It is probably an under-statement to say that the Human Rights Act 1998 is not Teresa May’s favourite statute. The decision to grant bail to Abu Qatada, following on from the decision of the European Court of Human Rights that it would contravene his Convention rights to deport him to Jordan, has added more grist to the mill of those who see the Human Rights Act as a mechanism that  – illegitimately – subjects the UK’s democratic decision-making power to the scrutiny of European judges. Not only does the European Court of Human Rights have the audacity to require the UK to remove its blanket ban on voting rights for prisoners (in the context of the lack of a detailed, recent democratic discussion in the Westminster Parliament surrounding this ban) but also the court will not allow us to remove a radical Islamic cleric from the country in time for the London Olympics. This is not just a court telling a democratic body what to do; it’s a European Court removing the sovereignty of the British people to decide on the rights they wish to protect – or so some of the media commentary would have us believe. Regardless of where one stands as to the relative importance of human rights and democracy, these events form part of the backdrop to two recent Supreme Court, Ambrose v Harris (Procurator Fiscal, Oban)(Scotland) and Rabone v Pennine Care NHS Foundation Trust, where the issue of who gets to decide on the content of Convention rights was discussed in the context of the interpretation of section 2(1) of the 1998 Act.

Section 2(1) requires the UK courts to ‘take account’, inter alia, of decisions of the European Court of Human Rights. The interpretation of section 2(1) is found in the dictum of Lord Bingham in Ullah that ‘[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’; known as the mirror principle.  In Ambrose and Rabone, the issue arose as to whether the domestic courts must or may interpret Convention rights beyond their definition found in decisions of the European Court of Human Rights when faced with a question to which there was either no answer or no clear answer from the Strasbourg court.

In Rabone, the more recent of the two decisions, Lord Brown did not challenge, but rather subtly reinterpreted the impact of the Ullah dictum, examining both the extent of the duty of UK courts to follow decisions of the Strasbourg court and their ability to go beyond decisions of the Strasbourg court. First, although UK courts are required to ensure that they do not protect Convention rights to a lower standard than that found in decisions at Strasbourg, where the UK courts are reluctant to follow the Strasbourg court, particularly where this would require a decision to be taken against the State, domestic courts should be ready to reject the complaint, unless there is ‘an authoritative judgment of the Grand Chamber plainly decisive of the point at issue’ [112]. In other words, UK courts need not always adhere to decisions of the Strasbourg court. Where a UK court is reluctant to agree with the decision of the Strasbourg court it reach a different conclusion from that reached at Strasbourg; but the UK court must follow an authoritative decision of the Grand Chamber.

This is merely a recognition and confirmation of past practices of the House of Lords and the Supreme Court. The House of Lords has not followed clear decisions of the Strasbourg court when these decisions can be distinguished, as was the case in Animal Defenders International. It’s also the case that the UK courts need not follow a decision of the Strasbourg court that is not taken by the Grand Chamber, as occurred in the Supreme Court decision of Horncastle. However, arguably, Lord Brown provides the courts with greater powers than those already recognised by the Supreme Court. In Horncastle, the Supreme Court decided not to follow a decision of the fourth section of the Strasbourg court that was on appeal to the Grand Chamber, in part due to the concern that the decision had failed to take sufficient account of English common law. Lord Brown suggests that the UK courts need not confine themselves to not following decisions currently under appeal, or even where the nature of the appeal refers to the misunderstanding of how Convention rights apply different in common law as opposed to civil law systems. He would appear to be suggesting that the courts possess a broader discretion, being able to disregard decisions that they are merely reluctant to follow.

Second, a court may decide that a Convention right applies beyond the current range of decisions found in the Strasbourg court. UK courts may go beyond the definition of Convention rights found in decisions of the Strasbourg court where to do so would be to follow a consistent line of previous Strasbourg decisions – as was the case in In re G (Adoption: unmarried couple). However, where there is no consistent case law from Strasbourg, although it is still open to the UK courts to develop the common law to protect human rights, the domestic courts should make it clear that this is a development of the common law and not a definition of Convention rights.

Lord Kerr, in Ambrose, appears to provide a stronger criticism of the Ullah dictum. He also recognised that domestic courts should have the power to define Convention rights when there was no clear decision from Strasbourg. However, his words appear to suggest that this is not a power of the court, but a duty:

‘I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken’ [128];

‘[i]t is therefore the duty of this and every court not only to ascertain “where the jurisprudence of the Strasbourg court clearly shows that it currently stands” but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view’ [129].

For Lord Kerr, three reasons support the existence of this duty. First, as a matter of practical reality, national courts are bound to face claims of Convention rights that have not yet been resolved by the Strasbourg court. They have no choice but to resolve these issues. Second, ‘as a matter of elementary principle’ [129] the courts have the duty to decide issues when they are placed before them. If the job of the Human Rights Act 1998 is to ‘bring rights home’, then it must be the duty of the domestic courts to protect Convention rights, regardless of whether they have been determined by the Strasbourg court. Third, courts have a statutory duty to do so. To fail to decide these issues would renege on their duty, as a public authority for the purpose of section 6 of the Human Rights Act 1998, to act in a manner compatible with Convention rights.

Despite their disparate conclusions, both Lord Kerr and Lord Brown justify their position in a similar way. For Lord Brown, his interpretation of the Ullah principle promotes ‘each of two frequently expressed aims; engaging in a dialogue with Strasbourg and bringing rights home’ [114]. For Lord Kerr;

‘[i]f the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.’ [130]

Two questions arise: (i) What is a Convention right? (ii) What do we mean by dialogue between the Strasbourg and the domestic courts?

What is a Convention right?

Three possible definitions of a Convention right underpin these judicial statements: (i) a right as defined by the Strasbourg court; (ii) a right that is ‘undeniable’ given a series of decisions of the Strasbourg court, despite a clear specific decision by the court on that point and (iii) a right found in the Convention as interpreted by the UK courts. For Lord Brown, the (limited) duty of domestic courts to adhere to decisions of the Strasbourg court clearly arises for the first definition. It may also arise for the second, where, despite a lack of a clear decision of the Strasbourg court, a series of decisions makes it undeniable that the Convention right exists. However, there is no duty of the court to adhere to the third definition. The court may develop Convention rights, where this would be in line with a series of decisions of the Strasbourg court. Where this is not the case, the court may go beyond the Strasbourg-defined Convention rights through an application of the common law; but not through an extension of the definition of Convention rights. In particular, it would be wrong for the court to make a section 4 declaration of incompatibility against legislation in such cases.

Lord Kerr appears to suggest that ‘Convention rights’ refers to all three definitions. He argues that UK courts renege on their duties as courts and on their statutory obligations under the Human Rights Act if they do not decide cases involving Convention rights and define the Convention right, even if there is no decision from the Strasbourg court. This argument only succeeds if we adopt the third definition. If we accept that Convention rights are ‘rights as defined by the Strasbourg court’, or ‘rights that are undeniable in the face of a series of decisions of the Strasbourg court’ then Lord Kerr’s arguments from elementary principle and statutory authority no longer apply. Courts have a duty to apply Convention rights – but if there is no decision on the point and no clear evidence of a line of case law making the existence of the Convention right undeniable, then there is no Convention right for the court to apply. For the courts to fail to decide that there is a Convention right is not to renege on their duty under section 6. Rather, they are fulfilling their duty, ensuring that they act in line with Convention rights as defined by Strasbourg. The applicant may argue that there should be a Convention right in these circumstances. But to argue for and to establish the existence of a Convention right are two different things.

Should the term ‘Convention right’ be extended to include ‘rights under the Convention as interpreted by the UK courts’? Lord Bingham’s dictum in Ullah rests on the assertion that it is for the Strasbourg court to determine the scope of Convention rights. This may be particularly true of the issue that arose in Al-Skeini, where Lord Brown suggested that the Ullah dictum could have ended ‘no less, but certainly no more’, which examined issues of extra-territoriality. The Strasbourg court should determine the issue of the scope of application of the Convention. There is a need for the scope of the application of the European Convention of Human Rights to apply in a uniform manner to all of the members of the Council of Europe. In the same way, the Strasbourg court should have the responsibility for determining the scope of Convention rights for the purposes of ensuring the members of the Council of Europe fulfil their Treaty obligations. It is the primary job of the Strasbourg court to ensure that the Treaty is enforced. But is the same true of those rights where the Strasbourg court affords a wide margin of appreciation? Part of the justification for granting a wide margin of appreciation is the recognition that different States may reach different conclusions in these culturally sensitive areas. It is at least arguable, therefore, that it is the job of the Strasbourg court to define the minimal content of Convention rights, but that it is the task of the States who adhere to the Treaty to determine the broader scope of application of Convention rights beyond this minimal content.

This raises a second issue – if it is for the States to decide; is it the job of the courts or of the legislature? Lord Bingham regarded the Human Rights Act as making it clear that this was a task for the legislature, not for the courts. Lord Hope expresses the same conclusion in Ambrose, disagreeing with Lord Kerr who appears to regard this as the job of the court. Lord Brown does not regard the court as having a duty to decide these issues, but argues that the courts have a power to do so, where this is in line with previous cases of the Strasbourg court. Where this is not the case, the court has the power to develop the common law separately from Convention rights.

How far should courts refine the definition of Convention rights? The answer to this question depends upon the interpretation of the Human Rights Act. Did the Act ‘bring rights home’ by providing a means for individuals to ensure that the UK adhered to its international obligations under the Convention without going to Strasbourg? Or were rights brought home as the Act provided the means for the UK to develop its own domestic protection of human rights, based upon but not confined to Convention rights as defined by the Strasbourg court? The latter would suggest that the courts do have a role to play in refining the definition of Convention rights within the margin of appreciation. The former would not. Is the Human Rights Act designed to provide as strong a protection of Convention rights as possible, whilst preserving Parliamentary sovereignty, or is it an example of a ‘Commonwealth’ model of rights protections, designed to facilitate democratic dialogue? The former may suggest that Parliament alone may go beyond Convention rights as defined by Strasbourg. The latter may suggest that courts do have a role to play in refining Convention rights, defining them beyond their current scope as found in decisions of the Strasbourg court. If section 4 facilitates dialogue, courts may develop rights beyond Strasbourg decisions without undermining Parliament. It is open for Parliament to decide not to modify or alter legislation declared incompatible by the court following its more expansive definition of a Convention right. Dialogue is facilitated as the court provides its reasons for expanding the scope of Convention rights and Parliament may provide its reasons for adhering to the decisions of the Strasbourg court.

What is dialogue between the Strasbourg and the national courts?

Far too much ink has been spilled trying to define dialogue and its application to the Human Rights Act 1998. The focus of this commentary is on the nature of the dialogue between the legislature and the courts. Less attention has been paid to dialogue between courts. Inter-court dialogue has been discussed with regard to the relationship between the national courts and the Court of Justice of the European Union, particularly within the context of constitutional pluralism. The European Union is described as pluralist as both the Luxembourg courts and the national courts assert authority to determine how European Union law is recognised in national law and the relationship between EU and national law. For the Luxembourg court, directly effective European Union law is sovereign, overriding national law. For the various national courts the inter-relationship between EU law and national law is not that straight-forward! These competing assertions of the ability to determine the way in which EU law and national law inter-act has been described as leading to a silent dialogue between the courts. The Luxembourg court is weary of extending European Union law beyond the limits of toleration of the national courts as, without the national courts, it would be impossible to ensure the uniform application of EU law. The national courts are weary of the extent to which they can reject EU law given the possible legal and political consequences. Such silent dialogue, for the more pessimistic, is reminiscent of the cold war where each court co-operates through fear of the consequences of failing to do so. For the more optimistic, it facilitates the creation of shared common principles between the Court of Justice and the national courts as each strives to respect the position of the other and reach a common understanding.

Despite being a model of possible inter-court dialogue, it does not seem to be what is desired between the national courts and the Strasbourg court. Despite some media commentary to the contrary, this dialogue is not best understood in terms of a clash of sovereign rights. The Strasbourg court makes no claim to the legal supremacy of Convention rights in the domestic laws of the States adhering to the European Convention of Human Rights. Dialogue between Strasbourg and the national courts is best understood as a means of refining the definition of Convention rights. For example, Horncastle provided an opportunity for the national courts to express its concerns as to the definition of article 6 ECHR in Al-Khawaja and Tahery v United Kingdom, a decision of fourth section of the Strasbourg court under appeal to the Grand Chamber. The Grand Chamber referred, inter alia, to the Supreme Court decision of Horncastle, changing the decision of the fourth section to recognise that the admission of hear-say evidence need not always breach article 6 ECHR. This exchange is a good example of the dialogue that both Lord Kerr and Lord Brown wish to facilitate. The objections of the domestic court focused on good reasons, examining the way in which other aspects of the common law may provide a means of mitigating the effects of admitting hear-say evidence, limiting when it can be admitted and assessing whether a conviction was made on the hear-say evidence alone. The objection was also timely, as the appeal was pending before the Grand Chamber when Horncastle was decided. The national court provided a reasoned account of its criticisms that could be referred to and evaluated by the Grand Chamber.

In a similar manner, dialogue between the two courts can be facilitated when national courts take account of decisions in the Strasbourg court, recognising the way in which the court has interpreted Convention rights in the past and predicting future refinements of the definition of Convention rights. To regard it as a duty of the court to develop Convention rights beyond those that are undeniable may hinder as opposed to facilitate dialogue. It may give the impression that the national courts were more concerned with asserting their sovereign right to determine Convention rights as opposed to engaging in a constructive dialogue to further refine the definition of Convention rights and their application to novel situations. Should national courts go beyond a predictable chain of reasoning of the Court of Human Rights? To do so may be interpreted as an assertion of the domestic courts to challenge the role of the Strasbourg court to define rights, yet this need not be the case where the Strasbourg court has provided a large margin of appreciation. The UK courts are not challenging the decisions of Strasbourg; rather the UK courts are refining Convention rights as defined by Strasbourg, ensuring their application to the specific background of the United Kingdom.

Should this only be done through the common law and not through a development of Convention rights? First, it may make it clearer to the Strasbourg court that the UK courts are not challenging Strasbourg’s authority to define Convention rights. However, this is not needed if the UK courts provide a clear explanation that their decision goes beyond decisions of the Strasbourg court, providing their own refinement of the Convention right within the margin of appreciation provided by Strasbourg. Second, to use the common law may be a means of ensuring that the court does not transgress its proper constitutional function. Parliament requires courts to read and give effect to legislation so as to comply with Convention rights, so far as it is possible to do so, empowering them to make a declaration of incompatibility when it is not. Surely this means that the court would be transgressing its constitutional role if it were to issue a declaration of incompatibility by providing a more extensive definition of a Convention right than that found in current decisions of the Strasbourg court? However, this conclusion relies upon the definition of Convention rights as those rights found in decisions of the Strasbourg court; or where we confine the constitutional role of the court to that of ensuring Parliament fulfils its obligations in international law, it being for Parliament and not the courts to expand upon Convention rights as defined by the Strasbourg court. If we regard the Human Rights Act as providing for a democratic dialogue model of rights-protections, then it need not follow that the court is excluded from playing a role in refining the definition of Convention rights. It would be open to the court to go beyond rights as defined in the Convention, but to do so through the issuing of a declaration of incompatibility as opposed to using section 3(1). This would provide Parliament with an opportunity to determine whether it wanted to follow the refined definition of the court, providing reasons for its conclusions. Parliament may rarely be provided with the incentive to refine a definition of a Convention right, when granted a large margin of appreciation, were the courts to merely define Convention rights as those rights defined specifically by the Strasbourg court.

Section 2(1) may seem to be of minor importance. However, its interpretation depends upon a resolution of important constitutional issues: the purpose of the Human Rights Act, the meaning of Convention rights and the relative constitutional roles of the legislature and the courts. It is hardly surprising that it has been the subject of attention in two recent Supreme Court decisions. It would be even more surprising if Ambrose and Rabone were the last words pronounced on the interpretation of this section.

Alison L. Young is a Fellow at Hertford College, Oxford.