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 II)

helenfenwickThis is the second in a two-part contribution. Part I is available here.

Moves towards repairing relations with the Conservative government by the Strasbourg Court?

I have argued elsewhere (on this blog) that the Court has recently adopted an ‘appeasement’ approach towards the UK government. Various judgments could be categorised as reflecting a dialogic approach or the doctrine of subsidiarity (possibly premised partly on the basis that the domestic court had rehearsed the Convention arguments), or possibly as merely seeking appeasement of the UK government. A ‘dialogic approach’ could be taken to mean that Strasbourg is prepared to listen to higher national courts; the particular interaction between Strasbourg and the UK courts could be seen as a dialogue within which both parties seek to find an acceptable balance between the rights of the applicants and countervailing considerations.

The following judgments indicate, it is argued, a stance taken at Strasbourg that has the potential to be seen as less confrontational by the Conservative leadership. Essentially, the Grand Chamber’s judgment in Austin v UK did not differ from that of the House of Lords despite the fact that it ran counter to the findings of the ECtHR in A v UK on the interpretation of Article 5. The ECtHR’s approach in Ahmad and others v UK on Article 3 ECHR in the counter-terror context showed some parallels with the one accepted in Austin. The ECtHR accepted the UK’s argument in Ahmad which had also been accepted domestically by the UK Courts (paras 37 and 38). Although the Court in Ahmad did not overtly accept the Lords’ balancing argument in relation to Article 3, it appeared to rely on the terrorist context in reaching the same outcome (para 243). Al-Khawaja v UK also provides an example of an instance in which the Grand Chamber allowed itself to be guided towards a position in harmony with that taken by the national court, even where that meant departing from its own previous judgment in the same case.  In Al-Khawaja v UK the Grand Chamber was guided by the findings of the Supreme Court in R v Horncastle in reaching a decision on the scope of Article 6, which was contrary to its previous stance as to acceptance of hearsay evidence under Article 6 in the Chamber. The Supreme Court took a more pragmatic, less absolutist, approach to Article 6 requirements than the ECtHR had previously done. Strasbourg then applied the ruling in Al-Khawaja v UK to Horncastle v UK, rejecting the applicants’ invitation to the Court to modify substantially the Grand Chamber’s decision in Al-Khawaja. That more pragmatic, overall balancing approach, characteristic of common law reasoning, was also apparent in  Ibrahim, Mohammed, Omar v UK in which it was found that although there had been delay in allowing the accused access to a lawyer before police interviews, the trial overall was fair, in accordance with the findings domestically.

The findings in Firth also arguably represent an attempt at creating an acceptable compromise. The violation of Article 3 Protocol 1 found in Hirst was upheld, but Firth came as close to departing from Hirst as possible in the sense that the ECtHR found that the prisoners cannot obtain compensation in relation to the breach of Protocol 1 or recover legal costs – a stance confirmed by the ECtHR in the subsequent case of McHugh v UK.

Obviously appeasement has been attacked in various quarters (by myself at times), but appeasement, combined with or obscured by reliance on mechanisms such as subsidiarity and dialogue is preferable to outright departure from the Convention. Keeping the UK within the Convention system (and seeing current appeasement as merely a phase in its relations with the UK) at least retains a measure of rights protection. The key roles of the Convention could thus still be satisfied in the UK even under a future Conservative government.

Moves to creating a compromise from the UK’s perspective

In 2012 it appeared that David Cameron had accepted the possibility – obviously supported by Dominic Grieve – that a compromise between the Conservative stance and that of Strasbourg might be acceptable in supporting moves towards enhancement of the subsidiarity doctrine at Strasbourg. Britain’s Chairmanship of the Council of Europe provided the Conservative leadership with an opportunity to present such proposals at the 2012 Brighton High Level Conference intended to allow the current use of the margin of appreciation doctrine to be taken much further, creating greatly enhanced subsidiarity. David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012 (see here), reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. In pursuit of this compromising possibility, Grieve intervened in Scoppola v Italy No 3. His stance was to the effect that greater acknowledgment of the doctrine of the margin of appreciation should result in the EtCHR intervening only when ‘the decision of the national authorities is manifestly without reasonable foundation’ (see here). After the Brighton conference, in which the Conservative leadership did not obtain all the concessions it was seeking in terms of subsidiarity, the policy of creation of a compromise position appeared to be abandoned (although not by Grieve).

Consequences if a future Conservative government deems a compromise unacceptable?

Assume that the Conservatives obtain a workable majority after the 2015 election or form a coalition or pact allowing them to push forward their post-election Constitutional programme. At some point the Human Rights Act is repealed, and at some later point a British Bill of Rights is introduced on the lines discussed. The BBoR provides that in the UK Strasbourg judgments are to be ‘advisory’ only; but at that early point in the life of the government withdrawal from the ECHR does not occur. That in itself would not mean that Britain would inevitably have to leave the ECHR at that point although the provision would oppose Article 46. The results could depend on the precise wording of the provision in question and on whether the term ‘advisory’ could be judicially interpreted to mean ‘deemed advisory for a temporary period’. That interpretation could be adopted on the basis that when Parliament passed the provision in question it was aware that Britain had not withdrawn from the Convention (which includes Art 46), and therefore such an interpretation would be consistent with Britain’s international obligations which Parliament must have intended to satisfy in passing the BBoR. The term ‘advisory’ could cover a period during which Parliament was deliberating as to its response: the ruling could be treated as though it was ‘advisory’ only during that period. That might create stasis for a period, given that it would merely reflect the de facto position that subsisted for a period of years in respect of Hirst. It would also reflect the position in a range of member states in which reaction to Strasbourg rulings are subjected to prolonged delay that may be combined with minimal, barely discernible, or non-implementation (see eg here, p. 40).

Assume further that at some point the Voting Eligibility (Prisoners) Bill 2012 becomes law and introduces the third option (providing for no increase in prisoner voting). Or assume that at some future point Britain leaves the ECHR system. This is not the place to consider all the consequences that might flow from such developments. They would include, as mentioned, an impact on other member states already disinclined to adhere to Strasbourg rulings and would damage the general standing of the Court and the ECHR. But only one matter will be considered in some depth as an example – the impact on counter-terror or counter-extremism measures.

A number of measures aimed at combating terrorism and extremist groups are expected to be in the 2015 Conservative manifesto. They include the introduction of banning orders to outlaw groups that incite hatred or cause fear. Extremism Disruption Orders (EXDOs) are planned to prevent ‘disruptive’ individuals from speaking in public or holding a position of authority. ‘Temporary exclusion orders’ (TEOs) – are provided for under s2(1) of the Counter-terrorism and Security Act 2015. A TEO prevents the individual from returning to the UK (for up to two years and TEOs can be renewed) unless their return is in accordance with a ‘permit to return’ issued by the Secretary of State. TPIMs (the replacement for control orders) can now impose relocation as well as other restrictions, after amendment of the Terrorism Prevention and Investigation Act 2011 by the 2015 Act.

All these measures would be vulnerable to challenge under various Articles of the ECHR, including Articles 5,8,10,11 (although they may be justifiable under the qualified Articles and avoid a deprivation of liberty under Art 5). Under current plans these Articles or their equivalents would appear in their current form in the BBoR. However, the attempt could be made to protect the measures from successful challenge by use of a general limitation clause (as previously proposed by Grieve) and/or via a provision which has already been used in the Immigration Act 2014 Part 5A (intended in that instance to direct judicial interpretation of the public interest under Article 8(2)). Similarly, Martin Howe’s draft Bill of Rights proposal as regards protection of the ‘general right to respect private and family life’ (Draft Article 18) sought to limit the scope of the right, and therefore also judicial involvement based on the ECHR Articles and jurisprudence, to instances where the interest in private and family life was already protected in statute (see here, at p. 208). Such measures would not necessarily preclude reliance on the BBoR rights but if as a result such reliance was curbed, the judges could find that common law-based human rights, especially to freedom of speech, were relevant (eg the Kennedy case per Lady Hale [46]). However, in reinterpreting some of the provisions in question (if such provisions were found to necessitate such reinterpretation) the judges would of course lack the Parliamentary backing they received in section 3 HRA; the use of clear words in the provisions would also tend to inhibit creative interpretations. Thus the protection of human rights in the UK could tend to be diminished if the Conservative plans were realised as indicated.

Conclusions: rejection of the compromise?

Recent Conservative policy discussed here and likely to appear in their election manifesto suggests that the compromise possibility represented by enhanced subsidiarity and by moves at Strasbourg to appease the UK has been rejected. The removal from Cabinet of Dominic Grieve in the 2014 reshuffle seems to support the notion that quite a definite rejection of that possibility has occurred. The inclusion in the Voting Eligibility (Prisoners) Bill 2012 of one option that would openly defy the Strasbourg Court in Hirst represented a precursor to this position.

However the Conservative leadership cannot know with certainty at present which groups it might need to create a coalition or pact with after the election, bearing in mind the current predicted position in which it would have the largest number of seats but would not be able to form a government without support from other parties (see Guardian polling projections). Presumably it would prefer not to be in the situation it was in after the 2010 election when, having proclaimed its loathing for the HRA, and whipped its supporters into a frenzy on the issue, it then had to back-track under the Coalition on its manifesto promise to repeal it and was forced to rely on the fig-leaf of setting up a BoR Commission (while continuing to whip up anti-HRA fervour). Placing attacks on the HRA and the ECHR very much at the forefront of its manifesto and campaign could be awkward in terms of post-General election negotiations.

Have the Conservatives over-reached themselves? Have they aided in the creation of a popular hatred of the ECHR and the HRA which makes it very difficult now to ride part of the way back to the boathouse – that is, repealing the HRA and seeking to prevent judges ‘following’ Strasbourg cases in the BBoR, but staying within the Convention system? Obviously a related problem is that of the EU referendum, planned for 2017 if a Conservative government is returned in this year’s election. If the UK departed from the EU, that would make it easier to leave the Council of Europe and ECHR as well. A possible option for the Conservatives, assuming they win the election, and prior to the EU referendum, would be to rely on the compromise which in effect is already – broadly speaking – in place, partly brokered by Grieve, partly by some senior judges (who are busy rejecting the Ullah-based approach to section 2 and are contemplating reliance on common law rights, rather than ECHR-based ones, eg Lady Hale), and partly by the Strasbourg Court itself, as discussed. The problem with so doing is that the party could look weak to some of its own backbenchers, parts of the media, right-wing parties (eg the BNP and UKIP), and some of the public (especially in England).

The delay in producing the draft BoR suggests current hesitancy on these issues, no doubt affected by the positions of the parties in the run-up to the election as indicated by the opinion polls. Giving some indications in the manifesto that a compromise on the Art 46 issue is still possible would probably be the most politic stance at present.

This is the second in a two-part contribution. Part I 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 II)’   UK Const. L. Blog (10th March 2015) (available at http://ukconstitutionallaw.org))