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

The 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.

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.

• Keep calm and apply the European Convention on Human Rights – Paul Harvey 
• More on admissibility, the view from the Court – Paul Harvey and Pamela McCormick
• Is Strasbourg obsessively interventionist? A view from the Court – Paul Harvey