The cat paradox

5 October 2011 by

Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.

First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself.  Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.

And indeed the Strasbourg Court said in A.A v  United Kingdom:

it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Thus, regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant constitutes an interference with his right to respect for private life. While the Court has previously referred to the need to decide in the circumstances of the particular case before it whether it is appropriate to focus on “family life” rather than “private life”, it observes that in practice the factors to be examined in order to assess the proportionality of the deportation measure are the same regardless of whether family or private life is engaged (Üner, …§§ 57-60).

With such a wide spectrum of possible ties thus envisaged, it is hard to see how a claim to Article 8 can ever be defeated. The fact that it is sometimes denied suggests, if anything, that it is unevenly and unfairly applied, if it really means what Niemietz and subsequently Üner and A.A. say it means.

The second point is the tendency, also in evidence at last night’s seminar, to trivialise objections to the Human Rights Act and the judgments of the Strasbourg Court. To be sure, laughing at your enemy may be an effective way of undermining his cause, but not among his supporters, only yours. The ever so slightly bigoted delegates at the Conservative Party Conference, it is suggested, are so set on destroying the Human Rights Act that they took as face value a misplaced judicial joke about a pet cat and ran with it. Whilst they may have been unwise to pick on that particular judgment – which as Adam Wagner points out involved the EU law on free movement on persons rather than Article 8  although arguably Article 8 forms part of the “general principles” of EU law so was relevant to that case as well – the point is a valid one and will not go away;  see our posts on the issue of deportation of foreign criminals here, here,  here, here and here. The sheer frequency that we find ourselves reporting on these cases on this blog alone is illustrative of the scale of the problem.

The third matter is one which Lord Justice Laws raised, as a question rather than a statement, and an “uncomfortable thought” at that. The resentment about these deportation cases is part of a more widescale sense of exasperation about Strasbourg and the Convention. As Laws LJ put it, we were beginning to develop a “vigorous” domestic jurisprudence of human rights before the Human Rights introduced the Convention into domestic law. The influence of a “graduated approach to proportionality” had two benefits; it took root in society without being perceived as being imposed from above, and it even influenced Strasbourg case law – see for example the extensive quotations from Lord Bingham’s judgments in Pretty v DPP when the Strasbourg Courts came to consider the case in Pretty v United Kingdom. But the passing of the Human Rights Act meant the transformation of Strasbourg jurisprudence from an inspirational source of norms to a compulsory source of law.

one of the main grouses, complaints we have about the human rights enterprise – why should judges decide matters of social policy at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, creates a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?

I listened attentively to the discussion opened up by this question, and nobody I believe attempted to answer it. Dr Ed Bates of Southampton University restated it slightly differently; what, he asked, is the role and proper function of Strasbourg? The disparity between Strasbourg is on social policy grounds – that is the focus of the discontent. David Pannick QC’s “principled” answer was that the Court (and by implication, judges and lawyers) have a role because there are certain issues which if left to the political processes will not be decided in a principled fashion because certain minorities in society – prisoners and foreigners for example – are not represented in that process. One cannot leave it to the politicians to do this job; lawyers have “objectivity”. Nobody in a room full of lawyers heckled him on this point.

Pannick’s practical answer to the standoff between Strasbourg and the UK was less tendentious; Strasbourg, he said, needs to address with greater clarity why it is overturning the judgment of a national supreme court. An important task of an international court is not just to decide but to persuade, particularly when the national case contains powerful informal reasoning.  Strasbourg should only intervene when the national court has made an error of principle; if it doesn’t it will continue to lose support in this country. The only practical solution is an “accommodation on both sides”; taking for example the stalemate over prisoner votes . The Strasbourg court has said an absolute bar is unlawful. It is therefore open to the Government to come forward with a solution and Strasbourg should recognise that the UK is a jurisdiction with strong expertise on human rights, which should be given considerable weight.

Whether that diplomatic solution will be followed is moot; judges are only human after all and the temptation to gang together as a federal Supreme Court is overwhelming. And  the representatives from other Council states may feel it somewhat invidious to adopt a softly, softly approach to some jurisdictions such as the UK with “respectable” appellate courts, whilst coming down hard on the Moldovans and Russians.

Professor Philip Leech, whose European Human Rights Advocacy Centre advises individuals from a range of Council States on taking cases to Strasbourg, takes the wider view. His interpretation of Strasbourg’s role is less of a self-aggrandising power-grabbing institution than one that has had to respond to systemic abuses and “clone” cases by dispensing with its merely declaratory function and adopting a more prescriptive role, specificially addressing systemic shortcomings, like prisoner mistreatment (Turkey); length of proceedings (Italy) and non-implementation of national court rulings (virtually everywhere apart from the UK). As the UK takes the chair of the Committee of Ministers in November, this country will see more clearly that the Strasbourg Court is a “safety net” for these arguably more serious systemic cases from other countries of the Council of Europe.

Whether this will render the Strasbourg Court and the Convention any more acceptable in the eyes of its local critics remains to be seen.  I wouldn’t put money on it.

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  1. Lucy says:

    Obviously this is a niche area, but I don’t get a sense that the Court of Protection’s attitude towards human rights is that I don’t get a sense of a court being bound by a “compulsory source of law”. The inspirational character of the ECHR is still alive and well there. Domestically, in the CoP, we have judgments that go far beyond anything that has come out of Strasbourg. The old common law was frankly pretty deficient when it came to the rights of incapacitated adults (e.g. HL v UK, 2004). And the reality is that in terms of ‘safeguarding’ and other policy issues, the statutory framework is extremely patchy, and so judges are left to pick up the pieces where politicians have for decades skirted around doing anything.

    On a separate point, I’m struck by the contrast between those who feel the ECHR rights are ‘compulsory’ since the coming into force of the HRA, and Francesca Klug’s comments before the JCHR on the mirror principle:

    “…the self-denying ordinance that the domestic courts have taken upon themselves- with no requirement to do so under the statute- whereby they are now interpreting the Human Rights Act as no more and no less than what the courts are saying in Strasbourg…. So instead of developing our own British case law, which they began to do in the early days under the Human Rights Act… they are now effectively reading in the words “bound by”…the courts themselves appear to be turning the Human Rights Act into an incorporated treaty rather than the Bill of Rights I believe it was intended to be. That could be reversed quite easily by the courts should they choose to do so”

  2. mkp says:

    What does the home secretary propose to do about foreign criminals who rely on other Convention rights other than Article 8?

    She seemed to exclusively oppose the family life limb of Article 8. The sad thing is that a lot of tabloid readers who believe what she said are really really happy!

    Cheers to Obiter J for his 5 points on the Inner Temple seminar.

  3. ObiterJ says:

    Many interesting “angles” in this post which clearly emerged from the Inner Temple seminar.

    1 – an elementary point – the correct description of a Convention right must be used – right to respect for private and family life. “short” terminology can sometimes mislead.

    2 – “As Laws LJ put it, we were beginning to develop a “vigorous” domestic jurisprudence of human rights before the Human Rights introduced the Convention into domestic law.” I agree, but it was a slow development. The Uk was found wanting in too many cases taken to Strasbourg. Also, the UK judiciary did not have a “tool” to “read down” (etc) an Act of Parliament.

    3 – The interests of minorities are important but the Convention is not just about minorities. Many cases are brought on behalf of various categories of minorities. This can result in the Convention getting a bad press. Reasonable majority opinion is also important. The “balance” is the difficulty.

    Judges have to decide the case before them using the available legal tools. Judges do have objectivity but what they do not have are the processes available to a democratic legislature to determine where the balance should lie over difficult questions.

    4 – With almost 50 State signatories, it would be unwise and invidious to have some kind of “rating” system.

    5 – the Convention and the HRA 98 are not going to be made any more palatable to some of the power-hungry politicians on the right of British politics and there are a few up and coming “stars” who will need to be watched carefully.

  4. Both Theresa May’s and Schrödinger’s cat have always “been there”. The question was whether or not Schrödinger’s cat was alive. The cats exist but both have been routinely misrepresented. Schrödinger’s cat is at least rocket science, May’s is not. One hopes that Maya is enjoying all her nine lives.

  5. You say: “and non-implementation of national court rulings (virtually everywhere apart from the UK)”.

    I say Smith v Scott for example?

  6. As a society we should be seeking to lighten the load on citizens. The basis of the Law is the Public Interest and this has been eroded by parliaments taking away basic human freedoms so that there is no area of life that is not covered by intrusive and unnecessary laws.

    The Courts have the basis of common law and the ability to protect citizens from the abusive power of the State but in the last 15 years Parliaments have made it more difficult as citizens are burdened with too many laws.

    The Human Rights Laws are the last bastian and without them we would all be engulfed in tidal waves of petty laws designed for slaves not free men and women

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