why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create 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?
When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.
The question I posed should have had a qualification added to it. What is the proper role and function of the Strasbourg Court, given that it is an international court? The point here is that the Court is, obviously, not a domestic one. This may imply that there are certain limitations on its authority given the extent to which its rulings may have an intrusive effect on the domestic legal order, with its own system of courts.
Indeed, the Court has frequently recognized these limitations via its application of the principle of subsidiarity and the margin of appreciation doctrine. Similarly, it has shown a considerable reluctance to push forward the boundaries of ECHR law unless the step forward is fully backed by a common European standard on the matter before it. But in this connection, let us turn to the case of Hirst v United Kingdom No2 (the prisoner voting case).
Hirst throws up the question I am asking regarding Strasbourg’s role and proper function. Read the majority and the separate, concurring opinions and one is left with the strong impression that these judges condemned the blanket ban on prisoner voting because the view had been taken domestically that withdrawal of the right to vote was part and parcel of a prisoner’s punishment. The Court’s approach, by contrast, was to the effect that in modern Europe a person should not die a civic death just because he enters prison, prison being about both punishment and rehabilitation, and the return of the right to vote being part of a prisoner’s transition back into society.
Personally I would welcome this position, and, it may be noted, in taking their stance the Strasbourg Judges were able to cite supporting jurisprudence from the Canadian Supreme Court and the Constitutional Court of South Africa. But was it appropriate for the Strasbourg Court, not a domestic Supreme Court but an international treaty-based court, to adopt the stance just noted?
Read the dissenting judgments in Hirst and one senses that the five dissenting judges had this question firmly in mind. They indicated their general sympathy with the argument that some prisoners should be given the right to vote (or, at least, they opposed blanket disenfranchisement). However, in effect they went on to say that there were limitations on the authority of the Court and that the majority had exceeded them. They pointed to the absence of a strongly developed, common European approach on whether prisoners should keep the vote, and they foretold that the Hirst judgment would ‘create legislative problems’ not only for the United Kingdom, but for other States too.
The dissenters warned the majority that ‘the Court is not a legislator and should be careful not to assume legislative functions’. As Judge Costa (today President of the Court) put it, ‘one must avoid confusing the ideal to be attained and which I support – which is to make every effort to bring the isolation of convicted prisoners to an end, even when they have been convicted of the most serious crimes, and to prepare for their reintegration into society and citizenship – and the reality of Hirst (no. 2)’. That reality was one in which the State should benefit from a wide margin of appreciation; in short, it was not for the Court as an international court to find a violation.
Of course, the majority view prevailed. The Court did find a violation and readers of this blog will be very familiar with the story that has followed as regards the lack of enforcement of the Hirst judgment to date. Here we may simply note that the motion debated, and carried by a very large majority, in the House of Commons last February was that ‘legislative decisions of this nature should be a matter for democratically elected lawmakers’.
This might suggest that the debate was about the role of courts generally, so bringing us back to the questions raised by Laws LJ and the response from Lord Pannick (last Tuesday) that the courts have an important role to play when the political process fails to protect vulnerable minorities. However, looking back the comments made by certain MPs in the February debate it seems that their frustration was directed less with the role of the domestic courts (the High Court had said there was no violation in Hirst), and much more to do with the role of the Strasbourg Court sitting above the domestic legal regime.
If the proper role and function of the Strasbourg Judges is, from time to time, to act like a domestic Supreme Court, emulating to some extent the example set by the Canadian and South Africa superior courts, by pushing forward the boundaries of human rights law, then we should congratulate the majority in Hirst. They have fulfilled their mandate, unpopular though they may be for doing so.
If, on the other hand, this is not the Court’s role – because, as the minority in Hirst would have said, ‘we are international Judges, which implies a limited role on our part, because the 47 Convention States each have their own superior courts and Parliaments’ – then we could legitimately criticise the Court for exceeding its jurisdiction.
Which view is correct? You will not find the answer in the Convention and I am not sure one exists, except to say that the reality is that the Court has evolved over the decades into an institution with the capacity to act like (and one has to emphasise the word ‘like’) a Supreme Court for Europe. The extent to which it does in any one case will depend on the approach of the Judges.
The fact is that the Court is the court of last jurisdiction on Convention human rights matters and so in practice can have ‘the last word’ in a particular case, with the States being bound at international law to accept its rulings.
It is in this context, of course, that the Court has come under the spotlight recently. There have been broad attacks on its constitutional legitimacy to act like a European Supreme Court, it has been suggested that there is a need for a democratic override of the Court (personally I think this is unnecessary), and there have also been appeals for the Judges to pay greater attention to the principle of subsidiarity. In reality, of course, these are attempts to clip the wings of the Court and, presumably, help prevent cases like Hirst from occurring in the future.
Dr Ed Bates is Senior Lecturer in Law, University of Southampton and author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.