawaja before the Grand Chamber, the Government relied on this misunderstanding, and the Grand Chamber referred to the judgment of the Supreme Court in Horncastle. The Grand Chamber  looked specifically at the broader provisions of English law and referred to the approach of other common law jurisdictions to this issue. It concluded that there had been no breach of the Convention with regard to the reliance on hearsay evidence in the conviction of Al Khawaja, but that the Convention had been breached with regard to its specific application to Tahery.  Second, there is no guarantee that the legislature is better placed to balance social rights and interests than the courts, particularly in areas as sensitive as prisoner disenfranchisement. The recent legislation removing the franchise from prisoners in New Zealand provides an interesting example here. Legislation was enacted to impose a blanket ban on prisoner voting, despite the statement of the Attorney General to the legislature that this would be contrary to the New Zealand Bill of Rights Act 1990 and to New Zealand’s human rights obligations in international law.  The legislation was enacted by a narrow majority and it is probably uncontroversial to remark that the arguments presented in favour of the Bill were not a prime example of the merits of democratic debate as a means of protecting rights.

Constitutional or Human – does it matter?

Regardless of whether we categorise the right of prisoners to vote as a ‘human’ or a ‘constitutional’ right, its resolution is complex. We can reasonably phrase the issue as one of the limitation of a fundamental human right, or as the specific constitutional right whose determination involves the balancing of complex social, moral and political philosophies. But, maybe in doing so we are hiding a more challenging issue. Problems arise because the right may be constituted by the values formed by reasoned reflection by the judiciary as to the content of fundamental rights and an assessment of whether the reasons provided for restricting a right hold water combined with a reasoned reflection of the legislature to balancing broader social and moral principles. Or it may just constitute what people think intuitively, or how they feel about granting the right to vote to prisoners – whether that be physically sick or otherwise.   The more the joint select committee continues to focus on obtaining informed advice, and the more the courts provide detailed reasoned for their conclusions, the more the potentially creative interpretations of the European Court of Human Rights can be corrected. Perhaps more importantly, the more we can ensure that the ‘constitutional’ right of all/some/no prisoners to vote will be worthy of the name.

Alison L. Young is a Fellow of Hertford College, University of Oxford.

Suggested citation: A. L. Young, ‘Prisoner Voting: Human or Constitutional Right?’  U.K. Const. L. Blog (27th September 2013) (available at http://ukconstitutionallaw.org).

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Helen Fenwick: Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights

helen1There has been a lot of commentary on the Report of the Bill of Rights’ Commission, and the ‘damp squib’ analysis of the Report (see Mark Elliott) as a whole is one most commentators appear to assent to (see eg Joshua Rozenberg for the Guardian here). My view in general is that the squib could reignite post-2015 if a Conservative government is elected, not in relation to the very hesitant ideas as to the possible future content of a Bill of Rights that the Report put forward, but in relation to its majority recommendation that there should be one (see further my previous post on the Commission Report here). If a BoR was to emerge under a Conservative government post-2015 I suggest that it would reflect the ideas of the Conservative nominees on the Commission which assumed a far more concrete form in the Report than the majority recommendations did (eg see here at p 192). This blog post due to its length is not intended to examine the probable nature of such a BoR based on those ideas in general, but to focus only on two aspects: the idea of curtailing the effects of an equivalent to Article 8 ECHR (right to respect for private and family life), and of requiring domestic courts to disapply Strasbourg jurisprudence under a BoR in a wider range of situations than at present under s2HRA (see Roger Masterman’s post on s2 on this blog here). In respect of the latter issue the potential impact of so doing will only be linked to selected aspects of Article 8 jurisprudence of especial actual and potential benefit to women.

Why concentrate on women as opposed to persons in general attempting to assert private or family rights against the state or non-state actors? That choice is partly due to the implications of EM (Lebanon) v SSHD in which the effect of deportation on the family life of a woman was found to be capable of creating a “flagrant breach” of Article 8. EM argued that such a breach would be created on the basis that shari’a law as applied to her in Lebanon would automatically grant custody of her child to the father, regardless of the child’s best interests, destroying the family life she enjoyed with her child. The basis for that finding is discussed further below. The successful claim in EM demonstrates that Article 8 can be deployed to prevent deportation to face specific instances of state-sponsored gender-based discrimination despite its apparently gender-neutral nature. The decision also led to an increased reliance on Article 8 in cases involving the deportation of parents; in that sense it lies behind the ‘attack’ on Article 8 by Martin Howe in the BoR Commission Report, in the Immigration Bill currently before Parliament, and by Dominic Grieve in 2010 (see my article, 2012 Public Law). Article 8 is concentrated on also because due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women (see further below), and unlike Article 14, which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights (Cam: CUP, 2006) Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Limiting the effects of a right to respect for private and family life in a BoR

In his separate paper in the Commission Report (A UK Bill of Rights) Martin Howe proposed limiting the effect of an equivalent of Article 8 in a new BoR by means of an accompanying clause. The clause would be to the effect that if legislation was passed determining the balance between respect for private life and various public interests, then the courts would not be able to give greater protection to privacy via the Article 8 equivalent than the legislation gave it. Such a clause would obviously be controversial since it would appear to oppose the principle generally underlying Bills of Rights – to protect persons against legislative power, thus countering majoritarianism. It would also attack the notion of universalism underlying Bills of Rights if the clause was aimed in part, which seems to be the intention, at limiting the privacy rights of non-nationals. It would disturb the carefully crafted compromise between Parliamentary sovereignty and protection for rights enshrined in the Human Rights Act, since in relation to this particular guarantee, Parliament would set out its limits in particular pieces of legislation, which would therefore be protected from the effects of mechanisms in a BoR equivalent to those of ss3, and 4 HRA – or at least such would be the intention. Thus, action by public authorities via an equivalent to s6 HRA infringing internationally recognised standards of respect for private life could be enabled by the clause, avoiding the possibility that once the legislation in question had been reinterpreted under an equivalent to s3 HRA, that would be found not to be required. Obviously this possibility raises many questions which cannot be addressed here regarding the appropriate separation of powers between judiciary and legislature and of the possible relationship between various parts of a BoR and the clause itself.

Such a clause as proposed by Howe could be deployed to limit the current impact of Article 8 in deportation decisions. Dominic Grieve has seen the decision in EM (Lebanon) as one that has resulted from a judicial desire to shadow Strasbourg under the HRA and go beyond Strasbourg (‘Proposals for a British Bill of Rights’ 8th March 2010 British Academy AHRC Forum). He had already indicated that this is a problem that he sees as one that could be remedied under a BoR (on conservativehome blog). Howe appeared to have in mind the case of SSHD v Respondent which concerned an Iraqi asylum-seeker, Aso Mohammed Ibrahim, who had brought about the death of a child, Amy Houston, in a driving accident, and fled the scene. He should have been deported previously, in November 2002, once his asylum application had failed but there were delays, meaning that he obtained a chance to establish family life in the UK (see comment here). An immigration tribunal later refused the application to deport him on the basis of his right to respect for his family life under Article 8 ECHR, a decision upheld on appeal (SSHD v Respondent). In a letter to the father of the girl in January 2010, Cameron promised that a future Conservative government would repeal the HRA, which he held responsible for the decision (reported in the Guardian). When the Court of Appeal refused leave to appeal the decision, the Immigration Minister Damian Green said “I will be raising the wider issues highlighted by this tragic case with the Justice Secretary for consideration by the commission on UK human rights law which the Government will be establishing later this year” (see BBC report). In October 2011 Grieve said: We think that the domestic courts have placed too much weight on the family rights of foreign criminals and we intend to redress the balance in the Immigration Rules (speech at Lincoln’s Inn, see transcript).

Theresa May recently said in the Mail on Sunday that new guidance approved by Parliament for judges had made it clear that a foreign criminal’s Article 8 right to a family life had limits, but she accused the judges of ignoring them. She said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported so that Article 8 could apply to block deportation only exceptionally. The amended Immigration Rules set out an extensive, framework providing a definition of the Article 8 balancing factors, but in Izuazu (Article 8 – new rules) Nigeria the Upper Tribunal found that the new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8. In the recent Queen’s Speech the government promised to “give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases”. In other words, the government intends to use primary legislation based on the Rules to change the weight given to the public interest under Article 8(2) when balanced against the rights of the individual in immigration cases under Article 8(1), “to limit the use of Article 8” (Adam Wagner in the New Statesman, and Mark Elliott on the UK Human Rights blog). A clause in a BoR expressly limiting the effect of a right of respect to private and family life would clearly appear to bolster such a change, as could the changes to the s2HRA equivalent put forward by Conservative nominees on the Bill of Rights Commission, considered below.

If a clause on the lines proposed by Howe was introduced in a new BoR it would protect provisions of the Immigration Bill intended to prevent judges from relying on Article 8 in relation to the deportation of non-nationals who have committed offences in the UK, but who may claim that respect for their family life under Article 8 will be breached if they are deported. But Howe’s clause would also apply to any future legislation that sought to make itself ‘Article 8-proof’. In other words, any legislation passed in order to limit the effect of an Article 8 equivalent in a BoR would, under a clause similar to the one proposed by Howe, prevent courts taking a more expansive view of the application of the Article 8 equivalent than the legislation itself allowed. The attempt to re-balance rights, downgrading Article 8 in relation to Article 10, in the HRA s12(4), signally failed (see for example Lord Justice Sedley in Douglas v Hello; Campbell v MGN). However, s12(4) did not direct judges to pay attention to the scope of Article 8 or 10 as delimited by specific pieces of legislation; further, had s12(4) been taken literally it would have conflicted with a well-established strand of Strasbourg jurisprudence which does not give Article 10 presumptive priority over Article 8 (see eg Von Hannover).

Further limiting clauses might be needed. The equivalent of Article 3 would also support recognition of positive obligations, including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands). But a statute finding that an Article 8 equivalent could not be engaged in relation to a particular set of facts could also be interpreted to mean that the pathway to Article 14 was blocked. Further, even if a Conservative BoR was introduced limiting the impact of Article 8, challenges could still be brought at Strasbourg unless the UK withdrew from the Convention (recently raised as a possibility by Theresa May (BBC News), but domestically the possibilities discussed below of reliance on Article 8 could potentially be stifled, depending of course on the nature of the legislation that was introduced.

Evading Strasbourg jurisprudence under a BoR

While the government is bound under Article 46 ECHR to comply with the final decisions of the Court, as a matter of international law, the executive might well prefer to delay and procrastinate in response, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might. Or a decision might be viewed as non-dispositive in a UK setting due to its fact-sensitivity. That tendency is evident in the Conservative predilection for proposing changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, possibly partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty.

There are signs that senior Conservatives prior to the 2010 election intended to use the BoR to seek to sever or weaken the connection with Strasbourg created by the HRA, s.2.  Dominic Grieve has argued that the HRA has been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended” (Telegraph). Instead, he said, a new BoR would make it clear that British courts could allow for UK common law to take precedence over decisions by the European Court of Human Rights in Strasbourg (Equality and Human Rights Commission).  Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. In his separate paper in the Commission Report (here at p 257), Mechanisms of a UK Bill of Rights, A Speaight recommended change to the formula of s2, echoing Grieve. He did not consider that s2 should be retained in its current form since he wanted to ensure that Strasbourg jurisprudence could not be treated as binding. Therefore he did not consider that the words ‘take into account’ in s2 should be retained – since so doing might still lead judges to come close at times to following Strasbourg. Martin Howe in his paper stated that he agreed with Speaight’s proposals as regards the s2 mechanism.

Introducing a BoR with a clause directing judges to limit the impact of an Article 8 equivalent as determined by any particular piece of legislation might place them in a dilemma if they did not find themselves within a recognised current exception to the Ullah principle as regards applicable, determinative Strasbourg Article 8 jurisprudence. Thus also directing the judges to disregard such jurisprudence might appear to be necessary to safeguard such a clause.

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking it might be argued that the ECHR in general has little to offer women (see for discussion Grabham and Hunter ‘Encountering Human Rights’) due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer Documenting women’s rights violations by non-state actors), human rights principles can be used as a campaign tool in influencing and mobilizing public and community opinion, and the use of campaigning methods by feminist advocacy groups as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk, by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

The possibility of using a BoR to limit the effect of a guarantee of respect for private and family life, combined with a degree of decoupling from the Strasbourg jurisprudence, could have various adverse effects which have been considered elsewhere; this blog’s concern is with the possibility that developing opportunities to safeguard and advance women’s interests using Article 8 ECHR might be stifled. So it proceeds to ask – in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list; also each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law, so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). As the Lords found, under shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and AF’s (her son’s) right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

Domestic violence – requirement of effective investigations and prevention

Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a “private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and therefore in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that while the authorities took some steps to protect the first applicant from her violent husband, A, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

Recently in the UK the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend Marc Chivers (see main findings here). Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence (see eg this recent report in the Guardian). Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8,2,3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Conclusions

This blog has suggested that limiting the effects of a guarantee of respect for private and family life in a BoR, combined with seeking to create departure from relevant Strasbourg jurisprudence, could in future stifle the impact of nascent developments in human rights principles under Article 8 ECHR that reduce gender-based harm to women. So doing could also potentially derail the effect of Article 8 in domestic Constitutional terms, given that the UK has a good record on procedural propriety but traditionally a poor one on privacy. Clearly, such an attempt might fail: the fact that judges were operating under an instrument termed a BoR might encourage an activist approach that sought to circumvent attempts at giving the ‘public interest’ the opportunity to negate a right in certain circumstances – the converse of the Strasbourg approach. Nevertheless, it is worth drawing attention to Howe’s proposed clause, and to the general interest shown by senior Conservatives in minimising the guarantee of respect for private life.

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

 

Suggested citation: H. Fenwick, ‘Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights ‘  UK Const. L. Blog (5th June 2013) (available at http://ukconstitutionallaw.org)

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

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

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

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

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

The roles s2 is expected to play

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

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

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

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

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

Should the Supreme Court go beyond Strasbourg?

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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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