European Convention on Human Rights: current challenges

Speech by Dominic Grieve QC MP

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The Rt Hon Dominic Grieve KC

“I am delighted to have been invited this evening to talk about human rights in front of such a learned audience.

“Just under 2 years ago I gave a talk in my own Inn, the Middle Temple, on the then Conservative Opposition’s views on the operation of the ECHR and our plans for reform of the Human Rights Act. Since then much has happened. We have a Coalition government that both of necessity but also through shared values seeks to express a collective viewpoint on human rights.

“And you would have to be living on a desert island not to know that human rights remain in the news. It seems that every week sees a new judgment from the Supreme Court or a decision of the European Court of Human Rights in Strasbourg.

“There are calls to scrap the Convention and there is a constant debate about the repeal of the Human Rights Act. There is also a great deal of polemic on how the Convention works in practice to affect our lives-a subject that appears to often generate rather more heat than light.

“But there is also in addition an overwhelming reason why this is an extremely propitious time to talk about the challenges facing the European Convention on Human Rights.

“Two weeks today on 7 November the United Kingdom takes over the Chairmanship of the Committee of Ministers, the governing body of the Council of Europe which is, of course, the international organisation through which the Convention was adopted. And in March the government established a Commission to investigate the creation of a UK Bill of Rights.

“The UK Chairmanship is a once in a generation opportunity to drive forward reform of the European Court of Human Rights. The Commission on a UK Bill of Rights also provides us with the first proper opportunity since the passage of the Human Rights Act to consider how we should best enshrine the Convention rights in UK law. These are the two main challenges I intend to talk about this evening.

“But first I would like to set the context of what the government is seeking to achieve in these two areas.

“For the polemical debate, important and entertaining as it is, does not change what we in government are trying to deliver. In particular, we need to be absolutely clear about one fundemental matter: there is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention. This is not just the view of the Coalition Government. It is also the shared view of both parties who comprise that coalition.

“The benefits of remaining within the Convention and retaining our position as a leader of the international community are seen by the government to be fundamental to our national interest. The Convention is an integral part of the post-war settlement and has played an important and successful role in preventing the re-emergence of totalitarianism in Western Europe. And it continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens. It is easy to forget how beneficial it has been across Europe.

“For example, the Convention has already resulted in widespread changes all across Europe - for example, the decriminalisation of homosexuality, the recognition of the freedom of religion in former Soviet countries, the prevention of ill-treatment by the police and the removal of military judges from civilian courts. This is important work and must continue.

“The British involvement in the creation of the Convention, though well known, is worth repeating. Although the creation of the Convention was not without debate it is suffused with both common sense and principles of common humanity. Much of substance of the Convention reflects the rights and freedoms hard won in this country over the centuries.

“The prohibition of torture, right to liberty and right to a fair trial in the Convention all reflect the development of British common and statute law from Magna Carta, habeas corpus to the Bill of Rights. British politicians from Winston Churchill to David Maxwell Fyfe were instrumental in the development of the Convention. I am proud of that legacy and this Government will ensure that the UK continues to take the lead in its ongoing evolution.

“As the Prime Minister made clear in his speech in response to the riots we are proud to stand up for human rights, at home and abroad. It is only by setting an example at home that the UK is able to exert influence in the international arena and retain the moral authority to intervene and to enforce international law as we did successfully to protect the civilian population in Libya and to allow Libyans to pursue their aspirations for a more open and democratic government.

“It is inconceivable that the United Kingdom could speak with any authority in the world about the need for the rights and freedoms that we hold dear and expect to be listened to if we withdrew from the Convention.

“We also need to be clear about what abolishing the Human Rights Act means. The Human Rights Act is not synonymous with the Convention. Nor is it some sacred tablet of stone. It is simply the means by which - in our dualist system of law - the United Kingdom has chosen to incorporate the Convention in domestic law.

“The government has asked the Commission to investigate the case for replacing the Act with a UK Bill of Rights which will ensure that the Convention rights continue to be enshrined in UK law. The government is not intending to limit or erode the application any of the rights and freedoms in the Convention including the right to respect for private and family life. The Home Secretary has rightly pointed out for example that Article 8 of the Convention that protects the right to a private and family life is not an absolute right but may be moderated in the public interest.

“This is the classic balancing exercise inherent in many of the Articles of the Convention. We think that the domestic courts have placed too much weight on the family rights of foreign criminals and we intend to redress the balance in the Immigration Rules by ensuring that they more fully reflect the compelling public interest in the maintenance of an effective immigration control in respect of those who have committed criminal offences.

“We take the view that Parliament, before whom these changes to the Immigration Rules will be laid, is best placed to decide on difficult policy questions such as where the balance should be struck in relation to the deportation of foreign criminals. But it is important to note that in changing the rules we will respect the jurisprudence of the Strasbourg court and reflect the margin of appreciation that the Court has afforded to Member States in coming to such decisions.”

Court reform

“Now let me turn to the reform of the European Court of Human Rights.

“The UK is a supporter of the Court and believes it is an essential part of the system for protecting human rights across Europe. However, it is clear that the Court is not working properly. It has a backlog of over 160,000 cases (it goes up each time I speak on the subject, last time it was 140,000 and the time before that 120,000). This is not sustainable and undermines the ability of the Court to deal with important allegations of serious violation of the Convention.

“The United Kingdom is not alone in thinking so. There is unanimous agreement across all the 47 member states that reform is needed. That process is already underway and we will build on the reforms adopted by the Council of Europe at the Interlaken and Izmir Conferences in the past 2 years during our Chairmanship of the Committee of Ministers. We will provide fresh impetus to find better ways for the Court to focus quickly, efficiently and transparently on the most important cases that require its attention.

“We have also sought interim advice from the Commission on a UK Bill of Rights. They have made a number of recommendations. The Court should establish a screening mechanism that ensures that it only deals with cases which raise a serious violation of the Convention.

“We must reconsider the relief that the Court is able to offer by way of just satisfaction so as to ensure the Court is not bogged down in the calculation of often very small sums by way of damages. We should enhance the procedures for the selection of well-qualified judges of the Court. I welcome this advice and we will consider these ideas in finalising our objectives for the Chairmanship which will be announced later this week.

“But this evening I want to concentrate on one idea which I believe can both help reduce the backlog of cases and also allow the Court to assume its proper role as the guardian of the Convention - strengthening the principle of subsidiarity.

“Subsidiarity has a specific meaning in the context of the Convention. The principle of subsidiarity is that national authorities of Member States (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level. The principle stresses the subsidiary nature of the supervisory mechanisms established by the Convention, including the European Court of Human Rights, in achieving these aims.

“This principle is well established and has been recognised by the Council of Europe in both the Interlaken and Izmir Declarations on reform of the Court as well as in the case-law of the Strasbourg court.

“The United Kingdom agrees that this should be the guiding principle governing the relationship between our national courts and the European Court of Human Rights. Of course the United Kingdom should still be subject to the judgments of the Strasbourg Court but the Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention.

“One way of strengthening the principle of subsidiarity is for the Court to afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention.

“This should not be too difficult to achieve as the Court already accepts its role is a subsidiary one. In Greens and MT - one of the prisoner voting cases - the Court said this:

…the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.

“I could not have put it better myself. But the Court does not always follow its own advice. Prisoner voting is a good example. On one hand the Court says there is a wide margin of appreciation afforded to Member States to decide on the enfranchisement of prisoners recognising that there are numerous ways to organise electoral systems reflecting the differing political traditions across Europe.

“But on the other hand - as we can see in cases such as Frodl v Austria and Scoppola v Italy - the Court seeks to set down specific rules about the circumstances in which prisoners can be disenfranchised. It is no wonder - given these conflicting messages - that it is difficult to design a system in the UK which is compatible with the Convention rights.

“We need clarity. That is why the United Kingdom is intervening in Scoppola before the Grand Chamber of the European Court of Human Rights. I am personally going to Strasbourg to plead the matter on behalf of the United Kingdom. I will argue that the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation And this is an argument that I would submit really cannot be advanced in respect of our national practice on this issue.

“During our Chairmanship we will also work with all the Member States of the Council of Europe to see how this agreed guiding principle of how the Court should work can be strengthened. However, it is important to note that the corollary of this principle is the proper implementation of the Convention by national authorities - which neatly leads me on to the second challenge I think is facing us today.”

Human Rights Act

How best should we enshrine the Convention into the law of the United Kingdom? This is the question the Government has asked of the Commission on a UK Bill of Rights. To be precise the terms of reference are to:

…investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.”The Commission is due to report by the end of next year and I am looking forward to its conclusions and recommendations. There were those who said it would not even be able to reach recommendations on Court reform but it did so. However, we should not underestimate the difficulty of the task facing the Commission and I think it would be helpful to set out some of my own thoughts about the Human Rights Act.

“In doing so I want draw particularly on my experience of the Act gained during my tenure as a Law Officer. My involvement in human right issues arises primarily out of my role of chief legal adviser to Government. The Ministerial Code requires that the Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.

“In practice, government departments and Ministers consult the Law Officers on legal issues which are politically or legally most difficult or sensitive. It is therefore no surprise that I am regularly asked to advise on whether particular policy proposals are compatible with one or another Convention right.

“By long-standing convention, the fact that the Law Officers have or have not advised on a specific matter is not disclosed outside government but I can tell you that I have been kept busy in the last 18 months. In addition to providing legal advice the Law Officers play an important part in the machinery of government which ensures that human rights implications of proposed legislation are given careful consideration. This role is not quite as well known except by those who work in or for government.

“As Law Officers, both I and the Advocate General for Scotland, Jim Wallace, are members of the Cabinet Committee on Parliamentary Business and Legislation. The main function of this Committee is to consider the readiness for introduction of government Bills and to authorise their introduction.

“As a part of this process every department is required to produce a memorandum containing a full and frank legal analysis of the strengths and weaknesses of the human rights issues raised in the Bill and an indication whether the Minister in charge of the Bill can make a statement that in his or her view the provisions of the Bill are compatible with the Convention rights as required by section 19 of the Human Rights Act.

“Either the Solicitor General or I read all these memoranda to satisfy ourselves and provide assurance to the Committee that the department has adequately demonstrated its human rights reasoning. This oversight role has given a very good insight into how the Human Right Act operates.

“The Act - as I have already mentioned - is the method Parliament has chosen to incorporate the Convention into UK law. Whatever one thinks about the success or failure of the Act in doing so, it must be recognised that it is a complex piece of legislation. This complexity arises from its attempt to deal with a number of fundamental constitutional relationships - between the national courts and Strasbourg; between the national courts and Parliament as well as the relationship between the executive and Parliament.

“I am going to touch upon one part of the Human Rights Act to try and demonstrate the challenges in reforming the Act.

“Section 2 of the Act, sets out the relationship between our domestic courts and the Strasbourg court. It provides that national courts determining a question which has arisen in connection with a Convention right must take into account any judgment of the European Court of Human Rights so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen.

“British courts are not bound to follow the jurisprudence of the Strasbourg court. They must take it into account. But what does that mean in practical terms? We must turn to Lord Bingham’s judgment in Ullah v Special Adjudicator in 2004 and I quote:

The House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court … This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

“It is not clear whether this is exactly what Parliament intended by requiring the national courts to take into account Strasbourg judgments. We are entitled to question whether this statement fully takes into account the principle of subsidiarity. Are domestic courts - and the Supreme Court in particular - allowed to differ from Strasbourg where they consider that they are better placed understand the impact of Convention rights in the UK and thus enter into a productive dialogue with the Strasbourg court?

“This issue has been the subject of growing discussion and not just from politicians. Lord Hoffman raised it in his lecture to the judicial studies Board in March 2009 and Lady Justice Arden in her Thomas More lecture here two years ago. In the case of Horncastle, the Supreme Court considered whether legislation which allowed for the admission of evidence of an absent witness at a criminal trial will result in an unfair trial.

“In doing so the Court had, by virtue of section 2 of the Human Rights Act, to take into account the Strasbourg decision in Al-Khawaja and Tahery v United Kingdom which had found that convictions based solely or decisively on hearsay evidence of an absent witness, whom the accused had no opportunity to examine, were incompatible with the right to a fair trial under Article 6 of the Convention.

“However, the Supreme Court declined to follow the Strasbourg decision on this rare occasion as it had concerns whether the European Court had sufficiently appreciated or accommodated particular aspects of the UK trial process. The Supreme Court was entering into a valuable dialogue with Strasbourg where the Grand Chamber is now reconsidering the decision.

“And the matter was returned to last week by the Lord Chief Justice in his evidence to the Lords Constitutional Committee when he said:

I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win. 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 the courts in this country must take account of the decisions of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight in most cases, obviously we would follow them, but not, I think, necessarily.

“We would therefore benefit from better definition of the very important relationship between the national courts and Strasbourg. Had we wished, in 1998 the UK could have made it clear that the national courts must follow the jurisprudence of the international court and adopt an approach similar to our implementation of EU law under the European Communities Act 1972 and allow the courts to strike down primary legislation. We specifically chose not to do so.

“If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.

“This is just a very brief discussion of one section of the Human Rights Act. It shows that the task faced by the Commission is far from straightforward. Fortunately the Commission is comprised of a number of highly respected academic and legal figures who I trust will also be greatly assisted by the contributions of others including members of the audience here today. On 5 August the Commission published a discussion paper asking do we need a UK Bill of Rights and, if so, what should it contain.

“The deadline for responses is 11 November and I hope members of the Bar, with their vast amount of experience of advising and litigating on the substantive Convention rights and the operation of the Human Rights Act, will engage in the process debate. This is your opportunity, whether individually or as members of various Bar associations, to have your voice heard and to influence the Commission’s investigation and the development of Government policy.

“Before I conclude, there is also one more challenge in respect of the Convention that I would like to ask of you. This is to help address the evident problem of perception in respect of human rights that exists among the public in our country today. This is an issue that I have been raising for many years and judged by the recent past things do not seem to be getting much better!

“There has been a failure in the past to explain how the operation of the Convention affects the lives of all of us in a significant and positive manner - and how it is not just for the benefit of those sections of society for whom the public has little sympathy, such as criminals, illegal immigrants and suspected terrorists. This is why the government has also committed in the Coalition Programme for Government that it will seek to promote a better understanding of the true scope of our obligations under the Convention. This is something I greatly welcome, and is a clear indication of the government’s intention on this issue.

“We need to challenge the myths, some of them ludicrous, that have grown up about human rights, particularly in some sections of the media and which I often get repeated to me by concerned constituents. We need to see our part, as a legal fraternity to make sure the law is understood.

“But at the same time we also need to challenge those public authorities who rely on unwarranted interpretations of human rights legislation to justify taking or not taking actions which fly in the face of common sense and devalue and undermine the Convention.

“This is important as it is vital that individuals are fully aware of the role the Convention can play in holding public authorities and especially the government to account. This is a central pillar of the rule of law and of our liberty and as important as those ancient statutes from Magna Carta, habeas corpus and the Bill of Rights that are in contrast routinely cited with approval.

“I am an optimist that this can be achieved. There is a unique opportunity during the time of our Chairmanship of the Committee of Ministers for us to have a fair and accurate debate about the challenges posed by the European Court of Human Rights and the operation of the Human Rights Act as well as a discussion of the undoubted benefits. Indeed the one should facilitate the other.

“This is the way in which we can best strive to achieve consensus both at home and throughout Europe to deliver the changes necessary to produce a flexible framework of human rights to meet the challenges of the next 60 years of the life of the Convention.”

Published 24 October 2011