affiliated to the International Association of Constitutional Law
The Conservative party’s manifesto promise to make ‘our own Supreme Court the ultimate arbiter of human rights matters in the UK’, and their previous references to making the Supreme Court ‘supreme’ on human rights issues, suggests a high level of trust in the domestic judiciary to resolve human rights issues. If so, their views on the role of the ECHR should be taken very seriously. They should in any case, of course, for judges have been at the coalface, so to speak, applying ‘Convention rights’ in domestic law for nearly fifteen years now. Over that time the judiciary have evolved and adapted their approach. There have been examples of fruitful judicial dialogues between the UK courts and Strasbourg on certain human rights questions, demonstrating that the relationship is not a ‘top-down’ one, but one built on cooperation and mutual respect. Refining the UK courts’ position vis-a-vis Strasbourg, the UK judiciary has been able to draw upon experience elsewhere, for not infrequently its senior members interact with their counterparts from other apex courts in Europe (also tasked with protecting human rights), as well as with members of the Strasbourg Court at formal and informal gatherings (see Lord Carnwath’s comments as extracted below).
For these reasons, one could suggest that the judges are uniquely placed to comment upon the merits and demerits of reliance upon Conventions rights in the domestic setting, and form a view upon the jurisprudence of the Strasbourg Court. Their objective and dispassionate views on what is a complex matter deserve very careful attention, especially at a time when excitement about the role and influence of European human rights law have been running high, and look set to continue to do so.
So, this post seeks to identify what the senior judiciary have said about the Convention and the Strasbourg jurisprudence in recent times. It does so by looking at lectures delivered by senior members (or former members) of the judiciary over the last year and a half.
I should state upfront what my aim is. As the debate on the future of the Human Rights Act and the UK’s relationship with the ECHR looks set to intensify, it may be that certain politicians will repeat claims previously made that their opposition towards aspects of the ECHR has the support of some senior members of the judiciary. But can this really be said about the senior judiciary overall?
Based on their lectures I suggest that the answer to that is a clear ‘no’. Indeed, I’d argue that much more has been said in support of the Convention than by way of opposition.
I proceed in four steps. Firstly, I refer to three lectures delivered by senior members (or former members) of the judiciary in late 2013, which were critical of the Court. Secondly, I comment on a series of lectures that followed, some of which appear to have been responses to the three lectures, and which were far more upbeat and positive about Strasbourg. Thirdly, I state my own opinion on how I see these later lectures, and the overall messages they communicated. Finally, in the last (inevitably lengthy – and so thank you to the editors for allowing this) part of this post I set out the relevant extracts from the lectures, so that readers can read them and draw their own conclusions.
As already indicated, one reason for writing this post is that, in the past at least, great attention has been paid to the negative views about the Strasbourg court expressed in lectures delivered by three senior members (or former members) of the judiciary (Lord Sumption (here, 20 November 2013), Laws LJ (here, 28 November 2013), and Lord Judge here, 4 December 2013). For ease of reference I will refer to these speeches as the ‘November-December 2013’ lectures.
Those lectures will not be commented upon in detail here. They received plenty of media attention at the time, indeed perhaps out of all proportion to what said, given that the comments directly made about the Court by Lord Judge and Laws LJ formed only a small part of their lecture. Then again, the lectures came soon after Theresa May’s (late September 2013) announcement that ‘if leaving the European convention is what it takes to fix our human rights laws, that is what we should do’. To be clear, none of the lectures advocated withdrawal; still they left their audiences in little doubt that the speakers regarded the influence of European human rights law with concern. There were (in this writer’s view, but see also the comments from Lord Mance, Lord Dyson and Moses LJ as extracted below)) some sweeping, almost alarmist conclusions, suggestive of the notion that UK law risked being overwhelmed by, or being at the mercy of Strasbourg.
As Sir Nicolas Bratza, former President of the European Court of Human Rights, put it, ‘whether right or wrong, [the ‘November-December 2013’ lectures] gave an air of legal respectability to what had until then been essentially a political campaign to denigrate the Court and the Convention system as a whole – and this at a sensitive time when the general election [was] looming’ (see here). In late March 2014, under the headline ‘Chris Grayling: Senior judges back me over human rights reforms’, The Daily Telegraph reported on an interview with the then Minister of Justice, the report suggesting that ‘Britain’s most senior judges are increasingly supportive of the Conservative view that the European Court of Human Rights has “gone badly wrong” and should have less influence in this country’ (26 Mar 2014, ‘Chris Grayling: Senior Judges Back Me over Human Rights Reforms’) (I dare say, however, that neither Lord Sumption, nor Lord Judge, nor Laws LJ agreed with Grayling’s view (as reported in the above piece) that ‘human rights issues are [about] what’s happening in North Korea, some of the issues we are seeing around the world with harvesting of organs … the use of rape as a weapon of war. That’s what human rights issues are all about’).
By contrast, lectures on topic delivered by other senior members of (or former members of) the judiciary from late 2013 onwards – and there have been quite a few – stand out for their measured positivity toward the Court and its achievements.
I identify the subsequent lectures collectively, and, for convenience, refer to them as ‘the later lectures’, but do not suggest that they were part of a coordinated effort, and would also emphasise that they demonstrated different shades of opinion. Then again, each lecture must have been delivered with full knowledge of the preceding ‘November-December 2013’ lectures (indeed, some specifically referred to them), and conscious of the contemporary growing ‘anti-Strasbourg’, political climate. Sometimes, in fact, one detects a level of annoyance that the ‘November-December 2013’ lectures had come to be regarded as the judiciary’s authoritative word on the matters addressed and an eagerness to set out a different view (see the extracts I cite from Lord Dyson, Lord Mance and Moses LJ below). Lord Dyson, for example, feared that the ‘impression [had] been created that the entire judiciary is critical of the European Court of Human Rights’, something that was attributable to ‘lectures given by [just] a few senior judges’.
The purpose of what follows, then, is to highlight the various views that have been expressed about the influence of the Convention in the ‘later lectures’. I do so by setting out extracts from those lectures at the end of this post.
If nothing else, I hope that, at this important time for UK-Strasbourg relations, some use is served by bringing together these judicial comments in one place. There has been a lot of material to go through and collate, and the task has been quite time-consuming.
I said I would set out my own views (and I stress that that is what they are) on how these ‘later lectures’ might be understood. These are as follows.
The criticism levelled by Lords Sumption and Judge, and Laws LJ of course deserves great respect, and I do understand why they made some of the points they did. But, I submit, it is wide of the mark to suggest that their negative views of the impact of the Convention for UK law are shared across the senior judiciary to any great extent, at least when this is assessed by what has been said in the ‘later lectures’.
With respect to the views emerging from those lectures, differences of emphasis and various shades of opinion were only to be expected, as was some criticism, and this is what we see. But the criticism is very measured, and I would submit that, taken overall, the views were supportive, if not very supportive of the Court, with references being made to its recent practices and interaction with UK courts.
If I could be so bold as to sum up the overall messages conveyed by the later lectures, as I see them, they were:
I now set out the extracts I have identified from the ‘later lectures’ (scroll down). They are presented chronologically, with a list appearing at the end. I have inserted the numbering for ease of reference. It will be noted that the dates of the first two lectures are before late November 2013, but the material is included here as it may be of more general interest to the topic this post is addressing. There have been other lectures, before the dates I have identified, to which end see these websites: UK Supreme Court Speeches (here) and Court of Appeal (here).
I have endeavoured to offer as balanced coverage as I can (by quoting criticisms too) and provide hyperlinks to the lectures so that readers can see the original quotes in context. Inevitably, however, I have had to be selective in the actual quotes I use. It should also be noted that often the lectures covered broader topics than the Convention/ Court, so the comments made about it were sometimes brief.
I will gladly correct misquotes or what would seem to be quotes ‘out of context’, and, of course, readers have the opportunity to make comments below, if they think I have been biased. My coverage is confined to the Convention/ Court, and does not address the regime instituted by the HRA (e.g. the debate with respect to section 2(1)), unless this is relevant to the broader question of how the courts should protect rights in a modern democratic state.
Lord Carnwath (Justice of the Supreme Court), September 2013 (bio)
In a lecture (‘Il ruolo sussidario del CEDU nel sistema judiciario britannico’, 20 September 2013, in Rome) addressing relations between the UK (applying the HRA) and Strasbourg judiciary Lord Carnwath concluded by saying:
‘There is a high degree of respect from both sides [Strasbourg and the UK judiciary when deciding human rights cases], and this is encouraged by regular meetings between judges, formal and informal. The principle of subsidiarity or margin of appreciation is frequently reaffirmed but its application in practice may seem somewhat variable, and it cannot be taken for granted. Recent cases such as Horncastle and Animal Defenders have shown that the Strasbourg court is receptive to solidly based reasoning in support of a particular national position, especially where the measure in question has been subject to extensive consultation and debate at national level’ (p 8).
Lord Reed (Justice of the Supreme Court), November 2013 (bio)
Lord Reed delivered a lecture entitled ‘The Common Law and the ECHR’, at The Inner Temple, 11 November 2013.
On the ECHR overall, Lord Reed said,
‘There is no doubt in my mind as to the importance of the European Convention on Human Rights and of the role of the Strasbourg court in promoting human rights protection across Europe. Its body of case law is a substantial achievement’ (p 1).
Perhaps with an eye to accusations made in the past that Strasbourg was on an imperialist mission to unify European human rights law, Lord Reed commented that
‘the Strasbourg court’s aim is not to construct a code to be adopted by the 47 contracting states. It knows very well that there are important differences between the various societies and their legal systems. But the court is developing a body of high level principles which can be taken to be applicable across the different legal traditions’ (pp 15-16).
Speaking of the potential for the law of the ECHR to successfully interact with the UK common law, with positive benefits, Lord Reed concluded his lecture:
‘the [HRA], and the Convention rights to which it gives effect, should not be regarded as exotic interlopers sitting apart from the common law, but rather as guaranteeing standards which have deep roots in the common law and in our Parliamentary tradition. The protection of human rights is not alien to us: it is deeply embedded in our legal and political culture. The Convention system is a particular way of institutionalising respect for human rights at the international level. It is of practical importance at that level, because internationally agreed and enforced standards of human rights protection can facilitate international cooperation in many fields. This country has regarded it as being in its best interests to take part in international arrangements incorporating the Convention, such as the EU. If the UK is to comply with the obligations which it has undertaken at the international level, its domestic law has to comply with those internationally agreed standards. The Human Rights Act is one means by which Parliament has sought to achieve that objective. Properly understood, as it seems to me, it does so not by supplanting the common law but primarily by supporting its continuing development, in step with this country’s international obligations’ (p 16).
Baroness Hale (Deputy President of The Supreme Court), November 2013 (bio)
Lady Hale’s lecture (‘What’s the Point of Human Rights?’, 28 November 2013) mainly focussed on the domestic constitutional landscape for protecting human rights. Yet it is relevant to note that on the prisoner voting issue – an emblematic example of strained relations between the UK and Strasbourg– she said:
‘I have no personal view on which prisoners should be given the right to vote. But I do think that the issue is a good example of why we need human rights legislation. It is not at all obvious that the franchise should be decided only by those elected under the present franchise. Parliament is rightly proud that it represents and is accountable to the people. But members elected under the present franchise do not represent, and are not accountable to, the people who are currently disenfranchised. The purpose of any human rights protection is to protect the rights of those whom the majority are unwilling to protect: democracy values everyone equally even if the majority do not’ (p 19).
Lord Mance (Justice of the Supreme Court), December 2013 (bio)
Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’ 14 December 2013. This lecture addressed the influence of both European human rights law and EU law.
Lord Mance seemed to have the ‘November-December lectures’ (delivered just a couple of weeks before) firmly in mind when he commented that, although there were ‘some unresolved issues’, he had,
‘no sense at all that the United Kingdom’s legal system or we, its common lawyers, judges and courts, are about to be overwhelmed or lose our identity in the face of any outside threat’ (p 13).
Citing both Laws LJ’s and Lord Sumption’s lectures, in which it was suggested that human rights law as developed by Strasbourg shifted too much power to the courts, Lord Mance stated:
‘In fact, the British common law system has been almost alone in the world in operating on a pure principle of Parliament [sic] sovereignty, unconstrained by any written constitution. Written constitutions, containing fundamental rights chapters, exist in most countries, including virtually every former British territory given independence by the Westminster Parliament. Law exists as a basis for social activity and to constrain the activities of errant minorities. The fundamental rights chapters of constitutions are there for the very purpose of constraining the activities of majorities’ (p 3).
Lord Mance questioned whether ‘[u]nderlying attitudes to Europe and concerns about identity and self-determination’ (p 4) influenced how one approached whether human rights questions were, generally speaking, for political or legal resolution. He stated:
‘I have heard it said that, when the Strasbourg court disagrees with a decision taken in France, the blame in France is directed at the French decisionmaker, whereas, in the United Kingdom, it would be directed at the Strasbourg court’ (p 4).
He immediately added:
‘But all courts are aware of limits to their competence or suitability to resolve some important issues e.g. relating to the allocation of resources – as well as of the need to have regard to the choices of institutions elected or entrusted with public functions. At the international level, this is also reflected in the margin of appreciation; and the Strasbourg court has given real weight to this and to member states’ evaluation of local circumstances in significant recent decisions’ [detailing some of those recent decisions in a footnote] (p 4).
Lord Mance noted that the UK was not ‘the only country whose lay or legal population feels from time to time strongly about some decisions’. But he balanced this with the comment that the ‘potential for good in fundamental rights provisions at a European level ought not to be ignored’ (p 5). He gave some examples of this from the UK perspective, as
‘the Convention and Strasbourg case law has over the years led to the removal of sentencing discretion from the executive, the lifting of the ban on homosexuals in the armed forces, the ending of detention without trial of aliens suspected of terrorist involvement, prevention of deportation of aliens who would if deported face a real risk of torture or inhuman treatment or of a flagrantly unfair trial and the state being held responsible for complicity in illegal rendition and torture abroad’.
‘[t]he domestic effects of decisions reached in some of these areas may sometimes pinch, but it is difficult to regard it as unforeseeable that a court, established by consent of European states to give effect to the Convention, should reach them’ (p 5).
He noted that
‘[a]t the international level, the Convention has also been a positive inspiration for and an impetus for lifting standards of treatment of Europeans across the wider continent’ (p 5).
At the same time, it was acknowledged that ‘[t]here is still a danger that our supranational legal systems and courts operate too distantly from the national systems which their decisions impact’. This was a danger that needed to be guarded against, hence, as regards the Strasbourg case law Lord Mance hoped to see
‘a permanent recognition of the importance of the margin of appreciation and “the fundamental principle of subsidiarity”, underlined by the Brighton Declaration on the Future of that Court of April 2012’, (p 21).
Concluding his lecture with the quotation already referred to above (‘no sense… that [UK law to be] overwhelmed or lose our identity in the face of any outside threat’), Lord Mance argued that in his ‘experience there exists a real appreciation within European institutions and European and national legal communities of the contribution that the common law, with its experience and clear thinking pragmatism, offers’. He did not ‘think [this was] sufficiently appreciated within the UK’ (p 13).
Lord Phillips (former President of the Supreme Court), February and June 2014 (bio)
In a lecture entitled ‘The Elastic Jurisdiction of the European Convention on Human Rights’, 12 February 2014 (and see also a similar lecture: ‘European Human Rights – A Force for Good or a Threat to Democracy?’, 17 June 2014) Lord Phillips was critical of certain aspects of the Strasbourg case law, but also keen, it seems, to keep matters in proportion, ultimately providing a positive endorsement of the Court when it was seen in the context of its overall role, which included its broader European role.
Lord Phillips had ‘reservations’ about the Court’s interpretation of Article 3 so as to prevent deportation when there was a real risk of ‘torture, inhuman and degrading treatment’. He said that he was ‘not convinced that this fell within the scope of the [ECHR]’, although he agreed that it was ‘abhorrent to send someone off to a country where he would suffer torture or inhuman treatment’ (p 4).
He was also critical of a particular Strasbourg decision inappropriately (as he saw it) extending the scope of the application of Article 2 (the right to life) and the extra-territorial jurisdiction of human rights law (under Article 1), on which see pp 6-10 of his lecture (although he also referred to a lecture delivered by Lord Dyson (‘The Extra-Territorial Application of the ECHR: Now on a Firmer Footing but Is It a Sound One’, 30 January 2014) which was more positive about the second of these (p 9).
Lord Phillips also referred to the
‘complaint that the Strasbourg Court sometimes acts as a Court of Appeal in cases where our law provides satisfactory protection of the human right in issue and our courts have applied the right principles, so that all that is in issue is the individual decision itself’.
He agreed that this had been so in some cases (there ‘has undoubtedly been force in this complaint’). He noted that it had been addressed at the Brighton Conference (on ECHR Reform), and commented that ‘[t]his is the right way to approach dissatisfaction with the working of the Court, although it is no mean feat to procure agreement on the part of all Member States’ (p 11). Lord Phillips returned to this point in his later (June) lecture, suggesting that, looking back, in some cases ‘the Court has afforded the Member State concerned an insufficient margin of appreciation’. He then noted that the criticism appeared to be being taken on board at Strasbourg, referring to a lecture delivered by Judge Spano of the Court (Judge Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity‘, 30 April 2014). Lord Phillips added:
‘I hope and believe that the Court will pay regard to the emphasis on subsidiarity and the margin of appreciation that has been inserted in the Preamble to the Convention’ (p 7).
Lord Phillips did not, however, ‘believe that Article 8 cases provide a legitimate ground for complaint about Strasbourg’ (p 11, February). He would not side with the critics of Article 8, noting that it had been a ‘habitual ground of complaint’ that this provision was said to have an ‘effect… on the deportation of undesirable aliens’. This provision protects ‘the right to respect for family life’, Lord Phillips commenting:
‘Where an alien becomes part of a family in this country, and particularly when that family includes children born here, the interests of that family have to be taken into account when considering whether to deport the alien. A balance has to be struck between the interests of the State in excluding from this country those whose presence is contrary to the national interest and the interests of the family. It seems to me desirable that such a balance should be struck’. It was the proper role of the court to address this. Lord Phillips did ‘not believe that the Strasbourg Court often differs from the decisions reached by these bodies’, although he had heard reports that, ‘if accurate’, suggested that domestic tribunals could be ‘more generous to the interests of the family than Strasbourg would have required’ (p 11).
Next Lord Phillips referred to three examples of legislation challenged and found wanting by reference to European human rights law (the stipulation that sex offenders remain on the Sex Offenders Register for life, without review; the ban on all convicted prisoners voting; and the inability of life prisoners to ever be able to seek a review of their continuing detention – for full details, see p 11-12). He noted that the judgments had been portrayed as an attack on the sovereignty of our Parliament by judges who are unelected and unaccountable and from whose decisions there is no appeal (p 11). However, he expressed ‘some sympathy’ with the principled approach adopted by Strasbourg, whilst the magnitude of what was at stake needed to be kept in proportion. He observed: ‘it is usually possible to satisfy Strasbourg by a small amendment to the law that does not alter its main thrust’ (p 12). He then posed these questions:
‘What harm does it do to give a person convicted of a sex offence many years ago the chance to demonstrate that he no longer poses any risk? What harm does it do to give a life prisoner the right to a review – perhaps only after 20 years – to see whether there are exceptional circumstances that justify his release before he dies? And would it really be earth shaking to give some short term prisoners the right to vote, which most of them would not bother to exercise?’ (p 12).
With respect to the prisoner voting issue, Lord Phillips reflected on his own experience as a member of the Joint Parliamentary Committee set up to examine this issue. He suggested that the biggest issue for that Committee became not prisoner voting, but whether Parliament should comply with or defy Strasbourg on the matter. A minority, including the Chair, was ‘resolutely determined from first to last’ to defy (p 13). Lord Phillips agreed with the majority, that Parliament should not flout the international legal obligations articulated by Strasbourg, not least of all as that would give more latitude to other States to flout judgments made against them on more serious issues.
Upon the basis just noted, I read Lord Phillips’ conclusion as saying that the Convention is a mechanism whose effectiveness had to be preserved, as it was ‘a powerful force for good in Europe’ (p 14), demonstrated via its past record in respect of the UK (which ‘on occasion [had] rightly been found wanting – by way of example in denying basic rights to prisoners, in discriminating against homosexuals, in detention of terrorist suspects without trial, in permitting decisions to be founded on evidence not disclosed to the losing party’, p 14) even if its (the UK’s) ‘shortcomings have been insignificant compared with the violations of human rights of which other Members of the Council of Europe have been indicted by Strasbourg’ (p 14).
The need for a considered and balanced response, in the context of a three-step approach to the issues – (i) measured criticism of the Court, (ii) identifying the reform basis, but (iii) not overreacting – was the note upon which Lord Philips concluded:
‘I have not concealed my dissatisfaction with some aspects of the Strasbourg jurisprudence. The Brighton Declaration needs to be properly implemented. The Court needs to be more sensitive to the requirements of subsidiarity and of the margin of appreciation. But Europe needs the Convention and Europe needs the Court’ (p 14).
In a lecture delivered in June 2014 (see above), Lord Phillips concluded in a very similar vein: that aspects of Strasbourg’s work can be criticised, but
‘when the countries of the Council of Europe are looked at as a whole, the influence of the Strasbourg Court has been beneficial…. Europe needs the Convention and Europe needs the Court. I have no hesitation in expressing my conclusion that Strasbourg is a powerful force for good’ (‘European Human Rights – A Force for Good or a Threat to Democracy?’, 17 June 2014, p 13).
Lady Justice Arden (Lady Justice of Appeal), 28 February 2014 (bio)
In Lady Justice Arden’s lecture, entitled ‘An English Judge in Europe‘, 28 February 2014, she explained that she would not argue for or against ECHR membership, but would examine the way Strasbourg (and Luxembourg) decide cases and offered constructive suggestions for the future, drawing on her experience as Head of International Judicial Relations for England and Wales.
Arden LJ referred to the Convention’s ‘global importance’; its important ‘place in the world’ was underlined by the fact that ‘many national constitutions have included rights in terms of those set out in the Convention, including constitutions of countries outside Europe’, (at p 14). She suggested that, ‘[n]o one can doubt the enormous achievements of Strasbourg in interpreting the Convention rights’. It was noted that
‘[t]he Convention [had] helped to change the culture in many European countries. For example, in the UK, the Political Parties, Elections and Referendums Act 2000 brought the laws on campaign funding for non-party campaigners up to date after Strasbourg held in Bowman v UK that the UK had violated freedom of expression by limiting such funding to £5’, (p 14, footnote omitted). The influence of the Convention on the Russian legal order, as testified to by the President of the Constitutional Court in the Russian Federation, was also noted (pp 6-7).
Arden LJ sought to demonstrate that it was a mistake to view the relationship between domestic courts and supranational courts as the same as between domestic courts. In a very valuable and thought-provoking lecture she identified what was required for a ‘balanced relationship’ between the courts and the ‘checks and balances’ that exist and could be instituted.
In that connection, she referred to case law that demonstrated when Strasbourg had shifted its position in reaction to criticism from the UK (p 7). This illustrated ‘a very important characteristic of Strasbourg case law – its plasticity, its genuine desire to respond to the needs of the contracting states’ legal systems, in other words its receptivity of the need for change’ (original emphasis). She added:
‘[r]eceptivity is Strasbourg’s coping strategy, and we would do well to remember this. The plasticity of Strasbourg case law is a cause to celebrate. Strasbourg absorbs ideas from the legal systems of contracting states and it is capable of adapting itself when need arises’ (p 7, original emphasis).
It was noted that part of the rationale for the Convention was that it gave ‘the collective right [for each State] to intervene in the internal affairs of another sovereign state via the Committee of Ministers’ in the name of limited human rights protection. Such a potentially ‘intrusive process of implementation’ should not be a huge concern for the UK given that ‘[i]n 2013, …, out of 1,652 applications against the UK, Strasbourg gave only 8 judgments holding that the UK had violated the Convention, as opposed to 28 against France’.
Arden LJ’s lecture stressed that, in order to
‘understand the new European legal scene and the relationship between national and supranational courts, we have to recognise that the formation of these regional organisations of states represents a seismic shift away from the conventional notion of the nation state’ (p 12).
In that connection, a State’s membership of either the EU/ ECHR had to be seen in the contemporary perspective of the ‘interlinked world’, examples being given of how human rights crises in one part of Europe could have an impact on others (p 12-13). In Arden LJ’s view:
‘Some states will recognise that we do now live in an interlinked world, and they will therefore take the view that it is to their advantage to be parties to organisations such as the Council of Europe in order to have some influence over the internal affairs of another state. In the case of the membership of the Council of Europe, that influence is through the European Convention on Human Rights: visionaries like Churchill saw that this was a way of obtaining real and lasting peace in Europe. There is both a gaining and a loss of control: a gaining of power with the other member states to intervene in the internal affairs of another sovereign state and at the same time a loss of control – those other member states may seek to intervene in one’s own internal affairs and there is no control over decision-making. So the price of membership of a regional organisation with its own judicial system is a certain inevitable loss of control over the formation of law by the supranational court. Each state is simply one of 47 member states and can only exercise a limited amount of influence’ (p 13).
Arden LJ suggested that, due to their very nature, it was ‘a fool’s errand to seek a democratic system when assessing a supranational court’ (as with Strasbourg or Luxembourg), in which States ‘give up a certain measure of control over their own affairs’. The issue then was to ‘establish that there are checks and balances in the system or that there are accountability mechanisms which, as far as possible, ensure a proper balance in the relationships’ (p 23). She added:
‘Do these checks and balances exist or can they be created? My answer is yes, it can and is being done in at least three ways: internal working methods, brakes on implementation and constant renewal of the relationship between supranational courts and national courts’ (p 23).
She proceeded to examine these issues in her lecture.
In order to allow the ‘complex non-hierarchical legal scene [to] evolve’, Arden LJ saw it as necessary to ‘pursue many forms of dialogue’, although ‘[t]ensions are inevitable’. As she saw it,
‘[w]hat tends to happen is that there is a tension over some quite minor issue but it is seen as having much wider significance and so becomes a source of great attention and public debate. In the case of Strasbourg, we need to continue the successful Brighton reform process. We need to keep the process going and inject new ideas into it’ (p 37).
Lord Dyson (Master of the Rolls) 12 March 2014 (bio)
‘Are the Judges Too Powerful?‘, 12 March 2014.
Primarily with reference to the ‘November-December’ lectures, it seemed, Lord Dyson said that he ‘regret that judges [had] descended’ into a ‘toxic and highly political’ arena (‘Europe’), for the ‘impression [had] been created that the entire judiciary is critical of the European Court of Human Rights’. He believed that ‘this impression has been created by a small number of lectures given by a few senior judges’. Yet ‘[t]hey ha[d] not claimed to speak on behalf of their colleagues’ and Lord Dyson believed that ‘as one would expect, there is a wide range of judicial views on this subject’ (pp 11-12).
Lord Dyson noted that accusations had been levelled at the Court for extending the scope of the Convention and taking decisions that were purportedly ‘anti-democratic’ (p12). Over approximately five pages (pp 12-17) he responded in a tone which indicated that the accusations were, for him, misplaced and exaggerated.
At the risk of simplifying Lord Dyson’s arguments, he observed that it was natural, foreseeable and uncontroversial for the Court to keep the Convention ‘up to date’ with reference to ‘evolving social conceptions common to the democracies of Europe’ (p 12) – UK judges operated in a similar way interpreting the common law (p 13).
As to the anti-democratic charge, again there was a detailed response, focussing on Strasbourg’s ‘margin of appreciation’ doctrine. It was noted that it was ‘inherent in having an enforceable human rights instrument in place’ (pp 13-14) that there was ‘[s]ome risk of affecting the political culture of contracting states’ (p 13). ‘Nevertheless’, Lord Dyson explained, ‘the margin of appreciation is an important mechanism by which the court provides for the accommodation of democratic ideology’. For him,
‘[t]he flexibility inherent in the doctrine of the margin of appreciation allows the court to adjust the intensity of its supervision by reference to common European standards articulated by the court, depending on its perception of the value of the individual rights at stake and the importance of uniform enforcement of such standards’.
For Lord Dyson, Strasbourg was ‘acutely aware that it is not a representative or democratically accountable body’, which was precisely why ‘it recognises the importance of according a margin of appreciation to the Contracting States’ (p 14, with further coverage of this matter, and see also p 15). (The domestic courts operated in a similar way under the HRA – see p 16).
Lord Dyson endorsed Lord Mance’s comments (above) about ‘the potential for good in fundamental rights provisions at a European level’ (p 15); he referred to how Strasbourg ‘led the way’ on issues which are now seen as ‘welcome’ (‘the removal of sentencing discretion from the executive; the lifting of the ban on homosexuals in the armed forces; the ending of detention without trial of aliens suspected of terrorist activity; and the prevention of deportation of aliens who, if deported, would face a real risk of torture or inhuman treatment’ (p 15)).
Lord Justice Moses (at the time Lord Justice of Appeal), 18 March 2014 (bio)
‘Hitting the Balls out of Court: Are Judges Stepping Over the Line?‘, 18 March 2014.
Apparently with reference to the ‘November-December’ lectures, Moses LJ emphasized that ‘each of us has an independent view, the others do not speak for us’ and that the ‘judicial signposts’ do not point all ‘one way’ (p 19). In the remainder of his lecture Moses LJ commented on the various views that had been expressed by the judiciary on the lecture circuit. He referred to the ‘danger in this hubbub of judicial discussion: that the protagonist may cloak them with the authority of a judgment; certainly those seeking to persuade will cite the tit-bits’ (p 19).
The starting point for Moses LJ’s lecture was the
‘frequently expressed fear that the balance between the role of the judge and the role of an elected government is being undermined by the influence of a foreign court in Strasbourg’ (p 2).
He suggested that
‘[t]he dispute between those who welcome the progressive protection by Strasbourg of Convention rights and those who fear the erosion of all that is so dear and fundamental to the British Constitution (I deliberately proffer it as extreme disagreement, since that is how it is so often portrayed) bears many of the hallmarks of disputes as to the proper role of judge or of politician since the dawn of judicial review’ (p 3).
Parts of Moses LJ’s speech were directed to his argument that it had become convenient, politically, to blame the Strasbourg Court, for issues that were not fairly to be directed at it (see, eg, pp 8-9).
Lord Neuberger (President of the Supreme Court), 8 August 2014 (bio)
‘The Role of Judges in Human rights jurisprudence: a comparison of the Australian and UK experience‘, 8 August 2014 (and see also Lord Neuberger, ‘The British and Europe‘, 12 February 2014)
In his February lecture, which addressed both the ECHR and the EU, Lord Neuberger identified what he saw as ‘some of the reasons why the British may feel a degree of exceptionalism [to European law] not found on mainland Europe’ (p 31).
In his August lecture Lord Neuberger suggested that ‘the Convention’ had become ‘something of a whipping boy for some politicians and newspapers’. He added:
‘This appears to many people to be unfortunate. There are decisions of the Strasbourg court with which one can reasonably disagree, indeed with which I disagree. This is scarcely surprising; indeed, it would be astonishing if it were otherwise. However, to my mind, there are very few of its decisions which can fairly be said to be misconceived’, (p 19).
For Lord Neuberger the explanation for why the Convention had been the focal point of attacks was:
‘that “unelected” judges, especially foreign judges, are perceived to have been given powers which they previously had not enjoyed, coupled with the distaste in some political quarters for all things European, and the media’s concentration on prisoners’ votes and asylum seekers’ (p 19).
Yet he commented on the tendency for ‘all constitutional courts’ to ‘generously interpret the constitution’, observing that,
‘particularly in the light of their recent history, Mainland European countries appreciate the need for checks and balances, and realise that undiluted democracy is risky. The tyranny of the majority is bad enough and, as the last century demonstrated, it can lead to far worse things. However, you only have to look at the history of Germany over the last one hundred years to see how valuable it can be for judges to be given a substantial role, supported by the rule of law, in protecting individuals against the might of the modern state’ (pp 19-20).
Having said this, Lord Neuberger added,
‘I strongly believe that Judges should not be anxious to increase their powers, and indeed should not even be enthusiastic about using any powers they have. A degree of judicial self-restraint is always appropriate’ (p 20).
Lord Neuberger accepted that there was ‘undoubtedly.. some force’ in the view expressed by Lord Sumption (November lecture) that the ‘Strasbourg court suffers from a democratic deficit’ (p 20). Lord Neuberger added:
‘[h]owever, the development of pan-European law after centuries, indeed millennia, of separate development and frequent wars, and with different political and legal traditions, and different historical experiences and different traditions, was never going to be easy. It is therefore inevitable that the Convention, like the EU, would be a controversial topic in the UK. Watch this space’ (p 20).
Ed Bates is Senior Lecturer at the University of Leicester School of Law
(Suggested citation: E. Bates, ‘The Senior Judiciary on ‘Strasbourg’ – More Supportive Than Some Would Have You Believe’ UK Const. L. Blog (28th May 2015) (available at http://ukconstitutionallaw.org))