Can Britain “ignore Europe on human rights”?
23 October 2011
Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.
But can it? And did Lord Judge, the Lord Chief Justice, really say that?
To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.
For the record, this is the relevant bit of Lord Judge’s evidence:
Strasbourg should not always win… There is yet a debate to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means… when it said that the courts in this country must take account of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight and in most cases follow them, but not necessarily.
What was he referring to? A very interesting debate about the extent judges need to pay attention to European Court of Human Rights rulings. The Human Rights Act (HRA), which incorporated the European Convention on Human Rights into UK law, made clear in section (2)(1)(a) that courts “must take into account” any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.
Not “follow” or “ignore”, but “take into account”.
The wording was chosen carefully by Parliament. A key aim of the HRA was to “bring rights home“. This meant rather than having to go to the European Court of Human Rights in Strasbourg, people in the UK could enforce their rights in domestic courts. And, just as importantly, UK judges could begin to develop their own case law on human rights and so not have to rely on Strasbourg and its impartial understanding of UK social issues.
Parliament never intended for Strasbourg to be a final court of appeal for our own courts, and some, including former law lord Lord Hoffmann and the Bill of Rights Commission, have legitimately questioned whether the court has therefore exceeded its proper role.
So, courts only have to take Strasbourg decisions into account. This means they cannot ignore decisions, and sometimes – but not always – will probably have to follow them, which is exactly what Lord Judge said and Frances Gibb reported. There is an important legal question (see, for example, the Supreme Court’s decision in Horncastle) as to what “take into account” means, as reflected by Lord Phillips’ and Lord Judge’s fairly minor quibble at the committee, but it certainly does not mean “follow”, or for that matter “ignore”.
In any case, as interesting as the “take into account” debate is, that is not what the Times’ headline referred to. It said not the courts but “Britain” can ignore Europe on human rights. This is simply wrong.
Because of Article 46 of the European Convention on Human Rights, the government must “abide by”, that is, it must follow – not ignore or take into account – final decisions of the European Court of Human Rights. The UK Parliament willingly signed up to Article 46.
This is why the prisoner voting decision has caused such a political problem. The court made an unpopular ruling which Parliament has to follow, unless it withdraws from (or ignores) its own commitment to abide by decisions of the court.
It may seem odd (as I have said before) that Parliament must follow what our courts need only take into account, but it does reflect the very different role of the courts and Parliament, and one which Parliament has explicitly chosen. To understand human rights law, you really have to understand the abide by / take into account dynamic.
Therefore, the most that can be taken from Lord Judge’s comments is that “British courts can, sometimes, choose not to follow Europe on human rights, but Britain has to abide by it”. Not as catchy a headline, but right.
And for that reason, The Times goes on to the legal naughty step. Theresa May prefaced her now famous cat immigration story with “I am not making this up”. There are plenty of valid and important debates to be had about human rights law, but making things up will only skew them and spread more misinformation.The Times should know better.
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You can watch Lord Phillips and Lord Judge’s evidence to the House of Lords Constitutional Committee here and read the Council of Europe’s discussion on this topic here: Contribution to the Conference on the Principle of Subsidiarity
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Lord Phillips comments –
‘The Strasbourg court has the last word, It gives the definitive decisions on the scope and meaning of the convention’. Not quite what Lord Judge said.
http://www.guardian.co.uk/law/2011/oct/26/uk-supreme-court-european-court-human-rights
The Supreme Court of the Russian Federation stated as follows:
“The Convention on Human Rights and Fundamental Freedoms has a mechanism of its own which includes a compulsory jurisdiction of the European Court on Human Rights and a systematic monitoring over the execution of the decisions of the Court by the Committee of Ministers of the Council of Europe. In accordance with paragraph 1 of Article 46 of the Convention these decisions with regard to the Russian Federation adopted finally shall be binding on all State bodies of the Russian Federation including the courts. The implementation of the decisions related to the Russian Federation presumes, if necessary, the obligation on the part of the State to take measures of a private nature aimed at eliminating violation of human rights stipulated by the Convention and the impact of these violations on the applicant as well as measures of a general nature to prevent repetition of such violations.
The Supreme Court of the Russian Federation stated as follows:
“The Convention on Human Rights and Fundamental Freedoms has a mechanism of its own which includes a compulsory jurisdiction of the European Court on Human Rights and a systematic monitoring over the execution of the decisions of the Court by the Committee of Ministers of the Council of Europe. In accordance with paragraph 1 of Article 46 of the Convention these decisions with regard to the Russian Federation adopted finally shall be binding on all State bodies of the Russian Federation including the courts. The implementation of the decisions related to the Russian Federation presumes, if necessary, the obligation on the part of the State to take measures of a private nature aimed at eliminating violation of human rights stipulated by the Convention and the impact of these violations on the applicant as well as measures of a general nature to prevent repetition of such violations. The courts within their scope of competence should act so as to ensure the implementation of obligations of the State stemming from the participation of the Russian Federation in the Convention on Protection of Human Rights and Fundamental Freedoms.” http://www.londonmet.ac.uk/londonmet/library/i81669_24.doc
Note the binding nature upon all state bodies including the courts.
Well, as this is what the Russian Supreme Court has said, I am assuming that there is nothing in Russia’s legislation that demands their national Courts perform their duties in this way i.e. consider themselves bound by Strasbourg decisions per-se.
The UK, however, has primary legislation in the form of section 2(1)(a) of the HRA which requires only that the Courts ‘take account’ of any Strabourg decision.
Thus, unless the UK enact primary legislation to this effect, I doubt the UK national Courts are going to ever, quite rightly, consider themselves bound by Stasbourg decisions.
FatherDougal points to what he sees a fallacy. On the one hand, Article 53 says:
ARTICLE 53
The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.
The key words there are “any case to which they are parties.”
Thus, the UK is under an obligation to implement the decision in Hirst No.2.
On the other hand, the Human Rights Act 1998 requires UK courts to take account of decisions of the Strasbourg Court etc. when deciding cases before them. This they do and they frequently follow decisions – especially Grand Chamber decisions. However, the 1998 Act does not permit the judges to simpy override Acts of Parliament. The most they can do is make a declaration that a provision in an Act is incompatible with the Convention.
Hope this addresses the apparent fallacy !!
I did not mention the declaration of incompatibility because in the case of prisoner’s votes, to give full effect to Hirst No 2, the legislation will be compatible, or at least one would assume.
Rob wrote – “My understanding is that the Executive entered into the commitment on behalf of the UK. But can the Executive bind Parliament in this way? I doubt it.”
The European Convention on Human Rights is an international treaty and such treaties are negotiated by the executive and entered into under “Royal Prerogative” powers. It became the Convention to lay new treaties in draft before Parliament for 21 days – (known as the “Ponsonby rule”). The position alters somewhat under the Constitutional Reform and Governance Act 2010 Part 2.
http://www.legislation.gov.uk/ukpga/2010/25/part/2
‘…Therefore, the most that can be taken from Lord Judge’s comments is that “British courts can, sometimes, choose not to follow Europe on human rights, but Britain has to abide by it…’.
This is exactly why the public are so confused, in fact, so are most lawyers. This very premise appears to me to be a fallacy. The concept that the judiciary must ‘take account’ and that the government ‘must abide’ are directly at odds with each others.
Lets take the prisoner votes saga. (I have not given this too mouch thought thus I welcome any corrections or challenges to what I suggest)
The EctHR has pronounced a judgment (Hirst No 2). Now, according to Article 46, the the government must ‘abide by’ final decisions of the European Court of Human Rights, that is, comply with Hirst No 2. Lets say, they do abide by the decision thus enact legislation to give full effect to the judgment and all is well. A little time after, for whatever reason, there is a challenge in the UK national courts. At this point, our national courts need only ‘take into account’ any decision of the ECtHR. There will, however, be nothing to ‘take into account’ because the national courts will now be bound by the newly enacted legislation thus the issue will become one of stautory interpretation maybe.
If the government fail, however, to abide by the decision, then the national courts are only bound to ‘take into account’ any decision and so long as they do, are entitled to decide not to follow it.
“Because of Article 46 of the European Convention on Human Rights, the government must “abide by”, that is, it must follow – not ignore or take into account – final decisions of the European Court of Human Rights. The UK Parliament willingly signed up to Article 46. This is why the prisoner voting decision has caused such a political problem. The court made an unpopular ruling which Parliament has to follow, unless it withdraws from (or ignores) its own commitment to abide by decisions of the court.
“It may seem odd (as I have said before) that Parliament must follow what our courts need only take into account, but it does reflect the very different role of the courts and Parliament, and one which Parliament has explicitly chosen.”
I’d be interested in your view on the following argument:
You say that ‘Parliament’ has a commitment to abide by decisions of the court, ‘one which Parliament has explicitly chosen’.
Is it true to say Parliament has chosen this? I’m not aware – though I could be wrong – that Parliament is a party to the Convention or has formerly accepted constraints of the Convention. My understanding is that the Executive entered into the commitment on behalf of the UK. But can the Executive bind Parliament in this way? I doubt it.
Parliament has, of course, formally incorporated the Convention through the Human Rights Act – but as you say, that only requires courts to ‘have regard’ rather than ‘abide’ by the Court’s decisions. Could it not be argued that Parliament has – for itself and for the courts – established one limit of ECtHR authority, and the Executive has accepted another. And could the problem on prisoner votes not be that Executive is committed to following the Court decision, but Parliament, which is not required to follow the Court, has no intention of doing so. Is the problem one of Executive over-reach?
The link to ‘another blog’ in the piece seems to link to the Independent’s wackiest stories (yetis and such like). However this – http://wp.me/pfo1I-6h – links to my piece on this issue (Lord judge, not yetis), including Lord Phillips’s view that Strasbourg has to “win” because UK judges will operate according to the rule of law that (implicitly) says governments intend to abide by their treaty conventions. We signed the ECHR so it must, in law, be assumed that we meant to follow it.
Can Britain “ignore Europe on human rights”?
Yes, evidence is Hirst v UK (No2).
Should the UK ignore its international law obligations?
No.
As much as I get pleasure correcting Adam’s mistakes, I should not need to.
I have raised the issue of Lord Judge’s comment with the House of Lords Constitution Committee. Given the subject matter of judicial appointments and notes to witnesses, I contend that Lord Judge’s personal view was not appropriate. It is also contended that Lord Judge strayed into politics and this is not in keeping with his role as the LCJ. In my view, Lord Judge should apologise or failing this he should resign or be sacked.
Adam has erred by stating that “Parliament never intended for Strasbourg to be a final court of appeal for our own courts”. The UK signed up to the Convention, and signed up to the Court having jurisdiction to hear applications by individuals from the UK. The rules of the Court require that all domestic remedies have been exhausted before submitting an application. It follows that the Court is the final Court of Appeal, or Supreme Court of Human Rights in Europe.
Adam has also erred in stating “have legitimately questioned whether the court has therefore exceeded its proper role”. The mere fact of questioning a position does not make the question legitimate.
According to Lord Bingham: “The primary aim of the European Convention was to promote uniform protection of certain fundamental human rights among the member states of the Council of Europe…The expectation therefore is, and has always been, that a member state found to have violated the Convention will act promptly to prevent a repetition of the violation, and in this way the primary object of the Convention is served”(paras 3 and 5). http://www.bailii.org/uk/cases/UKHL/2005/14.html
Clearly my legitimate expectation has not been met, the UK has not acted promptly and as a result there has been a repitition of the violation.
Adam has also erred by claiming that only the government is bound by Article 46 of the Convention. The Member State is bound, that is, the 3 arms of the State, the Executive, Parliament and Judiciary. I should not need to keep repeating this but Adam appears to suffer from a legal blindspot in relation to this position. The government is challenged in the High Court, the State is challenged in Strasbourg.
Adam states “This is why the prisoner voting decision has caused such a political problem. The court made an unpopular ruling which Parliament has to follow, unless it withdraws from (or ignores) its own commitment to abide by decisions of the court”. My case is a legal case warranting a legal solution, as such that hardly makes it a political problem. The cause of the political problem is not my case, per se, rather the political problem has been caused by Lord Falconer, etc, and the UK’s response or non response to my case. The Court did not make an unpopular ruling. On the contrary, the ruling is unpopular to certain elements within the UK. Labour’s consultation exercises found that the majority 47% favoured all convicted prisoners getting the vote and only 4 people, not 4%, favoured the government’s minimalist approach of only giving the vote to those serving 4 years or under or 12 months or under. Therefore, to claim it is unpopular is not a true statement.
In response to Adam’s reply to Stephen. The GC stated in my case that it is a case of fundamental importance, and Lord Bingham stated that the Convention contains fundamental human rights.
I hope that this has made things clearer?
“The Council of Europe and the European Union (EU)” writes Obiter J “are NOT the same bodies. Many people seem to still think that they are.”
Just so: and I heard a rather depressing example on this morning’s “Broadcasting House” on Radio 4, when during a discussion about the possibility of a referendum on EU membership Kim Howells cited as one of the issues “European judges making insane decisions based on the most spurious of so-called human rights criteria”. (No: I didn’t mishear – I’ve just checked it on the BBC iPlayer.)
This may, of course, have been an extremely subtle reference to the Treaty of Lisbon’s Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the ECHR – but my guess is that he simply mixed up the ECJ and the ECtHR. If a former Minister of State at the Foreign Office can confuse the two institutions it’s hardly surprising if the public at large don’t understand which is which.
“Magna est veritas et praevalebit” – or, there again, perhaps not…
The European Convention on Human Rights is something which, along with 46 other countries, the United Kingdom has agreed to adhere to apply. The Convention commands signatory States to secure Convention rights to everyone within the State. “Everyone” is important: there are no outlaws no matter how unpopular the individual!
The Convention binds the UK so far as international law is concerned. The adherence of signatory States to the Convention is monitored by the Council of Europe’s Council of Ministers and it is they who determine what action (if any) will be taken against any recalcitrant State.
From 1953 to October 2000, the European Convention was “out there” binding the UK but was referred to relatively infrequently in cases brought before the British courts. The Convention could have been raised in legal argument and, sometimes, it was. However, it was seen as “persuasive” by the British judges and not binding. On an everyday basis, most British lawyers paid little to no attention to the “jurisprudence” of the European Court of Human Rights at Strasbourg. In fact, I recall that most practising English lawyers knew practically nothing about it !! Nevertheless, some leading British lawyers recognised the value of the Convention and, over the years, a considerable number of cases were taken to Strasbourg where, to the shock of many in the British legal and political systems, the UK was found wanting.
This leads to the question of whether the Human Rights Act 1998 (in force from October 2000) “incorporated” the European Convention into our law. Although the word “incorporation” is frequently used, I do not think that the Convention was, in the strict sense of the word, incorporated even though the Convention was reproduced as a Schedule in the Act. The Convention remains as an external instrument which, by the 1998 Act, the courts in the U.K. must – by command of Parliament – take into account. It is like a tool which is used by the judges as a means of weighing UK legislation in the balance. To repeat: all of this has not only been made possible but has been commanded by our own Parliament.
When all domestic legal avenues have been exhausted, it remains possible for the aggrieved party to petition the court at Strasbourg. If the court accepts the petition (and many are rejected) then the case will be argued at Strasbourg and, certainly if the matter is before the Grand Chamber, there will be a final ruling on the meaning of the Convention. Hence, the European Court is the final arbiter as to the meaning of the Convention.
Instead of the 1998 Act, it would have been possible to have adopted a British Bill of Rights and some argued for this at the time. The Bill of Rights would, no doubt, have included many of the European Convention rights. Such a Bill of Rights would also have been an instrument against which UK legislation was assessed. However, had this course been adopted by the UK, the European Convention would still have been there. It would still have bound the UK internationally and the citizen would still have been able to go to Strasbourg if necessary. Rather than have a British Bill of Rights AND the Convention, the government of the day opted to use just the Convention as the yardstick. At the same time, Parliament ensured that it retained its right to legislate contrary to the Convention and, in that event, the UK would either have to derogate from the Convention (where this is permitted) or “take the non-compliance hit” from the Council of Europe.
At the present time, the 1998 Act and even the European Convention are under some attack by vocal media elements and some politicians. People should, as ever, be careful what they wish for. Here I must stray a little into politics and, in doing so, I realise that I skate on thinner ice. However, observers of the coalition government’s approach to matters such as the health service and legal aid ought, in my view, to be persuaded that human rights are not necessarily as safe in the hands of British politicians as we would like. The whole approach of the government appears to be “minimalist” in terms of what it is prepared to guarantee to the British people.
A note re the convention and the EU seems appropriate. The Council of Europe and the European Union (EU) are NOT the same bodies. Many people seem to still think that they are. The Council of Europe is responsible for the human rights convention. However, the EU has its own Court of Justice which has adopted what it refers to as fundamental principles of law. Included in those principles are rights within the European Convention on Human Rights. Furthermore, the EU is itself in the process of becoming a signatory to the Euiropean Convention on Human Rights.
“Parliament never intended for Strasbourg to be a final court of appeal for our own courts, and some, including former law lord Lord Hoffmann and the Bill of Rights Commission, have legitimately questioned whether the court has therefore exceeded its proper role.”
I am slightly puzzled by the above extract. If the EctHR is not the final court of appeal for our own courts then what is its purpose? If our domestic courts issue a perverse ruling on a human rights matter and all domestic remedies have been exhausted then can not the appellant take the case to Strasbourg? If Strasbourg finds for the appellant even after allowing for a margin of appreciation then is not the ECtHR de facto a court of appeal?
Also, if Article 46 binds signatories to the decisions of the ECtHR then is not the requirement to “take into account” those decisions countermanded?
Stephen – thanks for the comment.
As to your first question, arguably the European Court of Human Rights should not be an appeal court which sits above our own Supreme Court. If it was, then it would be come effectively a European federal appeal court. Instead, goes the argument, it should only taken on cases of fundamental importance. See the part on subsidiarity in the Bill of Rights commission advice linked to in the post.
Second question – the courts need to take decisions into account, Parliament has to abide by them. So when deciding a human rights case in the UK, judges need not follow Europe. That is a point of legal principle. Parliament, however, need to abide by the rulings by, for example, giving some prisoners the right to vote.
Hope that has made things clearer, although I fear not!