UK Constitutional Law Association

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Mark Elliott: Human rights reform and the role of the Strasbourg Court

MarkI wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.

Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals

are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.

Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.

On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.

On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).

The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:

[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.

One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.

International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.

Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.

Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.

A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.

It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.

 

Mark Elliott is Reader in Public Law at the University of Cambridge (Twitter: @DrMarkElliott). This post was first published on Mark’s blog, Public Law for Everyone.

 

 

 

5 comments on “Mark Elliott: Human rights reform and the role of the Strasbourg Court

  1. Alessandra Asteriti
    July 23, 2014

    Very interesting, thanks. One small point though: I think you acknowledge the possibility that the ECHR, as any international treaty, can be amended, including by limiting the competence and power of the Court. So, the choice is not between status quo and exit, as you seem to imply when you state that the ECHR differs from the US Constitution, where amendment is possible, even if difficult in practice (and you contrast this with the position of the UK vis-a-vis the ECHR: either compliance or exit). Rather, the ‘voice’ option present in the US system applies, as you recognise later, for the Convention as well. Amendments are difficult in practice but possible in theory. The counter-majoritarian problem is, in my view, a simplification of the issue. The Court is part of a democratic, supra-national system; parliaments are part of a democratic, intra-national system. There is nothing inherently undemocratic about a court’s judgment, and indeed I find this a very dangerous statement in principle. It might not reflect the views of the current majority in parliament, but is that what we want?

  2. ObiterJ
    July 23, 2014

    Good piece if I may say so. On a very practical (and political) level, the Conservative Party is not interested in rights for the people. They have a right-wing agenda which is exemplified by their attacks on legal aid and judicial review etc. Given their way, they will end up taking the UK (or what is left of it should Scotland go independent) out of both the Council of Europe (and with that the ECHR) and the EU. Their aim appears to me to be an English fiefdom with a perpetual Conservative government and a people in thrall to their whim via naked Parliamentary Supremacy – in practice, Executive Supremacy because (most fo the time) they control Parliament.

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