Is Strasbourg law the law of England and Wales?

30 March 2017 by David Hart KC

R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin)  24 March 2017, Kerr J – read judgment 

This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.

The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?

The key costs provisions, now in s.32 of LASPOA 2012, said that civil legal services do not include services relating to any law other than the law of England and Wales, except where such law is relevant for determining an issue relating to the law of England and Wales.

The solicitors argued that there were two ways in which they could be paid. (1) Work on a Strasbourg application did relate to domestic law, and (2) even if it did not, it was on a law that was relevant to determining a domestic law issue.

(1) Strasbourg law is English law

They argued that the Convention rights relied upon by their clients had been incorporated into domestic law by the HRA; those rights are “directly enforceable in this country as part of its domestic law” – see Wilson or Keyu for such statements. Just as the European Communities Act 1972 had acted as a conduit pipe for the introduction of EU law (as per Miller, the Brexit case, so the HRA did so for ECHR law.

But the Lord Chancellor had rather bigger guns up her sleeve, such as Lord Clyde in Lambert at [135]

in approaching the problem of the retrospectivity of the 1998 Act it is to be remembered…that the Act did not incorporate the rights set out in the Convention into the domestic laws of the United Kingdom

or Lord Hoffmann – incorporation is a “misleading metaphor”; international treaties are not self-executing in our domestic law

what the law has done is to create domestic rights expressed in the same terms as those contained in the Convention. But these are domestic rights not international rights.  Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state Re McKerr at [63]

Hence the ECtHR applies the law of the Convention, not that of England and Wales. The two legal systems are separate. Domestic courts must apply incompatible laws, if they cannot be “read down” into compliance.

The EU conduit pipe metaphor  is inapplicable. There is nothing actually coming down the pipe from ECtHR. The HRA simply replicated the language of certain articles within the Convention.

The judge, Kerr J, agreed with the Lord Chancellor’s contentions. The use of the word “incorporate”

does not provide a foundation for any suggestion that the HRA directly gives the force of law in England and Wales to the autonomous law of the European Convention, nor that the HRA has altered the principle that treaties are not self-executing under our domestic law.

Even though UK Courts must take Strasbourg cases into account, they are not bound to follow them; conversely, they may be bound not to follow them because of domestic binding precedent. Hence, and from time to time, the law in our courts differs from that applied in Strasbourg.

So Strasbourg law is not English law.

(2) Strasbourg law is relevant to determining any issue relating to the law of England and Wales

The solicitors relied on the continuing relevance of Strasbourg law to domestic law disputes about the meaning of rights derived from the Convention, and cited various housing cases in which Strasbourg decisions repeatedly led to later courts departing from House of Lords decisions.

The Lord Chancellor’s first argument was simple, and focussed on the use of the word “is” in “is relevant”. By the time that the solicitors started working on the Strasbourg applications, there were no English proceedings on foot, as they had been dismissed. This is not surprising because you cannot go to Strasbourg without exhausting local remedies – see the post here for what this means. So the applications to Strasbourg could not be relevant to anything currently in a domestic court.

The judge was not initially inclined to accept this argument. Domestic human rights law is inspired, shaped and influenced by the decisions of the Strasbourg Court. So the latter has to be relevant to domestic law. Left to his own devices, he would have been sympathetic to the solicitors’ arguments.

But he was persuaded that the provision was potentially ambiguous and therefore recourse to Hansard was acceptable. When the predecessor to LASPO (Access to Justice Bill 1999) was in the House of Lords, one saw where this exception to the ban on foreign law came from.

Relatively commonly, the English Courts have to decide issues of foreign law as part of deciding the cases before them, particularly when the events in question (the road accident, the environmentally damaging activity) occurred abroad. In such cases, the courts treat foreign law as an issue of fact to be pleaded and proved, by the calling of experts – I myself gave evidence on issues of UK environmental law on deposition for a US Court.

So, in response to a Law Lord pointing out that the 1999 Bill would not appear to allow this, the then Lord Chancellor asserted that the bill was quite obviously not intended to exclude foreign law relevant to an existing UK case, but undertook to move an amendment designed to make this clear. Hence, the exception now found in LASPO.

This was one of those relatively rare cases where the Parliamentary history did make the genesis of a provision crystal clear.  The Strasbourg law had to be relevant to a case  currently before the English courts – which of course it was not in these cases, where the claims had been finally dismissed by the English courts.

Conclusion

A neat explanation from the judge as to why we must be wary of the metaphor of incorporation when talking about the HRA and the ECHR. Incorporation could have been carried very easily, by a provision stating that the Convention shall have force of law in the UK. It did not say that, because a more nuanced scheme was arrived at, designed to retain parliamentary sovereignty, whilst strongly steering law towards Convention compliance.

So the solicitors did not get their money.

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