Helen Fenwick: The Conservative stance in the 2015 election on the UK’s relationship with the Strasbourg Court and its jurisprudence – bluff, exit strategy or compromise on both sides? (Part I)

helenfenwickThis is the first in a two-part contribution. Part II is available here.

Introduction – manifesto watching

The Conservative party is going into the 2015 General Election with a pledge to distance Britain from the Strasbourg Court (see here), which it’s expected will presumably appear in its manifesto. To that end it intends to repeal the Human Rights Act (HRA) and introduce a British Bill of Rights (BBoR) which inter alia would as currently planned contain provision to break the tie between domestic courts and Strasbourg, and it has also stated that it will consider making Strasbourg judgments advisory only – non-binding on the UK. So after May we can expect a policy of seeking to stifle the impact of Strasbourg jurisprudence in the UK, in terms of the judicial, legislative and executive responses, if the Conservatives have a majority after the election or can form a coalition or pact that could allow them to take this forward. This article considers precisely what that might mean and whether possible compromises on this matter are already apparent and could still be effected.

The draft BBoR was apparently to be made available before Xmas 2014, but so far in the run-up to the 2015 election no draft has appeared. Presumably the draft will appear before May, and will be referred to in the Conservative manifesto when it emerges. Possibly in-fighting is occurring behind the scenes as to the question of refusing to abide by Strasbourg decisions against the UK, in breach of Article 46 ECHR. When that possibility appeared in the recent Conservative document on the matter it was panned in a number of quarters (see, for example, Dominic Grieve’s reaction here). Liberty termed the proposal ‘legally illiterate’ (see press release), which is correct in the sense that it did not acknowledge that the stance as to rendering Strasbourg findings against the UK advisory only could not be reconciled with the obligations the UK has accepted under the Convention. One possibility is that it is obvious that Britain cannot remain within the Convention system while openly asserting that it refuses to abide by such findings, but that at present simply stating that Conservative policy is to withdraw from the Convention jurisdiction is seen as too radical. Another is that rhetoric on the Strasbourg Court is ill-matched with reality, in the sense that focusing blame on the Court in relation especially to terrorism, immigration, prisoners’ voting and criminal justice matters has proved convenient. But addressing the apparent ‘problem’ which therefore appears to arise is not only difficult in practice, but risks exposing the rhetoric for what it is.

The other parties, apart from UKIP – obviously – will, it appears, go into the General Election with manifesto pledges to support the HRA (see Labour, Liberal Democrats). It will clearly be UKIP policy in its 2015 manifesto to replace the HRA with a British BoR and to withdraw from the jurisdiction of the European Court of Human Rights (see UKIP website). The Green Party supports the Human Rights Act but wants to add a right to jury trial (although it has not explained how that would be done since the HRA obviously only gives effect to certain ECHR rights) (see Green Party website). The SNP similarly supports the Human Rights Act, and emphasises widespread Scottish support for it (see here).

Distancing the domestic courts from Strasbourg

The first matter – breaking the tie between the domestic courts and Strasbourg by repealing the HRA, including obviously section 2, and replacing section 2 with a section that sought to create such a break – is relatively uncontroversial. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under section 2; as has been pointed out many times, it was clearly the intention underlying section 2 that the jurisprudence would not be viewed as, in effect, binding (see eg F Klug and H Wildbore). But as is well known, it was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, which until fairly recently remained the dominant approach (eg Pinnock), although it has been departed from in a number of recent instances (see for discussion eg my my post on s.2 on this blog and Masterman also on this blog). But there is of course no Convention-based reason why the domestic courts should – in effect – be ‘bound’ by Strasbourg jurisprudence (in reliance on Ullah); nor is there any express necessity under the Convention, for the courts even to take it into account. In that sense the Convention has been ‘gold-plated’ under the HRA.

The 2014 Conservative ‘Protecting Rights’ document – which will be reflected in the draft BBoR – states that ‘Labour’s Human Rights Act undermines the role of UK courts in deciding on human rights issues in this country. Section 2…means that problematic Strasbourg jurisprudence is often being applied in UK law. Strasbourg jurisprudence includes the doctrine of ‘proportionality’, and the application of this doctrine has led judges to question whether provisions of legislation and decisions of public authorities are ‘proportionate’ to their objectives, which can amount to an essentially political evaluation of different policy considerations’. So it proposes to ‘break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. The UK Courts, not Strasbourg, will have the final say in interpreting Convention Rights, as clarified by Parliament’. Thus ‘the European Court of Human Rights is no longer binding over the UK Supreme Court’. Obviously the Strasbourg Court does not literally ‘bind’ the Supreme Court at present. But presumably the intention is that the BBoR will provide that the courts should not take the Strasbourg jurisprudence into account.

In similar vein Charlie Elphicke Conservative MP introduced a Bill with a broad clause replacing section 2 HRA with an equivalent provision that qualified the interpretative obligation so that Strasbourg authority was equivalent to that of other national constitutional courts and was subject to the doctrine of precedent (see here). A further Conservative private members’ Bill on similar lines is about to be introduced (see here). In 2009 Dominic Grieve said that the equivalent of section 2 HRA in a new BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Instead, he said, a new Bill of Rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court. He said: ‘We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions’ (reported in the Telegraph).

Breaking the tie between the UK and Strasbourg

The Conservative intention is to ensure that the Court ‘is no longer able to order a change in UK law and becomes an advisory body only’. That is intended to ‘end the ability of the European Court of Human Rights to force the UK to change the law’ (see here, p. 6). It is intended to mean that ‘every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgment. It will only be binding in UK law if Parliament agrees that it should be enacted as such’. The threat appears to be to leave the ECHR if Parliament and the British courts cannot in effect veto such judgments.

Breaking the tie between the UK and Strasbourg based on Article 46 ECHR is – obviously – far more controversial than providing that domestic judges should disregard Strasbourg rulings – and would tend indirectly to have very far-reaching consequences, not least on the Convention-compliance of states such as Russia or Turkey. The Council of Europe has said that Mr Grayling’s proposals are ‘not consistent’ with the ECHR and that it was ‘inconceivable that the UK as a human rights leader and founding country of this organisation would leave’ (Telegraph).

It sometimes seems to be assumed that the duty under section 2 HRA (combined with either sections 3 or 6 HRA) and that under Art 46 are necessarily linked or are almost indistinguishable from each other in terms of the outcomes created. That is obviously not the case. Further, conflating the two risks obscuring the difference between the two strands of the Conservative plans under discussion. Clearly, if a court finds itself confronted with a dispute that is very similar to one decided recently by the Court, and then relies on sections 2 and 3 to absorb the Court decision and effect a change in the law via the case in front of it, the duty under Art 46 has been served as far as the UK is concerned – assuming that the case in question arose against the UK. The most obvious example is AF No3 which, as is well known, absorbed the Article 6 ruling from A v UK into domestic law via sections 3 and 2 HRA. So it might be argued that the state would eventually have had to comply with the decision under Art 46 and therefore the duties arising under the HRA and under Art 46 are effectively the same.

But the differences between the roles of section 2 and Art 46 are as follows. First Art 46 only applies to final decisions against the UK; section 2 in contrast applies to all clear and constant jurisprudence of the Court, according to Ullah. Thus in effect section 2 can create more expansive duties than those arising under Art 46 since the UK may find itself affected by jurisprudence against another state, which it could simply disregard until (if ever) a case was brought against the UK relying on that other jurisprudence. Thus under Art 46 the state obtains far more wriggle-room in terms of absorbing Strasbourg jurisprudence into domestic law than it does where section 2 applies, if there is strict accordance with the rule in UllahThe executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than the court-based findings did. That might not have applied in AF (No.3) itself (if e.g. a section 4 HRA declaration had been granted in the House of Lords rather than use of section 3), but the decision illustrated the potential of sections 2 and 3 HRA combined.

Second – obviously – section 2 applies to the courts while Art 46 applies to the state more generally, which could include the national courts, but need not. Thus section 2, as discussed, combined with sections 3 or 6 HRA, could allow a court to pre-empt a delayed, or more considered, or less expansive Parliamentary or executive response – in terms of protection of rights. While from the perspective of ensuring maximum rights-protection that might be viewed as a reason for retaining section 2’s Ullah-based role, it could also be argued that Parliament should be assured of having the opportunity to consider the issue in question, and its ramifications in various areas of civic life.

This is the first in a two-part contribution. Part II is available here.

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

(Suggested citation: H. Fenwick, ‘The Conservative stance in the 2015 election on the UK’s relationship with the Strasbourg Court and its jurisprudence – bluff, exit strategy or compromise on both sides? (Part I)’   UK Const. L. Blog (10th March 2015) (available at http://ukconstitutionallaw.org))