Beanstalks and golden eggs

In her lecture at Gresham College last week Baroness Hale speculated how high the human rights tree might grow before it presents a threat to the surrounding constitutional ecosystem. Our words, not hers, but she preferred the arboreal image to the more established but inherently nonsensical notion of a “living instrument” as an expression of the Convention’s adaptability over time. This tree, she suggested, should not be allowed to transmogrify in to a gigantic beanstalk, crashing through the sky, inspiring false dreams and unrealisable ambitions.

The seeds of this tree – or treacherous beanstalk, whichever way one prefers to look at it – were sown in the seventies when the Strasbourg Court chose a “purposive” rather than a literal construction of the language used in the Convention. This means that judges enforcing the norms of the Convention need not confine themselves to the terms as stated or clearly implicit in the written text, nor to the purpose that might be derived from the preparatory materials and the historical context. Thus in the landmark case of Golder v United Kingdom, the Court ruled that Article 6 not only conferred an explicit right to a fair trial but implied that citizens should be granted the right of access to justice, something that could not be discovered within the four corners of the Convention as a document.

Then the “birching” case came along and the majority of the Court held – in the teeth of the British judge’s objections – that judicial corporal punishment on the Isle of Man breached the Convention’s prohibition on torture and inhuman treatment, although nothing in Article 3 or the negotiating records of the Convention  suggested that the anti-torture idea should extend so far. So this was the second idea,  that the Convention must be interpreted in the light of present day developments and practices among the member states.

The third idea, first articulated in Airey v Ireland, is that the rights protected must be ‘practical and effective’ rather than ‘theoretical or illusory’

As Baroness Hale, explains, there are “at least” four different ways in which the Convention jurisprudence has developed beyond the expectations of the original parties, some of which have proved more problematic than others. She categorises them as follows:

(a) the interpretation of the ‘autonomous concepts’ in the Convention;

(b) the implication of further rights into those expressed;

(c) the development of positive obligations; and

(d) the narrowing of the margin of appreciation permitted to member states.

Each category brings a series of definitional problems in its train. The “autonomous concept” doctrine in (a) has set off a cascade of worthy but sterile litigation about the question of what kinds of public law claims now count as ‘civil rights’. See Nicol J’s fascinating judgment in Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 for a condensed history of this litigation and our comment on it here.

In describing the development of implied rights Baroness Hale wisely steers clear of the flourishing colony of rights in the penumbra of Article 8 and touches upon instead on the obligation on States to respect the right to life, which has come to imply a duty to investigate suspicious deaths, and the implied right of everybody including prisoners to participate in Parliamentary elections under Article 3 Protocol 1.

She does raise the lid of Article 3 to look at the evolution of “positive” obligations under (c), noting the glimmering of  embryonic socio-legal rights in cases like Limbuela (it is inhuman and degrading to deny certain categories of asylum seeker access to state support). The creativity of the Strasbourg Court in this regard has attracted perhaps the most vociferous criticism in the current debate about the viability of the Convention and its jurisprudence in a recession-hit Europe, since it is argued that the Court was not mandated to determine what standard of social welfare should prevail in any of the Council member states.

The attenuation of signatory states’ manoeuverability under the Convention – the narrowing, in other words, of their “margin of appreciation” –  is exemplified in the stand-off over prisoner voting and by the response of local courts to Strasbourg rulings, most recently the decision by the Supreme Court to bow under the Strasbourg yoke by interpreting the power granted by statute to the authorities to retain DNA evidence to mean no power of retention (see our comment).

In conclusion, Baroness Hale calls for a number of uncontroversial positions to be adopted. The development of the Convention should not actually “contradict”  the Convention’s own express language. Furthermore, such development should

  • be consistent with the established principles of Convention jurisprudence
  • reflect the standards set in other international instruments relevant to the subject-matter in hand (although note the difficulties that arise when this consistency is actually sought)
  • reflect the common European understanding, “however that may be deduced”
  • seek to strike a fair balance, between the universal values of freedom and equality embodied in the Convention, and the particular choices made by the democratically elected Parliaments of the member states.

This is an admirably straightforward acknowledgement of the current problems created by rights litigation. But Baroness Hale fails to address, or to attempt to dismantle, the real juggernaut in the room. This is the widely cherished myth that rights are universal moral attributes that purport to be independent of circumstance or politics.

Rights are nothing more than codified claims to a certain benefit. They do not embody morality in some cryptic or condensed way which must be recognised at all costs. So the acrobatics exhorted upon us by this address and many similar lectures and judicial speeches, though interesting in terms of intellectual contortionism, are entirely unnecessary.  The Convention is nothing more than a programme reflecting a set of historical contingencies, and these generalisations will change as the contingencies do.  Baroness Hale’s own speech reveals how this happens: the prohibition on retrospective illegality under Article 7 meant no punishment without law in the 1950s, but was made to cede ground when it was decided that marital rape should be recognised as a crime in 1992,  and punishment was duly imposed for conduct which was not a crime at the time that it was committed. It was a good thing, we all will agree, that judicial restraint did not allow Article 7 to prevail. But  Convention principles are amenable to infinite interpretation not by virtue of their underlying universality but by the brevity of their expression. Without some honest recognition of this, society’s common sense is trampled in the stampede for a foothold on the stalk of the great beanstalk reaching its upper branches into the elevated clouds of illusion and hollow hope.

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10 thoughts on “Beanstalks and golden eggs

  1. My understanding is that the ECHR was adopted in 1950 by a Council of Europe (which is separate from other EU institutions), established in 1949.
    The Council of Europe cannot make binding laws but the Parliamentary Assembly of the Council of Europe can investigate, recommend and advise.
    In the face of an activist Court, cannot the Parliamentary Assembly not also become more activist and undertake investigations into Court rulings, with a remit to provide advice to the Court (and Committee of Ministers), as well as provide recommendations to the Court and Committee of Ministers on necessary modifications to the European Convention?
    It is only in this way that some sort of semblance of democratic accountability can be attained and that a responsive form of Convention Law development be assured.

  2. You say Baroness Hale wisely steers clear………….of Article 8 ,yet it is the misinterpretation of this article that causes more trouble than any other !
    Everyone is entitled to a private life undisturbed by public authority,but there are exceptions clearly stated when there is danger to public safety and risk of crime etc to paraphrase the act.Clearly foreign criminals are therefore not entitled to a private life in the UK as they form part of the exceptions so studiously ignored by UK judges !
    Similarly the part of the article referring to public morals clearly makes an exception of those who seek to gag their mistresses on the grounds of guarding their own privacy !
    Lastly and worst of all an article 8 clearly designed to protect family life from interference by public authority has been twisted and misinterpreted by UK judges so as to gag parents whose children have been confiscated by public authority, instead of protecting them from it as was clearly the intention of the legislators. Judges through perverse interpretation of the “articles ” (and particularly article 8) are making new laws and those laws are bad laws !

  3. If the convention prohibits “torture and inhuman treatment”, how come we still lock people up in prison cells for up to 23 hours a day? That would be torture to me – and seems inhuman since I would not treat my dog that badly.

    If the convention guarantees everyone the right to private life, how come prisoners are forced to share a cell with 2 or 3 other people – where’s the privacy in that? (It too would be like torture to me.)

    It seems, from this article, that this interpreting of the ECHR might ultimately lead to decisions that are incompatible with protecting the wider public or administering any form of restrictive justice – either that, or we radically redesign our prison system and sentencing policy.

  4. Just to support all Ian Josephs has put to you, being someone denied any rights (as far as I know) having been told by a private law firm years ago (whom are correct so far inasmuch as I’ve contacted hundreds of legal firms, and all in authrotity, only to be ‘stone walled’ and refused any advice or assistance) I am ‘flagged as a whistlblower’ for no reason other than being a mother of a disabled child who is living with a criminal recidivist prone to exceedingly criminal activity? There are no human rights right in the middle of this Royal Borough, not at the moment madam.

  5. “… when the Strasbourg Court chose a “purposive” rather than a literal construction of the language used in the Convention …”

    This is a familiar issue in America and pretty much comes up in every Presidential debate, with the Republican candidate promising to appoint to the Supreme Court only judges who will apply a strict construction of the Constitution and not go fashioning their own agenda instead. In fact the debate is largely false: there is no possibility of a “literal” construction because the wording is so wide. Article 8, which is causing so much controversy at the moment, establishes the right to privacy with all of one sentence. As a legal concept that one sentence is almost meaningless – it has to be fleshed out by the judges, and the amount of “fleshing out” is considerable however wide or narrow the legal right to privacy ends up. So too with the rest of the rights, and indeed with the comparable jurisprudence on the US Constitution, of which about the only part that doesn’t give rise to wide-ranging, heated and of course political debate is the clause requiring Presidents to be aged 35 or over.

  6. Article 8 is NOT just one line,it is already well “fleshed out” as can be seen below :-
    Article 8: Right to Respect for Private and Family Life
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

    The judges simply ignore all the exceptions in para 2 concerning public safety,,disorder,crime ,morals, and freedoms of others!
    Hence criminals are allowed to stay,mistresses are silenced,and so are parents whose children have been confiscated by public authority .All these are thanks to gross misinterpretation by our judges who seem as much out of touch with public opinion as they do with the spirit and inentions of the Human Rights Act.

  7. What I meant was the right itself is given in a single ssentence; para 2 doesn’t tell us any more about what this right to private life actually is …

  8. Let’s view judicial corporal punishment in comparison to solitary confinement, rape in prison, the terrible moral environment of prison, prison violence and diseases, the expense of incarceration, the social costs of incarceration, and the host of negative consequences associated with incarceration. According to Nelson Mandela, solitary confinement is worse than corporal punishment. When conducted in public, and witnessed by the sentencing judge, it would not be abusive. Fact is, judicial corporal punishment has controlled crime everywhere it has been used and is not abolished for ineffectiveness.

    John Dewar Gleissner, author of Prison & Slavery – A Surprising Comparison

  9. It is no comparison between corporal punishment as it is practised on the Isle of Man and torture. It is practiced according to a number of rules. How many children receiving shots (on the head, in the belly…) have denounced their “parents” after spanking that their master was administered by comparing because they made the difference ? How many offender will have their beginning in wrong way stopped since having received corporal punishment by the Court because they knew what await them if they continue ? Where’s the torture ? The goal of Justice is not reduce crime ? The result : Elton John concert in Isle of Man June 16th, 2011 = 2 Policemen ; in Strasbourg December 7th, 2010 when Elton John gave a concert, how many Policemen have been ? 50 ? 100 ? over 100 ? Strasbourg is difficult to give advice to the Isle of Man when we know what’s happening in certain areas as Hautepierre, Meinau, Neuhof-Ballersdorf and others…where the Police do not even dare set foot. From where came the tradition of New Year’s burning cars ? Tradition which is wide spread throughout France…Where do you hear a Policeman asked : what do you call an emergency ? because he was scared to move. Strasbourg city of human’s rights : the area where the European Parliament is, is squared by an army of CRS (Republican Security Company) 24 hours/24 hours, 7 days/7 days. Regulary I see to pass from my flat (I live near the European Parliement) tank riot. Corporal punishment is prohibited in France!
    Where do you prefer to live ?

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