Now that the furore of the Scottish independence referendum has passed, the attention of politicians and media has once again turned to the dangers of the European Court of Human Rights (ECtHR). In his speech to the Conservative Party Conference in late September, Prime Minister David Cameron stated that the ECtHR needed “sorting out”. Three examples of its judgments were used to support this point: the prisoner voting litigation; the limits on deporting suspected terrorists, including Abu Qatada; and the extension of the HRA to the “battle-fields of Helmand”, an issue which the ECtHR has not directly adjudicated upon although it has given judgments concerning events in Iraq. Shortly after, the Conservative Party released its proposals for changing Britain’s human rights laws. Central to this is altering the relationship between the UK and the ECtHR so that its judgments are no longer binding over the UK Supreme Court and that it is no longer able to order a change in UK law. As any law student will know, this would be a waste of time as neither is currently possible in our dualist legal system. The judgments of the ECtHR are only binding in international law. To support these proposals, five examples of ECtHR judgments are given: prisoner voting; artificial insemination rights for some prisoners; limits on the deportation of foreign nationals who have committed crimes; and limits on the deportation of foreign nationals generally. The fifth example is the recent judgment on whole life tariffs which was misleadingly and erroneously portrayed as a decision that murderers cannot be sentenced to life imprisonment. It is clear that the Conservative Party is not expecting to receive votes from prisoners (who have no vote anyway), foreign nationals or members of the armed forces who also enjoy the protection of human rights law on the “battle-fields of Helmand”.
The idea that the ECtHR is a dangerous meddler in national affairs has gained enormous currency in recent years bolstered by a sympathetic media. In late August journalist Craig Woodhouse, reported in The Sun that the ECtHR ruled against Britain in “three out of the five cases it hears” and that “terrorist, rapists, killers and paedophiles” had all won at the Court, which “overrules Britain once every 47 days on average.” The most recent judgment of the Court concerning UK rules on prisoner voting, where it found a violation of human rights but declined to award the legal costs claimed by the applicants, was reported in The Daily Mail to be the direct result of the Court being “rattled by Cabinet Ministers threatening that Britain could leave”. Politicians from all parties are willing to jump on the bandwagon. In August, Jack Straw wrote in The Times that the prisoner votes and night flights judgments of the Court illustrated, it had “taken unto itself decisions that it should, under its own doctrine, leave to domestic courts and parliaments.” Judges have also descended to the arena. Lord Neuberger, President of the Supreme Court, recently told a conference audience in Melbourne of his suspicions that UK judges were too ready to make assumptions about the position of the ECtHR and then to follow it. And in November 2013 Lord Sumption, a Justice of the Supreme Court, gave a lecture in Malaysia in which he noted that the Court “undermined” the democratic process.
The prisoner voting litigation enables opponents of the ECtHR to easily create a false impression as to its “dangerousness” which it was not as easy to do prior to the first judgment on the question in 2004. It is an issue which is easily understood and captures the public imagination. Just to mention it gets everyone fired up and even encourages spirited debates in undergraduate Public Law tutorials. It is not legally complex and can be presented as requiring a simple “yes or no” answer. Any resolution may also have an impact for a large number of prisoners. In a consultation paper published in April 2009, the Ministry of Justice stated that were all current prisoners serving less than four years to be enfranchised, that would be 28,000 prisoners. However, judgments like this from the ECtHR are extremely rare as the examples recently provided by David Cameron and in the Conservative Party proposals demonstrate. Since 1966, when the UK accepted that individuals could apply to the ECtHR, it is has given more than 500 judgments where the UK was the respondent State. However, those intent upon bashing the Court can usually refer to no more than five, and always include its judgments on prisoner voting. Jack Straw’s recent effort was particularly poor. The only example additional to prisoner voting which he could produce was the Heathrow night flights case, a judgment given in 2003 where the facts took place prior to the coming into force of the Human Rights Act (HRA) and the applicants were not actually able to seek a remedy before the national courts. Furthermore, this is an issue which does not produce a predictable response, particularly from those living under a busy flight-path as obviously Jack Straw, or his constituents, do not. The facts of this judgment would not inspire hatred for the ECtHR in most, but sympathy for the applicants many of whom eventually decided to move from their homes, at considerable cost, to escape the noise.
Rather than a clear illustration of the ECtHR overstepping the boundaries, the judgments utilised by the Conservatives and others are a clear illustration of the failure of those constantly criticising the ECtHR to provide the full picture. It is not the case that this information is inaccessible or available only to lawyers. The ECtHR is particularly good at keeping records and publishes its judgments almost instantly on the website HUDOC for all to see. Its last country profile of the United Kingdom was completed in September 2014. The impact of the Human Rights Act on the applications made to the Court is obvious. In 2012 1,734 applications were allocated to a judicial formation (for admissibility to be determined). By 2013 this had dropped to 913 and the figure given for the period January to July 2014 is just 395 applications. The vast majority of applications against the UK are declared inadmissible or struck out.
It is not clear what period the figures reported in The Sun actually came from and it is also important to note that in its statistics, the ECtHR counts applications, not judgments. A single judgment concerning the UK may be a judgment in the case of two or more applicants. However, for the purposes of consistency, judgments will be the measure adopted here. In 2012, 23 judgments where the UK was the respondent State were given. By 2013 this had dropped to 13 and the figure for January to the end of September 2014 is 7 judgments. Of the 13 judgments concerning the UK decided in 2013, violations of the ECHR or Protocol No.1 to the ECHR were found in eight judgments, no violation in five. If the research referred to in The Sun is limited to the year 2013, it would be possible to state that the ECtHR ruled against Britain in 8 out of the 13 cases it heard that year, or close to “three out of five” as reported. However, if the research is limited to this year, 2014, where of the seven judgments concerning the UK, violations were found in three, this would be two out of five. Similarly in 2012 violations were found on the part of the UK in 10 of the 23 judgments given, once again, two out of five.
Judgments can be chosen and statistics manipulated to support whatever the author would like. But what it is most important to appreciate is that the judgments of the ECtHR are not all the same as the prisoner voting judgments. It is extremely rare for the ECtHR to find a violation of the Convention where rectifying the breach would involve a change to an Act of Parliament with repercussions for a large number of individuals. This is the exception, not the norm and most of the judgments of the ECtHR are not as clear cut, or as appealing as a tabloid headline. Often the facts, and the judgment, are extremely complex. A closer look at all of the judgments of the ECtHR in 2013 where the Court found against the UK illustrates this point.
As already noted, in 2013 in eight judgments the ECtHR found violations of Convention rights on the part of the United Kingdom. In two of these the applicants could not seek a remedy under the HRA before the courts of the UK as the facts they were complaining about took place before the HRA came into force on 2 October 2000. Both concerned deaths which occurred in the 1990s during The Troubles in Northern Ireland. In both the ECtHR concluded on the facts that there had been excessive delay in carrying out an effective investigation into the deaths. In three other judgments during 2013, the ECtHR reached a different conclusion to UK courts simply on the facts of the case meaning that just for these particular applicants, a remedy should be forthcoming. In the case of the first, this was not to be extradited to the United States, and in relation to the second, it found a violation of the Convention as a result of a thirteen month delay in his Parole Board review. The fact that the Convention had been breached was actually admitted to the ECtHR by the UK government. In the third fact based judgment, a convicted criminal successfully challenged his detention following the expiration of his sentence. He was detained, pending his deportation, for an additional 30 months after he should had been released having served his sentence for the crime he committed.
Only two judgments of the ECtHR in 2013 finding breaches of the ECHR on the part of the UK could be described as even approaching the magnitude of the prisoner voting judgments. The first was the judgment in the application of Ms Eweida and three other applicants. Ms Eweida, a practising Coptic Christian, argued that her failure to receive a satisfactory remedy before UK courts for her treatment as an employee of British Airways meant that the UK was in breach of Article 9 of the ECHR – the right to manifest religious belief. For a period of time Ms Eweida was at home without pay as she refused to comply with the uniform policy and conceal or remove her cross. She was unable to successfully receive a remedy for this treatment before the UK courts.
In a complex judgment, the ECtHR concluded that her behaviour was a manifestation of her religious belief and was therefore protected by Article 9. However, in contrast to its earlier case law, which had been followed by UK courts in Ms Eweida’s national litigation, it decided that the actions of British Airways amounted to an interference with Ms Eweida’s rights. It concluded that here the proportionate outcome would have been for the national authorities to afford Ms Eweida a remedy and their failure to do so meant that the UK was in breach of its positive obligations under Article 9. The other three applicants were not successful. This judgment was of enormous importance, not just for those in the UK seeking better protection of manifestations of religious freedom in the workplace, but for all ECHR Contracting States given the ECtHR had modified its jurisprudence, in relation to the interpretation and application of Article 9, swayed by the arguments of UK lawyers.
But although the ECtHR found against the UK, this judgment was not met with the same level of derision from politicians, media and others reserved for the issue of prisoner voting. It was reported that the Prime Minister welcomed the ruling, tweeting that he was “delighted that principle of wearing religious symbols at work has been upheld” but believed current law struck the right balance. Eric Pickles, Secretary of State for Communities and Local Government at the time, told BBC Radio 4 in response to the judgment that there had been a “degree of aggressive secularism” in the UK and that if it was necessary to change the law to ensure people could wear discreet religious symbols, the government would do so. It was reported that Vince Cable, Ms Eweida’s MP, was delighted with the result and saw this as an illustration of the ECtHR standing up for basic liberties. The tone of coverage in all media was either positive or neutral. The Daily Mail hedged its bets describing this as a “just decision” but of course, this “is not to say that the unaccountable foreign judges of Strasbourg have any business dictating the laws of the UK.” It also expressed its reservations about the Court finding against the three other applicants as this proved that “the court’s respect for our national religion and the right of believers to follow their consciences is paper-thin.” It seems that the ECtHR cannot ever win.
The second judgment against the UK in 2013 of significance and with wider ramifications was that concerning the applications of Douglas Vinter, Jeremy Bamber and Peter Moore. All three are convicted murderers and are serving mandatory sentences of life imprisonment with whole life tariffs – meaning they must spend the rest of their lives in prison. Each argued that their whole life orders were incompatible with Article 3 of the ECHR which protects against inhuman or degrading punishment. In a very complex judgment, the ECtHR held that where a whole life order was imposed, what Article 3 required was that there must be some sort of review during the period of the sentence, which allowed the authorities to consider whether any changes in the prisoner were so significant, and such progress towards rehabilitation had been made, as to mean that continued detention could no longer be justified on legitimate penological grounds. It did not prescribe the form that this review should take or when it should take place but observed that many other countries would institute a review on or before the 25 year point, with further periodic reviews thereafter. If the law did not provide for the possibility of such a review, a whole life sentence would not be compatible with Article 3. Although the UK government argued that the present law did provide for the possibility of such a review, the Court was not convinced that the law was sufficiently clear and held there was a violation of Article 3 in this regard. At no point did it recommend that the applicants be released or that whole life tariffs should not have been imposed on the applicants or could no longer be imposed on others. It is entirely possible that the outcome of a review at the 25 year mark would be that the prisoner remain in prison.
Given that the applicants were notorious murderers, Jeremy Bamber, for example, was convicted of the murder of his parents, adoptive sister and her two young children in 1986, it was not likely that any victory at all for them in the ECtHR would be well received back in the UK but the scale of misreporting of this judgment was shocking. In The Telegraph it was reported that the Court had held that whole life tariffs amounted to inhuman and degrading treatment. In The Times, it was reported that the Court had “infuriated ministers by ruling that whole-life sentences for the most notorious murderers are unlawful.” In The Sun the judgment was described as “a bombshell ruling banning British courts from giving our worst killers whole-life sentences.” In the recent Conservative proposals, the judgment is described as “banning whole life sentences even for the gravest crimes”.
The final judgment of the eight was very complex and concerned the intricacies of the interpretation and application of Article 5, the right to liberty. Whilst remedies implemented as a result would have wider implications for other in similar circumstances, this judgment definitely would not capture the imagination of the Editor of a tabloid newspaper. In short, a severely disabled woman successfully challenged her inability to have access to a court to effectively dispute one part of her detention, at the instigation of a council social worker, under the Mental Health Act 1983.
The full picture of the UK’s breaches as found by the ECtHR in 2013, a fairly typical year, shows that there were only two judgments of the ECtHR finding against the UK approaching the scale of impact of the prisoner voting judgments but still a long way off. One of these was well received escaping negative mention in any recent speech, proposal or media coverage. The other only has implications for the small number of prisoners, currently 48 in England and Wales, serving whole life tariffs. Each is now entitled to a review on or before the 25 year mark. But as the UK argued before the ECtHR, prior to this judgment were such a review ever requested of the Secretary of State, he or she could exercise the power of release and this would be done compatibly with the Convention. In its arguments before the ECtHR, the government had no difficulty with the principle of review, just with guaranteeing this clearly, in an Act of Parliament wary of the attendant publicity this would entail.
Is one controversial judgment per year, with limited implications for the general population, something we should be concerned about? Are these the actions of a dangerous judicial dictatorship? Obviously not. Superficial analysis of the UK’s record before the Court is a dubious path to tread. It also means that left out of the assessment of the ECtHR’s value to the UK are those judgments where it has found that the UK is not in breach of the ECHR. These judgments often concern issues of national law over which there has been disagreement for many years. A judgment of the ECtHR confirming the lawfulness of the current position can do much to put continuing disagreements at the national level to rest and allow Parliament and government to resist further calls for reform. Whether or not this is a positive development is open to question. However, it is important to appreciate that this benefit will also be lost should the UK withdraw from the ECHR system of protection. One further example from 2013 illustrates this point. In the application brought by the NGO Animal Defenders International, the ECtHR decided that the political broadcasting ban imposed in the UK by the Communications Act 2003 was compatible with the right to freedom of expression as protected by Article 10 of the ECHR. Parliament had passed this part of the Communications Act 2003 in full knowledge that it was possibly in breach of Article 10. The House of Lords (now the Supreme Court) in a carefully reasoned judgment, unanimously held that the ban was compatible with the right to freedom of expression. Lord Bingham observed that it was highly desirable that the playing field of debate “should be so far as practicable level.” In his view, this would not be achieved if political parties could “in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction.” In its judgment, noting the historical, cultural and political differences in Europe, the ECtHR held that it was for each State to mould its own democratic vision. It concluded that the impact of the ban did not outweigh the convincing justifications for it and that there was no breach of Article 10, the right to freedom of expression.
This significant victory for the UK received little attention in the UK media. There was some coverage of the victory in The Guardian, The Times, and The Independent reported that small advocacy groups would be bitterly disappointed but the judgment was welcomed by the then Culture Secretary, Maria Miller. The only coverage in The Daily Mail, some days after the judgment, concerned the prospect that the ECtHR would find against the UK stating “Britain is in danger of being forced by European judges to allow US-style political advertisements to be shown on television.” It is highly likely that the coverage would have been of a completely different tenor should the judgment have gone the other way.
33.2 million people identified as Christian in the 2011 Census. All of these people, and all others with religious beliefs, benefit from the improved right to manifest religious beliefs in the workplace as a direct result of a judgment of the ECtHR in 2013. Assuming it is of great benefit for the playing field of debate to be “so far as practicable level”, the entire population of the UK profits from the maintenance of the political broadcasting ban. By contrast 48 prisoners may have a review of their whole life tariff at the 25 year mark; 28,000 prisoners may one day get the right to vote; and various individuals have, based on their particular circumstances, have been able to resist deportation or extradition from the UK. It is easy to see why some judgments of the ECtHR are singled out for special mention or harsh criticism whilst others are not.
The war currently being waged on human rights law is an inevitable offshoot of the long standing “wars” on terror, crime, drugs and illegal immigration. It is just too tempting for governments waging these wars to maximise the political mileage by also engaging in warfare against whatever can be utilised in resistance including human rights law, international human rights supervision, and access to justice. However, it is a fundamental principle of human rights protection that human rights are for everyone including suspected terrorists, prisoners, criminals and foreign nationals living in the UK and the result should never be that human rights are for no-one. As a review of the judgments of the ECtHR in 2013 shows, the criticisms of the ECtHR in recent times are lies, manipulation of the truth and spin. 64 million people should not miss out on the benefits provided by the ECtHR as a result of politicians and media whipping up an irrational storm and not giving the whole picture. The people of the UK are too intelligent for that. When the criticisms of the ECtHR are wheeled out, which they are, on a regular basis, it is important to ask why, of the more than 500 judgments given by the ECtHR since 1966, the critics, at most, can only ever talk about five. What about the rest? What are they trying to divert our attention from?
Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.
(Suggested citation: M. Amos, ‘The UK and the European Court of Human Rights’ U.K. Const. L. Blog (24th November 2014) (available at https://ukconstitutionallaw.org/).