Attorney General nuances the PM’s dig at European Court

31 January 2012 by Alasdair Henderson

The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).

Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.

The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.

No prospect of leaving European Convention on Human Rights

Cameron’s speech on Wednesday was reported in some parts of the media as if, in a bit of a role-reversal, he had really laid down the law to the Strasbourg Court. In fact, on watching an excerpt from his remarks, it is clear he struck a fairly balanced, moderate tone. He did, however, have strong words to say about the size of the backlog of cases facing the Court, and about the difficulties in deporting dangerous extremists as a result of some of the Court’s judgments (an obvious reference to the Abu Qatada decision from the week before).

This, along with some press comment, has led to considerable speculation about whether Cameron would consider pulling the UK out of the ECHR completely. The Attorney-General completely scotched that suggestion in his speech on Thursday night, however, saying that there was “no question of us withdrawing from either the Convention or the Court”. Whatever rumours might be flying around the right-wing of the Tory party at present, the emphatic position was that the Government considers the Convention to be “essential”.

Government thinking on human rights and the European Court

The Attorney-General went on to add some background and further detail to the points made in Cameron’s speech, which gave a bit more of an insight into the Government’s current thinking on human rights.

Firstly, he made the point that despite all the furore over the Court’s judgments, the public doesn’t see the way in which the Human Rights Act most affects their lives, which is the way it requires human rights to be taken into account in every decision made or action taken by a public body. As the senior Law Officer, Mr Grieve explained that a large part of his role is to support, and ultimately have the final say on, the advice given by Government lawyers to civil servants and politicians about whether the particular policy they want to implement or strategy they want to announce is compatible with human rights.

Secondly, leading on from this point, he made the observation that the Human Rights Act has shifted the boundaries between political and legal decision-making. Human rights claims often involve the courts making what are, in effect, highly political or macro-policy decisions. Before any challenge arises in the courts, the duties imposed by the Human Rights Act require Government lawyers to consider whether a proposed action or policy is human rights-compliant. The result is that important domains of policy are removed from political decision-making and made into legal questions. This, the Attorney-General suggested, is the reason why human rights stories and constantly in the news and are a constant source of polemic.

Mr Grieve explained the Government’s two recent initiatives on human rights law are intended as attempts to clarify the correct place of human rights and generate more light rather than heat out of a very contentious debate.

Reform of the Court

The first initiative is (as the Prime Minister was promoting in Strasbourg) to use the UK’s current chairmanship of the Council of Europe to push for reform of the ECHR system. In the Government’s view, procedural reform is necessary to deal with the backlog of over 150,000 cases which has built up and substantive reform is necessary to strengthen the principle of ‘subsidiarity’.

The procedural reforms involve looking again at the admissibility criteria for cases and the selection criteria for judges. Mr Grieve (diplomatically) noted that there was agreement amongst the Member States of the Council of Europe that the quality of the judges is ‘varied’ under the present system. He was also at pains to stress that there was a great deal of agreement between Member States that reform is needed and that, although changes would take some time, the UK had been lobbying hard to make progress. (Indeed, although the A-G didn’t mention this, it seems that the next conference on reform of the Court may well be held soon in Brighton).

The subsidiarity reform is less agreed upon, although Mr Grieve was quick to explain that the principle of subsidiarity was a well-established one, and not a UK-invented novelty. The UK suggestion is that a wider margin of appreciation should be afforded in cases where the State has enshrined ECHR rights domestically and its national courts have decided that the balance of rights in that particular case is correct (another thinly-veiled reference to cases such as Abu Qatada, or the prisoner voting issue). Mr Grieve made this suggestion sound entirely uncontentious, but in fact as discussed here and here, for example, there are valid criticisms to be made of the proposal to ‘strengthen’ the principle of subsidiarity.

The Commission on a UK Bill of Rights

The second initiative being undertaken by the Government is the Commission to consider whether there should be a UK Bill of Rights to replace the Human Rights Act, which is due to produce a report by the end of this year. The Attorney-General set out his own thoughts on the issues that needed to be discussed by the Commission. He made it clear that the Government’s aim, in considering a different means of enshrining the ECHR into UK law other than the HRA, was not to limit any rights. However, he went on to explain that there could perhaps be a principle of greater deference to a minister or other public authority decision-maker in human rights cases. This, of course, would in practice have the effect of reducing the number of successful human rights challenges against public bodies.

Mr Grieve also referred to the recent debate amongst senior judges and legal academics as to what extent UK courts should follow Strasbourg case-law, and suggested it should be made clear there can be some degree of departure from ECtHR jurisprudence, to allow for the application of the principle of subsidiarity. Given the current debate it seems likely Mr Grieve made this suggestion on the assumption that it would also reduce the number of successful human rights challenges. However, in fact it is possible that the UK courts could take a more generous view of human rights protections in a given case than Strasbourg would (see, for example, some Article 9 cases such as R(Begum) v. Denbigh High School, where the House of Lords somewhat reluctantly followed an ECtHR approach to interference with religious freedom which a few of their Lordships considered ‘overly restrictive’).

Softly, softly

If David Cameron’s statement to the Council of Europe wasn’t nearly as tough as some of the press made out, the Attorney-General’s comments were even more careful and considered. However, for all the nuance it was clear from Mr Grieve’s speech that the Government is determined both  to reform the way Strasbourg operates and to seriously review the way human rights are protected in the UK. It was also clear that whilst believing the ECHR to be ‘essential’ and much of the effect of the HRA to have been ‘positive’, there is a strong feeling that some more limits must be set. This issue isn’t going away any time soon…

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Related posts:

• A grown-up speech on human rights reform
• Mr Cameron goes to Strasbourg [updated]
• Is Strasbourg obsessively interventionist? A view from the Court – Paul Harvey