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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