Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

9 January 2014 by

OLYMPUS DIGITAL CAMERAThe glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

That has always been the case but more so in this, the era of the Human Rights Act. Yet, it is the great irony of the Act that, thirteen years after its entry into force in England and Wales, it appears to excite more, not less, controversy. This is understandable when one major political party has always opposed the Act and has pledged to repeal it.

What is perhaps more surprising is that so many senior judges have now the joined the debate as to the proper relationship between the UK courts and the Strasbourg Court.

This is surprising because the five principles that have defined the relationship between the UK courts and the Strasbourg Court have emerged from a positive judicial dialogue between the two jurisdictions. These five principles are:

(i)             By virtue of Article 32 of the European Convention on Human Rights, the Strasbourg Court’s jurisdiction extends to all matters concerning the interpretation and application of the Convention and the Protocols;

(ii)           The Strasbourg Court rarely disagrees with UK Supreme Court on the interpretation and application of the Convention.  When it does so, it is usually because it has agreed with the courts below;

(iii)          While, pursuant to section 2(1) of the Human Rights Act, the duty of the domestic courts is to “take account” of Strasbourg case-law, that case-law is not binding them in any strict sense of the word;

(iv)          Absent of some special circumstances, UK courts should follow any clear and constant jurisprudence of the Strasbourg Court;

(v)           Special circumstances for not following a decision of the Strasbourg Court would include the rare occasion where the domestic court has concerns as to whether a decision sufficiently appreciates or accommodates particular aspects of our domestic process.

From Strasbourg’s perspective these principles are wholly uncontroversial.

It is therefore a matter of concern that there are some who feel that these five principles – so carefully worked out through years of judicial dialogue – no longer work and must be discarded. When so many have written or spoken on this question (and three senior judges have done so in as many weeks), it would be impossible to do justice to every contribution to this debate. I will therefore confine myself to considering just three criticisms.

These criticisms are:

(i)             That there is nothing wrong with the Convention itself. The problem is that, in the hands of the Strasbourg Court and its principle that the Convention is a “living instrument”, the Convention has slipped its moorings and has developed into a subjective and anti-democratic instrument of judicial power.

(ii)           The Convention has come to exert an undue influence on our national legal system: its principles have sidelined or undermined the common law.

(iii)          For one or both of these reasons, the UK should now loosen its ties to the Strasbourg Court, either by removing the need to take account of its jurisprudence from the Act or by repealing the Act altogether.

For the first criticism, of the many myths that plague the Strasbourg Court one of the oldest must be that it invented the notion of a living instrument. The term first appeared in Tyrer v. the United Kingdom 1977, nineteen years after the United States Supreme Court had used equivalent language in Trop v. Dulles in 1958, and a full fifty years after the term had first appeared in American constitutional thought.  We can criticise the principle itself, but when it is now firmly established in the constitutional jurisprudence of virtually every common law country in the world, we must give up the idea that it is a self-aggrandising invention of the Strasbourg Court.

For the second criticism, if were true that human rights jurisprudence were a threat to common law, this would be a matter of utmost concern.  Happily, for someone proud to be both a human rights lawyer and a common lawyer, it is not.

But to be proud of the common law tradition does not mean we cannot recognise its occasional failings. It is an unfortunate feature of the common law that – whatever it has done to tame executive power and establish due process of law – there have been times when it has made mistakes and suffered blind spots. Memories of famous miscarriages of justice, of the days of unfettered executive discretion in matters of national security, of pernicious and abiding discrimination or, most recently, of the failure of the common law fully to protect privacy are all too fresh to believe that the common law can supply all the answers to protecting rights in this country.

However, be wrong to believe that acknowledging the weaknesses of the common law and recognising the strengths of the other European legal traditions that influence the Convention somehow sets up a collision between the common law and the Convention.

Influence of the common law

Indeed, it is seldom appreciated in this country just how influential the common law has been on the Convention system.  That influence did not end with Sir David Maxwell Fyfe; it has continued throughout the sixty-year history of the Court.

To pick just a few recent examples, the right of access to a lawyer at a police station (Salduz v. Turkey), the right to trial within a reasonable time (Pélissier and Sassi v. France) and the Article 3 prohibition on grossly disproportionate sentences (Vinter v. the United Kingdom) are all cases where the Court has clearly drawn on the common law tradition.

Even where the Court has disagreed with the UK courts, it has rarely done so without checking whether doing so would run counter to a fundamental principle of the common law. For instance, the Court’s willingness to accept some but not all of the Supreme Court’s criticisms of its approach to hearsay evidence in Al-Khawaja and Tahery v. the United Kingdom was based partly on the fact that the position in England and Wales was not entirely in step with that of other common law jurisdictions, including Scotland and Ireland (see paragraphs 63-87 and 136 of the judgment).

Similarly, when the Court found in Hanif and Khan v. the United Kingdom that the presence of a police officer on the jury which tried the applicants was a violation of Article 6, it only did so having found that virtually no other common law jurisdiction permitted police officers to serve on juries: see paragraph 144 of the judgment.

For these reasons, it would be misconceived and even counter-productive to amend the Act so that UK judges need not take account of Strasbourg jurisprudence

Broader danger

There is also a broader danger in conceiving of the UK court’s relationship with the Strasbourg Court in such exclusively bilateral terms.

The UK judiciary is not the only national judiciary required to take account of Strasbourg Court’s jurisprudence, nor it is the only one that can find this task difficult. Undoubtedly, part of the fault lies with the Strasbourg Court, its language and its occasional failure to give clear guidance to national courts. Yet, there are simply not the same calls from judges in those countries – many of who are as just highly-regarded and just as protective of their own legal traditions as our own judges – for such radical rethinking of their countries’ relationships with the Strasbourg Court.

This is where the broader dangers lie.

First, it is the very fact that British judges take account of Strasbourg jurisprudence that gives their rulings such influence in Strasbourg, both in UK cases and more generally.

Second, it is seldom appreciated in the UK quite how highly regarded the UK’s exemplary approach to the Convention is in other Contracting States. If the section 2(1) duty to take account were to be watered down so as to leave the UK courts entirely free to decide which Strasbourg judgments they would follow, it would send a troubling message, not to their counterparts in, say, Paris or Karlsruhe, but to those national judges who operate in a climate much less favourable to the rule of law than our own.

Finally, and more practically, if the section 2(1) duty were to be removed altogether but the Act were to remain in force, it would be wholly unclear how the UK courts could interpret and apply the Convention. Without fifty years of Strasbourg jurisprudence on matters such as proportionality, implied limitations and the extra-territorial application of the Convention, the Convention means very little. Removing the duty to take account would leave the UK courts free, should they choose to, to have no regard to any of these fundamental principles and even though there might be clear and constant Strasbourg case-law on the point before them – readily accessible over the internet – domestic courts may have to pretend that it did not exist. One must really question where such a position of studied exceptionalism would leave the good international reputation of the UK legal system.

One cannot pretend that the relationship between the UK courts and Strasbourg has always been a comfortable one, though it may be doubted whether something as important as the protection of fundamental rights should ever be a comfortable business. What is clear is that, whatever imperfections there may be in that relationship, it is one which protects and enhances the good international reputation of the UK and which allows its judges to play an active and leading role in the proper development of the Convention system.

That is a role which, as common lawyers par excellence, they should be proud to play.

Paul Harvey is a UK lawyer in the Registry of the European Court of Human Rights. He is currently on sabbatical from the Court at Doughty Street Chambers. Comments more than welcome via paulgharvey@gmail.com or below

Sign up to free human rights update s by email, Facebook, Twitter or RSS

Related posts:

2 comments


  1. John Dowdle says:

    Is there not a mechanism within Europe to adopt European statute law, in the same way as happens in the UK, where laws passed by the Monarch-in-Parliament have ascendancy over all aspects of common law? This process would provide democratic legitimacy for European law.
    European judges may be unelected – as they are here in the UK – but MEPs are not.

  2. Tim says:

    Can I take this opportunity to make it clear that when the hate pamphlets, the Express, The Daily Mail, the Telegraph and the Sun talk about ‘the hated European Human Rights laws’, they are barking for themselves. not speaking for me?

    You can bet that all the people working for these hate pamphlets would soon start squealing about their human rights if I were allowed to stretch them on the rack.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: