Law, politics, and the draft Brighton Declaration – Dr Mark Elliott

9 March 2012 by Guest Contributor

The European Convention (via CoE)

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

Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.

At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.

Meanwhile, on the vertical plane, the HRA creates a site of interaction between national law and politics, on the one hand, and international law, in the form of the European Convention on Human Rights (ECHR), on the other. In this way, the Act brings into focus the tension between the binding nature of the Convention rights in international law and the legal freedom of the UK Parliament to override those rights as a matter of national law.

It is in the interaction of its horizontal and vertical bridging effects that the potency of the HRA lies: the political pressure exerted by a legal judgment that yields a declaration of incompatibility is attributable in part to the fact that, for all that such a declaration is non-binding in terms of national law, it identifies a breach by the UK of norms that are binding upon it in international law. This helps to explain why, for instance, declarations of incompatibility routinely result in remedial legislative action.

The HRA thus enables norms that are binding in international law to penetrate the domestic sphere, thereby eroding the distinction between the legal and political realms erected by the orthodox notion of legislative supremacy. But it follows that the potency of the HRA model is conditional upon the Convention rights possessing real bite – a condition that is satisfied through the capacity of the ECtHR, as ultimate and authoritative adjudicator upon the meaning of the ECHR, to imbue the Convention rights with a legal crispness and practical force that international human rights norms do not inevitably possess. Yet three interlocking features of the draft Brighton Declaration would, if implemented, reduce the Court’s ability to discharge such a role.

The draft Brighton Declaration

First, the draft Declaration refers to and emphasizes the notion of “subsidiary”, states’ “considerable” margin of appreciation, and the ECtHR’s secondary role of determining whether that margin has been exceeded. It therefore appears that cases that got as far as the Court would, under the Declaration, be less likely to result in a judgment adverse to the state party. In that sense, the Convention rights would be rendered less concrete, or less demanding.

Second, the Court would be enabled to deliver “advisory opinions”: “point[s] of interpretation” could be referred to it by national courts, the former’s role being to “give its opinion on the point of interpretation” while “leaving it to the national court to apply this to the facts of the case”. But such opinions would “not be binding”, and would be somewhat abstract: they would yield no concrete pronouncement about the compatibility of the relevant national law. And although the advisory opinion regime would not replace the right of individual petition, that right would not be exercisable by the individual concerned where the opinion had been “applied” by the national court.

Third, fewer cases would reach the court at all. Article 35 ECHR would be amended “to make clear that”, absent exceptional circumstances, 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”. Exceptional circumstances would be those in which a national court had “clearly erred”, and those in which the case raised “a serious question”, concerning the interpretation or application of the Convention rights.

Possible implications for the UK

What would be the implications of these changes for domestic protection of human rights via the HRA? For one thing, the force of a declaration of incompatibility would probably be less than at present. If the declaration were issued in the wake of an ECtHR advisory opinion, it might be open to the Government to contend that that Court would not have concluded (had the matter reached it otherwise than via the advisory route) that domestic law or practice was not actually incompatible.

Moreover, the individual concerned would presumably be unable decisively to challenge that view because once the Strasbourg Court had issued an advisory opinion that had been applied in domestic legal proceedings, the Court’s door would be closed. Even if the proposed advisory jurisdiction were not in play, a declaration of incompatibility’s potency would potentially be diminished by the proposed revisions to the admissibility criteria: since the matter would already have been examined by a national court, an application to the ECtHR would, absent exceptional circumstances, be inadmissible. And underpinning all of this would be the renewed emphasis on the ECtHR’s subsidiary role and the “considerable” width of the margin of appreciation.

Taken together, these changes would result in Convention rights taking on a less obviously prescriptive character. Lighter-touch review by a harder-to-access Court some of whose judgments would become non-binding would render the content of the rights more contestable: the Convention regime’s capacity to imbue the HRA with real legal bite would be reduced, and it would be correspondingly easier for Government to argue that the ECtHR might not see things in the same way as the domestic court, while enjoying the luxury of a procedural regime that reduced the likelihood of the ECtHR actually pronouncing upon the concrete issue.

The Declaration, if implemented, would also supply greater scope for “reform” (by which its proponents often mean “dilution”) of the HRA, whether via its replacement with a “UK Bill of Rights” or otherwise. As I have argued (here and, with others, here), such scope is presently limited by the fact the Convention rights constitute a legal bottom line that no amount of reform on the domestic level can shift. However, the Brighton proposals, while not moving that bottom line as such, would make it a less practically rigid one.

As an interface between the domestic and ECHR legal systems, the HRA’s potency turns, to a large extent, on the nature of the Convention regime. And as a bridge between the realms of (human rights) law and (legislative) politics, the HRA’s capacity to facilitate the disruption of the latter by the former depends, in large part, upon the obligatory character of the transnational regime for which the Act serves as a conduit.

While the proposed reforms would have implications across Europe, they might have particular significance in the UK, where the Convention serves as the closest approximation there is to a constitutional bill of rights. Against that background, the Brighton process deserves the sort of scrutiny that would – in any country with a “normal” constitution – accompany a proposal to amend the constitution itself.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge. A longer version of this post can be found on the UK Constitutional Law Group Blog.

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