Who should have the final word on human rights? – Dr Ed Bates

6 March 2012 by hrupdateadmin

This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.

A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).

The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.

A new admissibility criterion is proposed to make it clear that “an application is inadmissible if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”. There is a proviso: the application could be admissible if the “national court clearly erred in its interpretation or application” of the ECHR, or if it raises “a serious question affecting the interpretation or application of the Convention” [see para 23 (c) of the draft].

The proposal is aimed at cutting down the Court’s workload, but to the extent that it is based on the British attitude toward the Convention suggested above, it would be interesting to see the research which underpins it.

My own research into this is at a preliminary stage, but I would tentatively offer these conclusions. When British Human Rights Act cases have reached Strasbourg its jurisprudence has demonstrated that the European Court needs to have compelling reasons to upset the national courts’ qualitative and highly fact-specific assessment, based on Convention principles, that there had been no breach of the ECHR. There may be occasional, rare exceptions, but this is the approach Strasbourg takes in the great majority of instances. (For example, there was no (potential) violation of Article 3 in the recent Abu Qatada case).

Who has the last word on the interpretation of the ECHR?

Some of the most controversial Strasbourg judgments concerning British cases recently have occurred because the European Court adopted a different position on a key question of Convention law to the domestic courts. So these cases would raise a “serious question affecting the interpretation or application of the Convention” and could well survive the new, proposed admissibility criterion being proposed.

Examples of this type of case include:

• The conclusion that there would be a violation of Article 6(1) (‘flagrant denial of justice’) if a person were to be deported to a country where there is a real risk that evidence obtained by torture would be used in a trial against him (The Strasbourg Court’s conclusion in Abu Qatada, in agreement with the Court of Appeal in that case, but in disagreement with the House of Lords on this aspect of ECHR law – the United Kingdom may seek a referral of the matter to the Grand Chamber);

• The conclusion that, despite the margin of appreciation available, a blanket ban on convicted prisoners voting in the UK violates Art 3 of Protocol 1 because it is disproportionate (a proposition rejected by the High Court and, apparently, by many MPs, but upheld by a Chamber and then a Grand Chamber in Hirst v United Kingdom (2005));

• The conclusion that the concept of ‘jurisdiction’ under Article 1 ECHR should be interpreted and applied so as to cover the claims brought by all applicants in Al-Skeini v United Kingdom (a broader reading of the Convention’s extra-territorial reach adopted (unanimously) by the Strasbourg Grand Chamber than was accepted by the House of Lords; the latter adopted a restrictive approach to Article 1, partly on the basis that the case could be ‘appealed’ to Strasbourg);

• The conclusion that storage of information on an extensive DNA database, as utilised on the facts in the Grand Chamber judgment of Marper v United Kingdom raised issues of “fundamental importance” under Art 8(1) ECHR (the House of Lords apparently regarding the interference with Art 8(1) as less serious than Strasbourg).

In all the above cases, there may have existed limited, or, in the case of Al-Skeini, sometimes conflicting, Convention jurisprudence for the domestic courts to go on. They might therefore point to the usefulness of an advisory opinion procedure within the ECHR system – on which see para 19(d) of the Brighton Declaration.

Although the above cases could be presented as Strasbourg substituting its view on the Convention for that of the national courts, the more accurate observation is this. The cases demonstrate that the Strasbourg Court is the authoritative body on the interpretation of Convention law, and violations of the Convention are likely to occur when it reaches a conclusion on the scope or extent of ECHR rights that differs from the domestic courts.

With this last point in mind it is interesting to see what else the draft Brighton declaration says about the principle of subsidiarity and “the interaction between the Court and national authorities”.

The draft Declaration proposes that, for reasons of “transparency and accessibility” (are these the real reasons?), “the principles of subsidiarity and the margin of appreciation should be enhanced by their express inclusion in the Convention”, which should be amended accordingly (Para C 19(b)). The draft Declaration also calls for “a strong and open dialogue between the Court and national authorities as a means of developing an enhanced understanding of their respective roles” (Para C 19(c)).

But what are those respective roles? Para 16 of the draft Declaration states “The Court provides an authoritative interpretation of the Convention, and a safeguard for individuals whose rights and freedoms are not secured at the national level”. Should that not be “the” authoritative interpretation, or was the choice of the word “an” deliberate? As to the “safeguard” function, it is open to interpretation, but is this not suggestive of a more minimalist role for the Court than is currently the case?

After citing the “considerable [always?] margin of appreciation” that each State enjoys, para 17 then recounts that it falls to “democratically elected national parliaments” to decide how to implement the Convention and to domestic courts to apply the ECHR in reasoned judgments. Fine, although the draft Declaration states that, against that background, “the role of the Court is to [merely?] review decisions taken by national authorities to ensure that they are within the margin of appreciation”.

Are the messages being conveyed here not suggestive of a more general attempt to relegate the role and function of the Court to a sort of irrationality review in all contexts? Is this not an attempt to water down its substantive jurisdiction even in cases like those noted above? If this is not so, perhaps some extra paragraphs should be added to the draft Declaration confirming this.

Ed Bates, Senior Lecturer in Law, University of Southampton, is the author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.

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