Lord Judge or Lord Phillips. Who is right on whether the UK can “ignore” the European Convention on Human Rights?
Well, let’s get the terms of reference right for a start. The Lord Chief Justice, Lord Judge did not actually tell the Lords Constitution Committee that “Britain can ignore Europe on human rights” as the Times had it. And some of what was said in the hearing into judicial appointments (reported here) has been carelessly misreported and reported out of context.
What Lord Judge was trying to suggest is that UK courts, particularly the Supreme Court, do not have the fearsome constitutional powers ascribed to them by the likes of Lord Neuberger (explained here) – powers that would need to be curbed by politicians having a say in Supreme Court appointments. It is not a Supreme Court in the American sense with the constitutional right to strike down legislation – at least, not because of the Human Rights Act.
During the hearing he said: “The introduction of the European dimension and the introduction of judicial review of government action in particular hasn’t altered the basic principle which is that we [judges] try to discover the law and having discovered it, say what it is”. But he made clear that, in the case of the ECHR “the final veto remains with Parliament” – in contrast to European Union law. “EU law must win,” he said, the reason being that the principle of European Union supremacy is enshrined in UK law, the European Communities Act 1972, Section 2:
“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”
So any European Union law arising out of EU treaties is directly applicable in Britain and will be upheld in British courts. This involves accepting the “acquis communautaire” – the years of case law from the Court of Justice in Luxembourg. It is a requirement of accession that the “acquis” be accepted by new member states.
‘I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so’ Lord Judge
The position regarding the ECHR and the judgments handed down from the European Court of Human Rights in Strasbourg is rather different and somewhat subtler. Lord Judge told the Constitution Committee:
“I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so. The legislation is absolutely unequivocal that decisions in the European Court of Justice [of the EU] are binding on this country.” He added: “I think for Strasbourg there is yet a debate to happen – it will have to happen in the Supreme Court – about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act when it said that the courts of this country must ‘take account’ of the decisions of the European Court of Human Rights.
“I myself think it’s at least arguable that, having taken account of the decision of the court in Strasbourg, our courts are not bound by them. We have to give them due weight, and in most cases obviously we would follow them, but not, I think, necessarily.”
This is a rather loose way of saying that, contrary to popular misconception, the Human Rights Act 1998 did not “incorporate” ECHR law into British law. What it did do was say that UK law should be “convention-compliant” (and a minister must sign off all new legislation as such); that where possible, UK judges should interpret new and old law to be convention-compliant; and hence individuals would be able to access their rights under the European Convention in British courts rather than heading expensively to Strasbourg.
Section 2 of the Act says: “(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights … [etc]
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”
This, as Lord Judge pointed out at the Constitution Committee, applies to judges “down the judicial chain”. It is not just for big challenges in the big courts. Note also the words Judge picks out as controversial: “take into account”. Britain is not required to produce legislation that is an exact replica of some idealised European legislation held in Strasbourg. Britain produces its own legislation on whatever multifarious issues it thinks fit. Parliament remains supreme, though that legislation should be convention-compliant. That is what judges must “take account of”.
‘The Human Rights Act is designed to ensure that effect is given to that part of the rule of law which says we ought to comply with our conventions’ Lord Phillips
And if they find it is not compliant? Judges, whether in Strasbourg or Britain, cannot strike down primary legislation duly passed by Parliament (secondary delegated legislation is a different matter). What they can do, if they cannot interpret the legislation in a convention-compliant way, is set out in the Act, Section 4:
“(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.”
Whether that counts as Strasbourg “winning” is a moot point. What Lord Phillips, the president of the Supreme Court, said was: “In the end, Strasbourg is going to win so long as we have the Human Rights Act, and the Human Rights Act is designed to ensure that effect is given to that part of the rule of law which says we ought to comply with our conventions.”
He said “comply with our conventions” not, as reported in the press “comply with the convention”. He was making the point that there is a general rule of law, accepted internationally and by UK judges, that says if we sign a treaty convention we must be bound by it. The HRA backs up that long-established rule of law in the case of this particular convention.
Certainly the Government would be wise to take the judgment and declaration of incompatibility into account and look again at the Act that has been challenged. Take the vexed issue of prisoners’ votes. The finding against the Government does not mean it must immediately give all prisoners all their votes in all the elections that otherwise they would have missed. It does mean that the Government should come up with a reasonable scheme to ensure, broadly speaking, prisoners are not excluded from democratic rights. (A sensible idea might be that they be registered to vote on their release; or that those on short sentences be allowed to cast postal votes in elections where they will have an interest on release.)
The Government would be wise to produce something convention-compliant in this and other matters not least because if they don’t they are offering open goals for more and more litigants taking such matters all the way to Strasbourg. The consequence of that is not that Strasbourg will strike down legislation with a clean blow, but that it will fine the Government. Again and again. They aren’t generally large fines but the costs are, so the Government would not wish to put itself in the position of having to fight multiple doomed cases.
So Britain cannot ignore Strasbourg, and doubtless Lord Judge did not mean to say it could (‘ignore’ does not mean the same as ‘take account of’, after all). But judges are interpreting UK legislation, not Strasbourg legislation. They will interpret it according to UK conditions – the conditions of one of the world’s great parliamentary democracies, wholly signed up to the principles of human rights – principles that Britain largely drafted on behalf of the Council of Europe in 1950.
A piece on the even more vexed issue of “horizontality” – how far UK judges can extend human rights to issues between individuals and organisations as opposed to the government, is here: Privacy, human rights, horizontality and the issue of judicial underwear
Note: This is how Shami Chakrabarti, director of the civil rights group Liberty, summed up Lord Judge’s view: The requirement to take account of Strasbourg without being bound by it “creates a dialogue between the domestic and international judiciary, allows the Supreme Court to disagree with Strasbourg and thus to influence human rights thinking across the Council of Europe”. In other words the UK tail can sometimes wag the Strasbourg dog.
Lord Irvine has given a lecture (Dec 2011) covering some of these issues, particularly what is meant by “shall take account” of ECtHR judgments: here
Adam Wagner’s view on the UK Human Rights blog is here