Is the European Convention Working? Grieve advocates before Faculty of Advocates

crop-dominic-grieve_39562a1Less than 48 hours before First Minister Nicola Sturgeon’s speech in Glasgow (see our coverage here), another rousing defence of the Convention was launched in Scotland. Former Attorney General Dominic Grieve addressed the Faculty of Advocates in Edinburgh on the 21st September, posing the question “Is the European Convention Working?”, and in reply giving an outstanding analysis of the reasons why the UK must remain within the Convention (full transcript available here).

In the interest of brevity, this post shall skim over the more “standard” defences of the Convention – highlighting the various historical “success stories”, the more serious situations in other states in comparison to the UK, the effective existing dialogue between domestic courts and Strasbourg, problems of EU membership and devolution agreements (of which we have previously discussed here) – and instead focus on the more interesting arguments he makes: namely, the important interactions between the international reputation of the UK and the authority of the Court.

The “Problem”

Grieve begins by outlining the current hostility towards the Human Rights Act and the Convention at large. While the Conservative Party agree that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation”, it is the practical application by both the Court and through “the domestic legislation passed by Labour (that is to say the HRA)” that has “damaged the credibility of rights at home”. Replacing the Human Rights Act with a new Bill of Rights would help halt the “mission creep” of Strasbourg, providing particular clarification of how Article 3 and 8 should be applied in deportation cases. The Bill of Rights will provide a “threshold set by Parliament below which Convention rights will not be engaged”, and remove the reach of the Convention over British armed forces (on this last point, see last week’s consideration of Convention application in the case of drone strikes in Syria).

The Conservatives further wish to “break the link” so that British courts no longer need to take Strasbourg rulings into account, and negotiate a new status for the UK where Strasbourg judgments are rendered only advisory. If these negotiations fail, the UK would leave the Convention entirely.

Grieve’s defence

Grieve begins by summarising the history of the Convention – its creation in the post-war period, seeking to give European enforcement to the rights recently enshrined in the UN Universal Declaration of Human Rights and Freedoms to prevent a repeat of the horrors recently inflicted on the continent. Early successes in cases like Marckx v Belgium (ending state discrimination against children on the grounds of their illegitimacy) and Ireland v UK (finding British interrogation techniques constituted inhuman/degrading treatment) demonstrate not only the early importance of the Court but also that, although controversial at the time, “the human rights norms which they express are now ones we largely take for granted”. The Court’s “living instrument” doctrine, says Grieve, is little different from the style of judicial interpretation “rooted in our common law tradition”.

The expansion of Council of Europe membership has forced the Court to

grapple with its consequential transformation from an international tribunal dealing with…countries in which the rule of law has become well established, into a court of final resort for some 800 million people, many of them living in states where the principles underpinning the rule of law are often misunderstood, misapplied or ignored.

Yet, Grieve continues, this has given the Convention “the greatest importance in helping promote the rule of law in environments where it has never previously existed”, allowing for defence and reform in Russia, Georgia, and Turkey, to name only a few.

The Court has been criticised for failing to sufficiently take into account the national differences of member states and, as a result “it has sometimes micro managed the Convention too much”. Prisoner voting is one such example

The issue is one on which a strong policy case can be made for extending the vote to some prisoners. But an equally coherent case can be made for depriving them of it, as the Court has acknowledged. The issue is largely symbolic. But symbols matter in the context of parliamentary democracy and the judgement was in my opinion an unnecessary interference with a policy that enjoys overwhelming parliamentary support in the UK.

But here Grieve is steadfasly pragmatic

…as a lawyer, I have to admit that this is not the first time I have disagreed with a court decision in which I have appeared. What is far more striking to me is, prisoner voting apart, the paucity of concrete examples that are identifiable in the Government’s list of complaints against the way the Strasbourg Court is interpreting the Convention and the incoherence of its suggested solutions.

He continues by addressing the specific criticisms made by the Government in relation to the use of Articles 8 and 3 in deportation cases. While Grieve has “no difficulty agreeing that Article 8 is invoked irritatingly often to justify foreign criminals escaping deportation at the end of their sentences”, this has “little to do with the Convention and a lot more to do with our domestic courts and the failure of the UK Borders Act 2007 to address this issue as intended”. The problem was solved by Parliament passing the Immigration Act 2014, which makes clear the public interest grounds where deportation will be required over the Article 8 interests of the individual. Thus “it is difficult to see how any proposed changes to gloss the Convention text itself will make any difference, unless the intention is to create total incompatibility with its principles”.

Similar criticism is directed at the Government’s Article 3 proposals, incoherent in terms of the UK’s other international obligations

The Conservative Party paper described it as an “inalienable right”, but then suggests that this right should be qualified to alter the “real risk” test and replace it with another that would somehow make removal from the UK easier but still be in line with “our commitment to prevent torture and in keeping with the approach taken by other developed nations”. As, at present 47 of those developed nations accept or at least are supposed to accept the current interpretation of Article 3 by the Strasbourg Court, it is hard to see where this is going. Even the USA, which does not, is bound by the terms of UN Convention against Torture, which is one of the reasons it cannot return some Guantanamo detainees to their home countries. So either the proposed change will in fact be of almost no effect, or, if significant, undermine a key principle, not just of the Convention but of one of our other international obligations.

Grieve finally turns to the extraterritorial application of the Convention in the field of active military service. While “development of Strasbourg jurisprudence in this area has been criticised by lawyers for the International Red Cross as creating unhelpful complexity”, proposed limitation of territorial application of the Convention in the Bill of Rights will not resolve any problems as the Court has been clear in its international application. So has the Court got it wrong in extending application at an international level? Grieve disagrees

…the consequences for the citizens of other states if this change were ever to extend to all signatory states to the Convention…would mean that the many victims of serious human rights violations, occurring outside the territory of the member state complained of would be left without redress. This would include, from past examples, civilians who lost homes and property during the Nagorno-Karabagh conflict, Greek Cypriots suffering loss from the Turkish occupation of the north of Cyprus and migrants who were intercepted at sea and returned to Libya by Italy where they faced ill treatment.

This ties into Grieve’s wider argument. Treating Strasbourg judgements as advisory fails to consider how

…our supportive participation delivers in respect of our foreign policy goals. Precisely because the Convention is dependent on peer group pressure for its observance, we will offer an example and an invitation for it to be ignored by others. It is already the case that countries such as Russia and the Ukraine have used the UK position to procrastinate on implementing judgments. Others will do the same and the Convention will be further challenged and undermined.

The fallout will not be limited to the Council of Europe. The UK position was used by Venezuela in justifying ignoring obligations under the American Convention on Human Rights arising prior to its denunciation in 2013, and the President of Kenya cited it when the UK and others were pressing for cooperation with the ICC, of which Kenya accepts jurisdiction. Were the Convention as a whole to lose authority, we would also lose its beneficial impact as a “benchmark for citation in courts in places such as India and South Africa”.

Continued international commitment to human rights by the UK would be impossible and, most interestingly, Grieve finds proof of this argument in “that classic bugbear of the tabloid Press Abu Qatada”

By accepting the judgment of the Strasbourg Court, the Government was still able to deport him, even if it delayed the process. But most importantly it helped ensure reforms to the Jordanian criminal justice system which were not only much needed but overwhelmingly welcomed.

Grieve states that “the Government seems to either underestimate or ignore how well placed we are to influence its development”. During the UK’s presidency of the Council of Europe in 2012, Grieve worked with Ken Clarke as Lord Chancellor to achieve reform among the 47 signatory states, resulting in the Brighton Declaration “which sought to address the backlog of cases, the quality of judicial appointments and got the principles of subsidiarity and the margin of appreciation into the preamble to the Convention, so as to guide the Court towards avoiding the type of decision we saw in Hirst”. Grieve believes more would have been achieved “if our fellow signatory governments, who shared our analysis and our goals, had not been deterred by their domestic NGOs from full cooperation with our agenda because of a fear that we wished to diminish and not improve the Court’s effectiveness”. Moreover, restriction of the Convention’s domestic application through the Bill of Rights would ignore “the important shift by our own national courts away from…defining the requirement of “take account of” as being the close mirroring of Strasbourg decisions, [initiating] a dialogue that has led in a number of cases to the Strasbourg Court showing deference to our own”. “In pressing for a wholesale reform of our relationship with the Convention and the Court”, Grieve says, “the government is in danger of fighting yesterday’s battle”.

Commentary

Grieve does a remarkable job of deconstructing the Government’s arguments for renegotiating its relationship with the Convention, not only showing the incoherency of its suggestions, but also highlighting the international aspect so often forgotten in these debates. Governments may be unhappy with certain decisions but this is, in a way, the very purpose of the Convention. Previously controversial decisions are now upheld as successes. Considering the sensitive political issues inherent in its jurisdiction, differences views are bound to exist on what the Court should or shouldn’t do. As Grieve notes near the beginning of his speech, the principle advocate of the introduction of the right of individual petition was Terence Higgins, “a right of centre Conservative MP who supported it as he feared the curbs on freedom which a socialist government might introduce”. This seems like a far cry from the terrorist-loving liberal Court we see demonised today.

But more importantly it is refreshing to see a more nuanced understanding of both defence and criticism of the Court. When plans to repeal the Human Rights Act were first announced there was a (necessary) focus on rather simplistic arguments from those of us defending the Convention – “which of these rights could you stand to live without?”. While this was successful in creating the necessary support to at least delay the Government’s plans, it threatened to oversimplify discussions surrounding the Court, disconnecting it from any constructive criticism. The Court is overworked, underfunded, and struggling to balance the interests and legal systems of a very broad European continent while maintaining its legitimacy. The Court makes controversial decisions and, sometimes, these decisions may be wrong. But this does not mean the Convention is broken. Grieve does an excellent job of making clear that one can criticise the Court’s judgments and advocate for its continued existence.

Earlier this week Lord Sumption criticised the Convention as overthrowing the entrenched legal system of a country that has “never been invaded or had a revolution since the middle of the 17th century…[with] a system of government and a legal system that has very gradually evolved and has unique features shared by no other country…the only country in Europe apart from Spain…not overrun by the Nazis and…the only one among the European countries that was among the victors at the end”, creating a “pride in [our] own separateness”. Maybe it’s that continuity, that avoidance of despotism that gives the UK its privileged position to be able to reject such rights. The UK does not act within a vacuum. Leaving the Convention would not only be a problem for the UK – it would be a problem for the 800 million citizens who desperately need an enforceable European Convention on Human Rights.

Grieve does not reject the need for reform. But Conservative plans get the balance wrong. As he concludes

We need to repeatedly ask how any proposal that is put forward will in practice deliver benefits which outweigh the obvious costs to our influence, reputation and national interest, in reducing Convention rights domestically and thus violating the terms of our adherence to it, with all the consequences that flow from it. When the froth of political polemic is removed there can only be one answer to this question.

It’s merely a shame that Mr Grieve is no longer voicing such arguments inside Whitehall.