On 21 October 2015, Professor John Finnis delivered a paper entitled “Judicial Power: Past, Present and Future” at the relaunch of Policy Exchange’s Judicial Power Project. He was introduced by the Lord Chancellor, Michael Gove, and a vote of thanks was given by Lord Justice Elias. Many have already commented on this paper and have raised various points of disagreement which I will not repeat here. My purpose in this comment is to simply respond to Professor Finnis’ observations about the real risk test which is a part of the jurisprudence of Article 3 of the European Convention on Human Rights (ECHR). The test was first applied by the European Court of Human Rights (ECtHR) in the case of Soering v UK in 1989 where the Court unanimously held as follows:

. . the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country . . In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has a direct consequence the exposure of an individual to proscribed ill-treatment.

Finnis is highly critical of the test, particularly its application to the facts in Hirsi Jamaa v Italy 2012. He places it firmly in the category of “judicial law making” and without reference to the judgment in Soering, uses it to illustrate his argument against judicial power. I will make three points in response. First, the real risk Article 3 jurisprudence was accepted into UK law by Parliament on the passing of the Human Rights Act 1998 therefore any analysis of whether or not there has been judicial law making, and the negative consequences of this, can only take place at the international level. Second, limiting the analysis to the ECtHR level, this was not actually judicial law making, as Finnis defines it. There is no evidence to suggest that such a development was outside of the contemplation of the framers of the ECHR. Third, even if this was judicial law making, criticisms based upon the separation of powers cannot be applied in the same way at the international level.

The Human Rights Act 1998

In 1998, the members of, what Finnis would call, a “properly functioning legislature” made a choice of “one kind of future, in preference to all others” by passing into law the Human Rights Act 1998 (HRA). Section 1 gives further effect to the Convention rights including Article 3. Section 2 obliges courts determining a question which has arisen in connection with a Convention right to take into account judgments of the ECtHR. Soering v UK, establishing the real risk test, was decided in 1989. Chahal v UK, where the ECtHR confirmed that there was no exception to the real risk test, even on national security grounds, was decided in 1996. These judgments were not delivered in secret, and caused considerable discussion at the national level. There were reports concerning both in all of the national newspapers. In The Times it was observed that the judgment in Soering could lead to a situation in which “fugitive European nationals could be certain of evading extradition to the US for capital crimes”. At the time the Human Rights Bill was being debated in Parliament, national courts were coming close to utilising the test for themselves, but waited until Parliament had decided, and the HRA came into force, before applying it to the claims before them in the same way as the ECtHR applies it. If in doubt, consider the remarkable restraint shown by the Court of Appeal in its judgment in Turgut 2000.

By passing the HRA, Parliament knowingly made this part of Article 3 jurisprudence a part of UK law. The fact that the parliamentary debates were dominated by concerns about religious freedom and the impact on freedom of expression of the protection of private life resulting in the almost meaningless sections 12 and 13 of the HRA, demonstrates that sometimes Parliament can overlook something very important. Although beyond the limits of this comment, it is interesting to note that Article 3 of the First Protocol, the right to free elections, was also made a part of national law by the HRA with little discussion, despite the fact that it had been decided by the ECtHR in 1987 in Mathieu-Mohin and Clerfayt v Belgium that Article 3 guaranteed individual rights, including the right to vote and stand for election.

Was this “law making” on the part of the ECtHR?

As the Article 3 real risk test employed by national judges under the HRA was mandated by Parliament when it passed the HRA, the argument made by some that the application of the test by national judges is “judicial law making” is not accurate and the analysis can really only take place at the international level. At this level, Finnis’ discussion is problematic and it is questionable whether what occurred in 1989 could even be described as “judicial law making”. In his paper, Finnis defines judicial law making as occurring where a court does the following:

. . . appl[ies] newly current values (ideas about good and bad, right(s) and wrong(s) to ensure that an old situation – old because the instrument’s original makers intended their instrument to deal with that kind of situation (whether by inclusion or exclusion) in a certain way – will now be dealt with in a way that is new and incompatibly different.

As the ECtHR pointed out, at the time of its judgment, Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provided:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The CAT was ratified by the UK in 1988, and it had entered into force the year before. Furthermore, as the ECtHR also noted, even though this specific obligation was spelt out in the CAT, this did not mean that an essentially similar obligation was “not already inherent in the general terms of Article 3 of the European Convention.” In the Court’s view:

It would hardly be compatible with the underlying values of the Convention, that “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be danger of being subjected to torture . . [or] a real risk of exposure to inhuman or degrading treatment or punishment.

Utilising Article 3 in this way was not new and incompatibly different. Whilst extradition from the UK, an island nation, requires some effort, imagine the situation in others countries of Europe where a border can be crossed with a few steps. Reeling from the horrors of the Second World War, it is highly likely that the drafters of the Convention would have intended Article 3 to offer this protection as well and for the ECtHR to work towards the elimination of Article 3 ill treatment in the countries of Europe and elsewhere. As UK representative involved in the drafting of the ECHR, Sir David Maxwell-Fyfe, said in 1956 (as reported in the Travaux Préparatoires to the Convention):

. . . the eternal truth which we must all remember; that barbarism is never behind us, it is underneath us. It is our task to see that it does not come to the surface.

Finnis refers in his paper to a chapter in a new book in which he examines the development of Article 3 jurisprudence, but does not include in his paper the Soering judgment or any discussion of the intent of the framers of the ECHR in this context. With respect to the drafting of the 1951 Refugee Convention, he reminds us that States wished to retain the power to close their borders to mass migration. In short, Article 3 does not prevent this, States can continue to control their borders. What it does prevent is the extradition, and deportation, of individuals who face a real risk of Article 3 ill-treatment in a destination State.

Law making at the Council of Europe

The real risk test applied in Soering was not law making on the part of the ECtHR. But, given that critics of this aspect of Article 3 jurisprudence will continue to maintain that it was, it is important to also address the next stage of the argument. In his paper, Finnis argues that judicial law making is problematic because it goes against the intent of the original makers of the law (this is answered in the paragraphs above) and because it violates the separation of powers. In his view, the “institutional design of serious legislatures is broadly superior to the institutional design and procedures of even sophisticated appellate courts”. He notes that the better method for law making is the modern legislature “fortified by its own committees and their hearings, and by the investigative, discursive and reflective work of law reform commissions, and the ever present voices of constituents.”

This argument is based very much on the workings of national legal systems where there is a fully functioning executive, legislature and judiciary. Finnis states that his comments are targeted at “maturely self-determined polities with a discursively deliberative legislature”. International legal systems, such as the Council of Europe, are very different. In a blog post for Policy Exchange shortly after this paper was delivered, Finnis states that international law is “no part of the law of the land” and remains “a defective example of law”. He continues:

The criteria for its formation and identification remain opaque, controverted, and manipulable without redress. It is subject to serious problems of free riding and other forms of bad faith.

Without agreeing with this assessment of international law, it is true that the national and the international systems are very different. There is no legislature equivalent to the Westminster Parliament at the level of the Council of Europe. There is the Parliamentary Assembly, but this cannot amend treaties or pass binding laws. Given that there is no “discursive, deliberative legislature” how is the law ever to be reformed at the international level unless the ECtHR plays a part? Whilst it cannot operate in the same way as a national legislature, in interpreting the ECHR it does take into account a variety of evidence. For example, in Soering, the ECtHR considered at length the conclusion, on the same application, of the European Commission of Human Rights. The Commission had decided that deportation or extradition may give rise to an issue under Article 3 “where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to” Article 3. The ECtHR also took into account its own jurisprudence, the wording and meaning of other Convention articles, Article 3 of the CAT and the detailed submissions of the UK government and the intervening German government. Here it is important to note that the German government supported the real risk test and the approach of the Commission and pointed to a similar approach in the case-law of the German courts.

Finnis’ primary concern is that the ECtHR made the guarantee absolute, without the possibility of exception “even if the life of the nation were to be certainly imperilled by the importation of Ebola or other plague, or of uncountable numbers of terrorists or others, intent on overthrowing by force, or numbers, the State and the Convention.” To some extent, the UK did raise this point arguing before the ECtHR that the test would cause a serious risk of harm in the State “obliged to harbour the protected person”. This was expressly considered by the Court which stated as follows:

. . the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account . .

So in formulating the test, the ECtHR was not really operating in a “haze of global law” as Finnis opines. Furthermore, subsequent to the Soering judgment, the ECtHR has applied the test on numerous occasions and it has been open to States, whether as respondents or interveners, to submit convincing evidence to the ECtHR that the real risk test has imperilled the life of the nation. As the UK Home Office does not collect statistics exclusively concerning the impact of Article 3 in immigration decisions, or at least statistics which are publicly available, this is a difficult argument for the UK to mount. The only figures publicly available are for the period October to December 2010. These reveal that a total of 20 appeals were allowed by the First-tier Tribunal on Article 3 grounds, hardly an imperilling number.

Outside of the courtroom, should Contracting States be sufficiently excised, making changes to the ECHR is possible via the addition of Protocols. For example, Protocol No. 13 amends Article 2 of the ECHR by abolishing the death penalty in all circumstances. Since 1989, eight protocols have amended the ECHR – not all are yet in force. None has been directed at removing the real risk test from the scope of Article 3. In addition, since the ECtHR’s judgment in Soering, 26 new Contracting States have ratified the Convention and no States have left the Convention system, despite some threats to do so.

Conclusion

This is only a comment on a part of Professor Finnis’ paper. As someone who grew up in Australia, a human rights lawyer, and a self-identified member of the “British human-rights-law movement” I could also raise a number of other points of disagreement. But I will leave it to others to address his accusation concerning the “discourse community” which believes politicians are unskilled, and to my Australian colleagues, and the United Nations Human Rights Council, to deal with the rose-tinted view of Australia he conveys. Discussions about the appropriate limits to judicial power will continue and I am very happy to engage in these debates, there is sometimes an important argument to be had. But if we are to have a wide ranging debate about judicial power, it is important that it includes a rigorous examination of all of the facts supported by the relevant evidence.

Merris Amos is Reader in Human Rights Law, Queen Mary University of London.

(Suggested citation: M. Amos, ‘Judicial Power and the Article 3 ECHR Real Risk Test: A Comment on Professor Finnis’ Paper’ U.K. Const. L. Blog (23rd Nov 2015) (available at https://ukconstitutionallaw.org/))