%20(2).png)
The prickly debate about the relationship between the UK and the European Convention on Human Rights (Convention) and European Court of Human Rights (ECtHR) has prompted me to write this blog post, to try to combat some of the negative perceptions surrounding the issue, and to try to inspire some faith in the Convention system. This issue is especially important as it goes to the heart of the current debate about whether the Human Rights Act 1998 (HRA 1998) should be replaced with a British Bill of Rights, as the Tories are proposing. As things stand, the HRA 1998 incorporates the rights enshrined in the Convention into UK law and makes remedies for breaches of human rights available in UK courts.
Some people wish to break the formal link between the British Courts and the Strasbourg Court and to end the ability of the ECtHR to force the UK to change the law. It has been proposed that a judgment of the Strasbourg Court would only be binding in UK law if Parliament agrees to it. As Robert Spano (a judge of the ECtHR) has pointed out, this ‘reform’ would simply maintain the status quo. As things stand, laws cannot be changed in the UK without Parliamentary action. This basic guide explains how laws are made in the UK. A prime example of the ECtHR trying and failing to influence law in the UK is the issue of prisoners’ voting rights. David Cameron has insisted that, “if Parliament decides that prisoners should not get the vote then I think they damn well shouldn’t. It should be a national decision taken in our Parliament.” This is regardless of the fact that the ECtHR ruled in Hirst v UK (No 2), back in 2005 (!), that a blanket ban on British prisoners exercising the right to vote is contrary to the ECHR. So much for the ECtHR forcing the UK to change law and removing parliamentary sovereignty!
Many people have wrongly used the Lord Chief Justice Hoffmann’s speech on ‘The Universality of Human Rights’ to support the argument that we need to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in Alsace, France”. But as Adam Wagner has pointed out, the Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times and his Lordship was not actually advocating any changes.
The drafters of the Convention deliberately chose to formulate its provisions flexibly, thus allowing a room for manoeuvre (often termed a ‘margin of appreciation’) when looking into the details of specific cases. This ‘level of deference’ afforded to the state in discharging its duties under the Convention was first applied as early as 1976 in the Handyside case. Spano argues that the margin of appreciation is the functional manifestation of the principle of subsidiarity. This principle is the realisation of the subsidiary (subordinate, if you like) character of the Convention system. Dean Spielmann (President of the ECtHR) has said that, far from exporting European values to Britain, the ECtHR has helped import British values to Europe. This reminds us how politically dangerous it could be if the UK disassociates itself from the Convention system, since many other countries view the UK as setting a good example.
Essentially, it is not the role of a ECtHR judge to second-guess the reasoned assessment of a national judge on the outcome of a case. The SAS v France case is a perfect example of the margin of appreciation doctrine being applied in line with a more robust concept of subsidiarity inspired by the Brighton Declaration of 2012. In this 2014 judgment, the ECtHR decided that the French ban on face covering did not violate the right to privacy (Article 8 ECHR) or freedom of religion (Article 9 ECHR), deciding instead to award France a wide margin of appreciation, and respect their claim that the ban was necessary for “living together” harmoniously.
There are three elements to the reform process suggested by the Brighton Declaration, as identified by Spano:
Enhancing the quality of the ECtHR’s work;
Issues relating to consistency in the case-law;
Output and caseload.
In terms of the quality of the ECtHR’s case-law, changes have been made over recent years, making the process of the election of judges to the Court more robust. Spano points out that the claim that Strasbourg judges are unelected is wrong; they are actually elected by a cross-section of European Parliamentarians sitting in the Council of Europe, including some UK MPs. 47 judges decide thousands of cases across five different Sections, so processes are being designed and implemented to fix consistency issues. The ECtHR is now open to the possibility of the EU’s accession to the ECHR, which would fill the anomaly of conflicting human rights protections currently being provided within the 28 Member State EU, on the one hand, and the larger 47 Member State Council of Europe on the other. In terms of caseload, the ECtHR has made huge progress since Protocol 14 came into force in 2010. Admittedly there are still problems, but it will take time and patience to see a more dramatic reduction in cases. These changes, though, do illustrate Strasbourg reforming to accommodate concerns about its democratic legitimacy, but they still don’t appear to satisfy the Conservative Government.
As Philippe Sands points out, the price paid by the UK for the ECHR system has not been a great one: “Our common law has retained its essential vibrancy and values, the essence of which is exported through the convention and its interpretation by our courts. There has been no avalanche of cases, no transformation of a cherished approach, no implosion of essential parliamentary sovereignty, no dictatorship of the judges."