No call for revolution – Marina Wheeler

4 June 2015 by Guest Contributor

Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.

In this post, I want to talk about the European Court of Human Rights in Strasbourg.

The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849.

Slowly it appears to be dawning on members of the government (see Daily Telegraph 1 June 2015, “May and Gove split with PM in human rights row”) that repealing the Human Rights Act will not solve this. Under the Act (section 2), domestic courts are to “take account of” Strasbourg Judgments. But the government’s obligation to abide by rulings in cases in which the UK is a party derives from our treaty obligations: Article 46 of the European Convention on Human Rights. The Panglossian proposal, floated by Grayling, that the Court might be persuaded to give advisory judgments against the UK, while binding other signatory states, has not reappeared. As for the nuclear option of Convention withdrawal, according to the Foreign Secretary, this is not currently on the table.

So accepting the premise that Strasbourg needs reining in, what is to be done?

Disappointing those hungry for revolution, what needs to be done is probably already underway. Analysis of recent Court Judgments suggest that institutional reforms and dialogue, much led by the UK, are already creating a less expansionist Court.

During its 2012 Chairmanship of the Council of Europe, the UK pressed hard for reform of the Court. Its diplomatic efforts produced the Brighton Declaration: a common commitment to strengthen the role of national authorities in safeguarding citizen’s rights, freeing up Strasbourg to focus on the most flagrant abuses. A new preamble to the Convention implements this, giving legal effect to the twin principles of “subsidiarity” and “margin of appreciation” (discretion to national authorities).

This means that, in future, legal representatives for the UK, defending a case in Strasbourg, can credibly argue the following: where the national system for protecting human rights is well developed (as in the UK), and has led to a detailed and reasoned assessment of law or policy by national authorities in light of the Convention and its case law, this assessment should be considered within the state’s margin of appreciation.

Abstract as this may sound, there are credible signs that the principle is being applied on the ground.

Hutchinson v UK (Application no. 57592/08), decided in February this year, is one example.

The case concerned the lawfulness of a whole life sentence imposed on an offender guilty of a sadistic and heinous crime, involving rape and multiple murder. Previous contentious cases in Strasbourg had considered whether an irreducible sentence, which did not allow for any form of rehabilitation, amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. In 2013, Strasbourg incensed the government by ruling in Vinter and others v UK (application nos. 660069/09, 130/10 and 3896/10) that the regime for imposing whole life sentences violated Article 3 because the lack of clarity in domestic law suggested such sentences were irreducible.

Domestic judges, sitting in the Court of Appeal, delivered a defiant riposte to this ruling (R v Newell; R v McLoughlan [2014] EWCA Crim 188). “We disagree”, they said baldly (para 29). The law is quite clear: statute permits a review if the offender can demonstrate exceptional circumstances which justify release on compassionate grounds. True it is that Government policy, set out in the Lifer Manual, seeks to narrowly restrict the matters to be considered. However policy is not law – the law requires the Secretary of State to consider all circumstances relevant to release on compassionate grounds and “compassionate grounds” must be read in a manner compatible with Article 3. Furthermore, the Secretary of State’s decision must be reasoned by reference to the facts and circumstances of the individual case, and is subject to scrutiny by way of judicial review. In this way, the law does provide the possibility of release “in exceptional circumstances which render the just punishment originally imposed no longer justifiable”.

In Hutchinson v UK, Strasbourg backed down. It noted the Court of Appeal’s “clarification of the applicable domestic law”, and found no violation of Article 3.

This dialogue is important for a number of reasons. First, it demonstrates Strasbourg’s willingness to stand corrected when taken to task or, put more diplomatically, when presented with a careful, reasoned decision of a domestic court. Second, it illustrates the value of giving national courts tools with which to apply the Convention – the central innovation of the Human Rights Act. Government reformers might however note, how English judges view their constitutional role: policing executive acts for compliance with individual rights, be they expressed in the Convention via the HRA, the common law or, presumably, any possible future British Bill of Rights.

Armed conflict

In another area where Strasbourg Judgments are controversial – military operations overseas – it is possible to detect a similar and recent restraint.

In a clutch of seminal Judgments – Al-Jedda v UK (2011) 53 EHRR 23; Al-Skeini v UK (2011) 53 EHRR 18 and Al-Saadoon – Strasbourg ruled that by virtue of the authority and control exercised by UK Armed Forces during the occupation in Iraq, the Convention applied.

The House of Lords had found that the UK citizen Mr Al-Jedda’s seven-year internment without trial was authorised by a UN Security Council Resolution. Indeed it held that the UK was obliged, as a member of the UN-mandated force, to intern those considered to threatened the security of Iraq, and this took precedence over its Convention obligations.

Strasbourg reached a different conclusion. The upshot was that, there having been no formal derogation from its terms (permissible in times of war, pursuant to Article 15), the Convention applied to detentions in Iraq.

However, recently, in Hassan v UK, the government persuaded Strasbourg to modify its previous approach. Put simply, the argument ran: if the reach of the Convention is now extended to a foreign conflict zone, the duties imposed have to at least take account of the context. This means applying the body of law specially developed to regulate armed conflicts, international humanitarian law (IHL, also known as the law of armed conflict).

Fair enough, ruled Strasbourg. Article 5 of the Convention applied, but its requirements were to be interpreted in the light of powers of detention available under the lex specialis, international humanitarian law.

In peacetime, Strasbourg reasoned, internment is of course prohibited by Article 5 (falling as it does outside the closed categories of permissible detention). But in an international armed conflict, where taking prisoners of war and detaining civilians who pose a threat to security are accepted features of IHL, Article 5 could be interpreted as permitting the exercise of such powers. The Court then considered procedural protections for the detained. It recognised that during armed conflict “it might not be practicable” for the legality of detention to be reviewed by an independent court – a core requirement under Article 5. However, consistent with the less exacting standards of IHL, there should be a review by an “impartial body according to a fair procedure”.

The Court accepted that having found Mr Hassan armed on the roof of his brother’s house, where weapons and documents of military intelligence value were stashed, the UK had grounds to detain him: either as a prisoner of war or a civilian who threatened security. As this was consistent with powers available under the Third and Fourth Geneva Conventions, it was also Convention compliant.

Important as the decision is, Hassan does not resolve all outstanding legal problems arising out of recent UK military operations. Far from it. A number of complex claims continue to make their way through the domestic Courts.

For example, the Court of Appeal is currently considering how the judgment in Hassan affects the legality of detention operations in Afghanistan: Ministry of Defence v Serdar Mohammed and others [2014] EWHC 1369.  The law is in a state of flux. In part this is because the nature of armed conflict has changed. Inter-state conflict has given way to military coalitions fighting insurgency or supressing civil war in failed foreign states. In the absence of clear legal norms, judges, at home and in Strasbourg, must grapple with some of the most difficult questions in international law.

It is worth noting that in seeking to answer these questions, domestic judges not infrequently apply more exacting human rights standards than Strasbourg.

Prisoner voting

In deference to the PM let us return to, and conclude with, Hirst (No 2). In Hirst, Strasbourg ruled (now, a decade ago) that the UK’s blanket ban which deprived every sentenced prisoner of the right to vote (except defaulters and those convicted of contempt) was disproportionate and so breached Article 3 of the First Protocol.

A powerful minority dissented, among them a President and future President of the Court. Given the lack of consensus in Europe about whether prisoners should have the vote, the minority warned, the Court should be very careful not to assume legislative functions.

Since this judgment, the Court has modified its position – no longer requiring a link between the offence and the sanction of disenfranchisement, or that the sanction be imposed by a judge (see Scoppola v Italy (No. 3) 56 EHRR 663). But as the Supreme Court recognised in R (Chester) v Secretary of State for Justice [2014] AC 271, Strasbourg is unlikely to modify it further, at least not to the point of accepting the UK’s continuing blanket ban.

In Chester, the government invited the Supreme Court to ignore Strasbourg rulings condemning the ban. Acknowledging circumstances in which it would be entitled to refuse to follow Strasbourg decisions, it held this was not such a case. Exposing a healthy divergence in views, the judgments make for informative reading. Baroness Hale rejected the notion that elected parliamentarians were uniquely qualified to determine the franchise. Noting that Parliament has no direct relationship with the disenfranchised, if it unjustifiably excluded certain people from voting then it was the Court’s duty to say so. She considered the arguments for and against the exclusion of prisoners to be finely balanced, but expressed sympathy for the position Strasbourg had adopted. By contrast, Lord Sumption described Strasbourg’s position as “curious” and mused that “ a wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy”.

On two essential matters, the Supreme Court agreed: the existing legislative ban – which excluded those sentenced to 28 days just as it excluded those sentenced to 28 years – was not Convention-compliant. However it was entirely lawful to deny the franchise to the Claimant, who had been sentenced to life. In such circumstances, and where Parliament was actively considering the issue, there would be no value in granting a further declaration of incompatibility.

Since the Supreme Court’s judgment, the Parliamentary Committee set up to resolve this impasse has reported. It proposes granting the franchise to prisoners sentenced to a prison term of 12 months or less. Adopting this recommendation would have two advantages. It would restore the position which existed when we signed the Convention in the 1950s, and it would place Parliament back in the driving seat, where the government insists it belongs.

Reform, not revolution

Concluding an address to the Council of Europe in January 2012, David Cameron said:

we have a clear opportunity to agree a practical programme of reform. Built on the noble intentions of this Convention. Forged through consensus. Driven by a belief in fundamental human rights and a passion to advance them. This is undoubtedly a challenge – but it is a challenge we can meet together.

Assuming the PM meant what he said (and the Lib Dems didn’t force him to say it), and given the positive developments outlined above, why in 2015 are we talking of walking away? The “practical programme of reform” was agreed. Now let’s recapture the zeal, the “passion” to advance human rights and implement further changes we need.

We wrote the Convention. We stand by its values. The peaceful, democratic and law-abiding continent, which is vital to our national security, is far from assured. So let’s invite the government to re-channel its efforts into strengthening these human rights mechanisms, shaped in our image, by our own hand. Not sweep them away, in a destructive, un-conservative, even un-British, act of revolutionary fervour.

Marina Wheeler of 1 Crown Office Row specialises in public and administrative law, human rights and employment law.
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