Bringing Rights Back Home is the latest policy document to address the tension between judges and politicians over public policy with human rights implications.
Within hours of publication of the report, a hard-hitting academic paper put together by the political scientist Michael Pinto-Duschinsky, criticism started pouring in, and there will be no doubt more huffing and puffing to come.
But before these lofty admonitions stifle them, it is worth considering some of the paper’s objections and proposals. These are legitimate points made in a political debate which has been masquerading for years as a legal one. The document is essentially uncontroversial, in legal terms.
First, at the risk of being repetitious – for Adam Wagner has discussedthis in some detail – we need to clear up the point about the hierarchical relationship between the Strasbourg Court and the UK appellate courts. The report overemphasises Strasbourg’s superiority. In fact the rulings of the European Court of Human Rights are binding not on our courts, but on the government (which is not bound by rulings of our own Supreme Court). The only “binding” effect of Strasbourg is limited to section 3(1) of the Human Rights Act,which compels a court dealing with a case concerning a human rights question to interpret it in line with the provisions of the ECHR.
To be fair, the report does not make the mistake of describing the rulings of Strasbourg as binding; it asserts merely that the UK Supreme Court has simply “chosen” to be subsidiary to Strasbourg.
Nor do we need to be distracted by the broad-ranging constitutional discussion which occupies the first third of the report, along with the speculations about possible reforms in Strasbourg (highly unlikely in practice) and the authors’ suggestion that Supreme Court justices should be political nominees. These are relevant considerations but they do not go to the heart of what the report is proposing, which is a root and branch review of the UK’s relationship with the European Court of Human Rights. (Incidentally a shorthand way of telling which direction any analysis or case report is coming from is whether the author refers to that court as the “Court of Human Rights” or “Strasbourg”. Needless to say the ECtHR is referred to as “Strasbourg” throughout).
Whatever one makes of this document, it is refreshingly upfront. The usual mode adopted by critics of the ECHR is to be maddeningly coy about their true focus. It isn’t really habeas corpus or the right to trial by jury or the buttressing of common law freedom of expression rights against the nascent right to privacy that they really feel strongly about. Rather it is the trivialisation of the core rights by expansion that is the object of their attack, those referred to by Lord Hoffman for example: the invocation of “torture” in relation to smacking or the appeal to fair trial rights by speeding drivers .
A strong theme running through the paper is the role of pressure groups and their distorting influence on policy and jurisprudence relating to human rights. The effect is disproportionate, because, in the authors’ view, they appeal to a “narrow politically active section of the electorate”. UK judges have been too attentive to their stridency and this has led to mission creep , or what one critic more pungently calls “rights contagion” . Their presence – or threatened presence – in court paralyses public decision making and stultifies debate – and this “lawfare” (an American coinage) has led to the untrammelled expansion of judicial creativity with the consequent etiolation of legislative supremacy. The impact of these groups is felt at an international level as well; the report notes that the Council of Europe itself has acknowledged
that the [Strasbourg] court is too easily subject to the influence of non-governmental organisations and lobbies,which sometimes sponsor cases for political reasons.
There is a chorus of disapproval from these very quarters every time human rights law is critiqued. This goes some way towards jusitfying the disquiet expressed in the report.
The Strasbourg Court’s structural problems
So what are the specific objections to the Strasbourg Court? The report lists several criticisms, most serious of which is that the competence of the judges – of whom there are too many – is “severely in doubt”. The report quotes anecdotal evidence that one greenhorn was unaware of the concept of legal precedent. And it faces down the argument that judges from “barely democratic” countries should be allowed to participate in the democratic family with the fairly undeniable assertion that
Decisions which can have a major bearing on the British constitution are … too important to be learning exercises for barely qualified judges or unelected and unaccountable court officials
The other objections – unmanageable backlog of cases, disproportionate representation of tiny countries – need not detain us here. Again, whatever one makes of the politesse or otherwise of these charges, they need to be made if only to be rebutted. Strasbourg, like any institution, is not beyond criticism, and this criticism must descend to detail otherwise there is nothing to discuss.
As Lord Hoffmann said
The judges are elected by a sub-Committee …on which the UK representatives are a Labour politician with a trade union background and no legal qualifications and a Conservative politician who was called to the Bar in 1972 but so far as I know has never practised. They choose from lists of 3 drawn by the governments of the 47 members in a manner which is totally opaque.
If the court is “barely able to cope” this has implications not only for its staffing arrangements. It resounds at a constitutional level. Here.
An exit strategy?
In his public lectures Lord Hoffmann has already suggested the unthinkable – withdrawal from Strasbourg’s jurisdiction. The impossibility of so doing is more a problem of perception than fact; it is always a policy option open to the UK. The options discussed in the paper have already drawn fire. But there is a difference between opinions worth paying attention to and opinions that are not. A firefight should not distract attention from these serious proposals.
Any suggestion of rowing back from commitments we made under the Convention are always met with magisterial pronouncements about our relationship with the EU, whereupon the proposer usually scuttles for cover. Again, this report squares up quite admirably to that challenge, reminding us that this, like the Strasbourg issue, is not beyond discussion and is so “unclear” in the constitutional documents that it is at least up for negotiation.
Reports of the linkage between adherence to the European Convention and membership of the European Union have been much exaggerated. The EU under the Lisbon Treaty is indeed due to become signatory of the ECHR but this is no more to the point than the fact that the EU is now constituted as a treaty-signing body, like one of its member states. Nothing in the relevant treaties requires continued adherence to the ECHR as a condition of continued UK membership of the EU. To repeat a well-rehearsed aphorism of statute interpretation, if they had meant to say that, they would have said it. This is underlined by the explicit requirement that ECHR membership is now required for accession; by implication, therefore, it is not an obligation for existing member states.
The report advocates withdrawal from Strasbourg jurisdiction, not from the basic tenets of the Convention. The proposal is that the UK would remain a signatory to the ECHR but that decisions as to its application would be decided in UK courts alone. Future appellants would no longer have any right to petition the Strasbourg court. They could take their cases as far as our own Supreme Court, but no further. Australia and New Zealand have done it with the Privy Council, whose authority was much more clearly binding on the appellate courts of those countries, so why not the United Kingdom?
The massive fudge of the proposed “British Bill of Rights” has been allowed to occupy centre stage for far too long, partly because of our preoccupation with law-making rather than with law-removal, but mainly because of the unwillingness of the Strasbourg-sceptics to admit what they’re really on about . As the report says, the adoption of such an instrument would address none of the problems. It is pure wishful thinking to suggest that a “Bill of Rights” would somehow create more respect for British law in Strasbourg, winning a few inches on our “margin of appreciation”. In any event there would be nothing to stop a case being brought in Strasbourg where whatever has been drafted in to a document could not be easily trumped by those in the Convention.
In that case, the Strasbourg Court would, on past form at least, be very likely to assert the primacy of its rights over “British” rights.
It is hard to see, in practical terms, how British withdrawal from Strasbourg would not entail withdrawal from the Convention itself and indeed the Council, and the report acknowledges that such a move may well have this consequence. But again, the difficulties are diplomatic rather than legal in the strict sense of the word; and as the report points out
This concern should not be given too much weight. When the issue at stake is the welfare and integrity of the UK’ssystem of justice and democracy, it may be argued that this must be the predominant consideration.
However battered this report may be by its critics, the debate is far from over. And in time the political and diplomatic objections might even fall away, leaving the lawyers to spar over the whitened bones of this particular carcasse.
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