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  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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