The European Courts and the UK – What Future? A New Role for English Courts Bar Council Law Reform Committee Lecture 2014 Professor Sir Francis Jacobs KCMG, QC, Inner Temple Hall, 18 November 2014 Introduction When choosing the title of my lecture – “The European Courts and the UK – What Future? A New Role for English Courts” – I had not foreseen that it would become even more topical as a result of recent political pronouncements. The European Courts By European Courts, I propose to speak in particular of the European Court of Human Rights, established under the ECHR of 1950; and the Court of Justice of the European Union, successor to the Court first established as the Court of Justice of the European Coal and Steel Community in 1952. But I want also to explain why and how the national courts, in the Council of Europe and in the European Union, are also European courts, with a vital role in the application of European law. The EU and the ECJ: Role of national courts I start with the European Union, and the role of the national courts in that system. In EU law, national courts already play a very important role. They, as well as the ECJ, are EU courts. Because EU law is a decentralised system, administered, almost always, at the national and regional levels, not at the European level, it is the national and local authorities which administer EU law. The application of EU law falls in the first place, almost always, to the national courts. The ECJ acts for the most part only when the national courts seek its assistance, by making a reference for a “preliminary ruling” – by asking the ECJ to rule on a question of EU law. The number of references, although growing rapidly, is still relatively small – about 400 a year from the 28 Member States of the EU. That is certainly a very small proportion of EU cases before the national courts. The national courts therefore have a crucial role, assisted of course by counsel (by “counsel” I include advocates in all forms), in applying EU law themselves. They must seek to do so correctly, with instruments which even now are sometimes unfamiliar. Generally, the national courts seem to have done a remarkably good job. Paradoxically, the role of the national courts may be even more important when they consider making a reference to the ECJ. These are the cases in which the judgment will be of particular importance. The purpose of a preliminary ruling is to ensure the uniform application of EU law across the whole of the Union. The ruling given by the ECJ will be binding across the Union, binding on all national courts. 1 Let me say a first word about sovereignty. The EU Treaties and EU legislation, as explicated by the case‐law of the ECJ, do of course constitute a major incursion into national sovereignty. It is not possible to have a Union based on law in which the Member States retain their sovereignty. Indeed the Member States have chosen to pool their sovereignty in certain areas in order to be able to act more effectively, and because of the benefits which joint action can bring. All EU States, including the UK, have always recognised this. They have indeed regularly signed up in successive treaties to majority voting by governments in the Council on EU legislation in new areas, recognising that an EU of many States cannot proceed by unanimity or with national vetoes. The national courts have a key role in the system of references. I would suggest that they can do much to assist the ECJ; they can contribute to improving the judicial system – the way the reference system works; and they can contribute importantly to the quality of the ECJ’s case‐
law. They can assist in three principal ways. First, in the decision whether to make a reference. Second, if so, at what stage to refer. Third, in the way in which they refer. In deciding whether to refer, the national court have a discretion whether to refer, or in some cases an obligation: essentially, the Treaty provides for a discretion except for final courts, which have an obligation to refer. In exercising the discretion to refer, the national court, I suggest, should reflect carefully. Of course a reference should not be automatic: here is a question of European law, so it should go to the European Court. Nor should it be seen as simply a problem‐solving exercise: this is a difficult one, so it should go. The best guide, it seems to me, as often with the law, is to consider the purpose – here, the purpose of the reference system. That purpose is essentially to ensure the uniform application of EU law. I think we could go further and say that a reference is best when a ruling by the ECJ is really necessary or really useful, not merely for the instant case, but for the application of EU law more generally. That is not always the case: for example, where the legislation in question has long expired, and a ruling would be of relevance only in the instant case and of no further utility beyond that. At a mundane level, there may be areas where it is not appropriate for the ECJ to be the arbiter. It may not always be appropriate for example for the Court to resolve conflicts over the interpretation of the EU customs tariff (previously the Common Customs Tariff, now the Integrated Tariff (TARIC)), when there are better ways of resolving such disputes; and the same is doubtless true of other categories of disputes of a highly technical character. By way of example, I once suggested in an Opinion in a case before the ECJ that the Court was not best placed to rule on the customs classification of women’s nightdresses, and I argued from that premiss for a more considered approach to references generally. The Court approved of 2 my approach, although it did not formally endorse it in the judgment – that is not how the Court works. I think the national courts generally are now exercising their discretion carefully, not only in that customs classification cases are now rare. And I did notice that English courts, at any rate, sometimes referred to my Opinion in later cases where perhaps they did not want to make a reference. As to the obligation to refer – the obligation of final courts such as the Supreme Court – that too should in my view be carefully considered. The obligation cannot be taken too literally, or the ECJ would be overrun. So a selection may have to be made. I would not support the approach expressed by one judge from the Supreme Court of another Member State. I was chairing a panel of judges from several Member States, discussing the obligation to refer, when he said: Obviously we cannot refer every case; we have too many cases. So which cases do we refer? Of course we only refer the case where we already know the answer: if we did not know the answer, how could the European Court know it? In my view, once again the key is the purpose of the system. While occasionally a particular Supreme Court may appear to refer less important cases and reserve more important cases to itself, the converse approach seems more in accord with the purpose of the system. Again this seems to be increasingly, if not universally, recognised in practice today. More generally, although this is not a matter for the national courts, a limit on the quantity of cases before the ECJ may assist in improving the quality and consistency of its case‐law. Next: If a reference is to be made, then at what stage should the reference be made? At what stage in the proceedings before the national court? Or should it be left to an appeal court? It may be difficult to give a general answer to these questions, but it can surely be suggested that a reference will come best when the issues before the national court, and the implications of the answer, can be clearly understood. This might suggest that, in general, it will be helpful to refer once the relevant facts have been established, and once the national court has heard argument on EU law and has perhaps formed its own provisional view of the answer. This aspect is closely related to the third question: the way in which the reference is made: how it is formulated, what it includes. A reference may be less helpful if it merely outlines the facts and then says on the law: the claimant contends X, the defendant contends Y. It could even be suggested that a reference is most helpful where the national court, with the assistance of counsel, has heard argument on the EU law point, and has formed a provisional view on the answer to the question(s), a view which the national court sets out in the reference. Where this is done, it may have a number of advantages. It may enable the ECJ to understand more readily and more fully the concerns of the national court and the substance of the issues. Moreover it may assist those presenting observations to the ECJ, particularly the 3 Member States and the Institutions, in understanding the issues. This is especially important because of the very limited opportunities given by the procedure before the ECJ on a reference. In the interest of not delaying the national proceedings, the procedure before the ECJ on a reference is very abbreviated. All written observations are submitted to the Court simultaneously, with no opportunity to reply in writing, and only a brief opportunity to reply at the hearing. So it is essential that the written observations are based on an accurate understanding of the issues and can be fully focused on those issues. The national judge should not think that certain matters can be omitted from the reference because they can be addressed by the parties or the government before the ECJ. That will not give a full opportunity for an exchange of argument. Looking specifically at new tasks for the national courts, I would raise the suggestion that the time has now come when national courts, with their increasing expertise in EU law and the maturity of the EU legal system, should (as some do already) consider carefully the reasons for their decision to refer (and perhaps set them out in their judgment); and should also (as is sometimes already done) include in the reference their own provisional views on the answers to the questions they refer. This would have the considerable advantages which I have already mentioned. To give the national court’s provisional answers might also show how the answer would fit in with the national legal system. It might also encourage the ECJ to be more flexible in its response, where it was apparent that some variation might be appropriate among different legal systems. In the longer term, it could lead to a further development in the EU’s legal system. It might make possible the introduction of the so‐called “green light” procedure. In this procedure, where the national court had advanced its own provisional view, the ECJ, instead of giving its ruling in the usual way, could, in select and appropriate cases, give a green light – that is, a signal that the national court could apply its provisional answer. That would not imply that the Court of Justice endorsed the view of the national court, but only that it did not regard that view as objectionable. Such a system, might, as developed in due time, have substantial advantages. In particular, it might make it possible for the Court of Justice to select the cases which were both sufficiently important, and ripe for judgment. It could focus on the more important cases, and could decline to rule on issues of secondary importance. That might in turn encourage national courts to select the most appropriate cases in which to refer. Other advantages might follow. The method would preserve the right of all courts to continue to refer to the Court of Justice even if in some instances they did not get a ruling from the Court; moreover in such a case, I suggest, there would be other advantages for the Court of Justice and for the national courts. 4 It would also alleviate the burden on the ECJ, and might enable the Court to cope with its increasing case‐load and still decide cases within a reasonable time. It would thereby make it unnecessary to adopt other solutions which would be unsatisfactory, notably by avoiding the need to increase the membership of the Court or to transfer some references to the General Court. It would make it possible for cases to be decided by a larger and more representative number of judges, and for judgments therefore to be less hesitant, or possibly inconsistent, and more authoritative. It could be done without amending the Treaty; contrary to some suggestions, the fact that the Court of Justice has jurisdiction under the Treaty to rule on references from national courts does not oblige the Court to rule on every question referred. It might avoid a proliferation of excessively detailed and complex case‐law, which risks becoming unmanageable for the user and even perhaps for the Court itself. It would leave national courts free to develop, where necessary or desirable, alternative lines of case‐law; where they diverged too far, and where uniformity was truly required, the Court of Justice could intervene in a subsequent reference – or the legislature could intervene to amend the legislation. National courts would have access to information, where the Court of Justice did not give a ruling, about references from courts in other Member States, and about those courts’ approaches to EU law: those references could be read on the Court’s website, with translations into other languages. In these ways, national courts would play a greater role in the development of EU law. In any event, even if we leave aside the green light procedure, there is still much which the national courts could do to develop a dialogue with the ECJ, to assist the ECJ in its tasks, and so contribute to the improvement of the system and to some extent to the resulting case‐
law. As Lord Reed, Justice of the UK Supreme Court, said in his Sir Thomas More lecture on “EU
Law and the Supreme Court”, given at Lincoln’s Inn last week, “it is important to remember
that the entire edifice of EU law is constructed on the foundation of the national courts. It
depends on the existence of an effective and independent national judiciary to ensure respect
for EU law in each of the member states. It is the national court that hears the case, finds the
facts, and applies the law, including EU law. The national court may of course refer questions
to the Court of Justice for a preliminary ruling, but even then it is the national court which
applies the answer to the referred questions and decides the case.
“In carrying out its function as the highest appellate court of the UK, the Supreme Court is, I
believe, as conscious as ever of the importance of maintaining a cooperative relationship with
the Court of Justice, but it is also conscious of its own responsibility to uphold our
5 constitution. The role of the Court of Justice in securing the implementation of EU law at the
national level is not in doubt. The reciprocal role of national apex courts in patrolling the
limits of EU law … should I think be regarded, in the parlance of 1066 and All That, as a
Good Thing. It helps to ensure that national constitutional principles are respected, and may
also help to foster the sense that domestic and supra-national courts are all part of a European
legal community ... A collaborative rather than a hierarchical or competitive relationship
between national apex courts and the Court of Justice can involve delicate and complicated
issues ... Those issues have to be addressed in a spirit of co-operation and respect, and with
an awareness of each court’s respective responsibilities. Approaching matters in that way, the
Supreme Court should continue to command confidence at home as the highest court in our
national system, while also making an important contribution as part of the network of
interwoven systems which constitute the modern legal world.”
The European Court of Human Rights I turn now to the European Court of Human Rights. I will have to mention the recent proposals to limit the role of the Strasbourg Court in the UK, proposals which I find questionable. But let me first discuss the position as it has evolved, and as it is today. The ECHR was drawn up as part of the process of restoring the rule of law in Europe after World War II. It was a historic event in which English lawyers played an important part. The rights set out in the Convention were largely those developed by the English common law, in some respects going back to Magna Carta of which the Government is planning to celebrate the 800th anniversary next year. Indeed the UK can take pride in its role in contributing to setting up the Convention and the Court, even though it initially saw the Convention and the Court as serving essentially to promote British values in other European countries. As the British Institute of Human Rights has pointed out, when the Government has recently set up a Holocaust Commission to consider how best to commemorate the holocaust, it is very relevant also to recall that the legal protection of human rights for all is a direct and lasting legacy of the holocaust. The ECHR of 1950, and the establishment of the ECtHR, was a direct response to the holocaust, and it is partly for that reason that the current talk of denouncing the Convention and withdrawing from the jurisdiction of the Court is, for some, particularly shocking. On the other hand it is said that the current concerns of the Strasbourg Court are far removed from the concerns of the founders of the Convention. In essence, it is maintained, the Court is now often preoccupied with relatively trivial concerns. Nevertheless it seems to me relevant today to address openly the issue: what should be the standard of human rights protection under the Convention: clearly not so low a standard that it overlooks serious violations; nor so high that it catches more than is appropriate to an international court. This is certainly one of the main issues to address. The United Kingdom initially refused to accept the then optional jurisdiction of the European Commission and Court of Human Rights, but did so nearly 50 years ago, in January 1966, for a limited period only, but the UK declarations were always renewed. In the 1990s the newly 6 liberated countries of central and eastern Europe were able to join the Council of Europe, now extending to 47 States, and were able to sign and ratify the Convention. From 1998 the part‐time Commission and part‐time Court were replaced by a full‐time Court, with automatic and compulsory jurisdiction; since then, the only way to withdraw from the jurisdiction of the Court is to denounce the Convention. And since 2000, under the UK Human Rights Act 1998, UK courts have regularly applied the Convention, which they could previously do only indirectly. Recently there has been talk in the UK, independently of concern about the Court, of denouncing the Convention – a step which would until now have seemed unthinkable. Confusion has been generated by proposals to replace the Convention by a “British Bill of Rights”: at that stage, it was envisaged that the UK should have a distinct Bill of Rights, separate from the ECHR. The question then is how the substance would be any different. As Tom Bingham pointed out, it is difficult to see what rights in the ECHR should be removed. And what rights should be added. But there is clearly a link between the idea of a British Bill of Rights and withdrawing from the jurisdiction of the Strasbourg Court by denouncing the ECHR. The Court’s jurisdiction currently extends to all 47 States which are members of the Council of Europe. Indeed it isn’t clear that a State which denounced the ECHR could remain a member of the Council of Europe or of the EU. The background is a combination of rejection in sectors of UK opinion of European cooperation and indeed, as it sometimes seems, a rejection of the very notion of protection of human rights – both those movements having, in some circles, gone too far. But there is also now, and rather recently, a body of opinion in legal circles that the Strasbourg Court has gone too far in its interpretation of the Convention, and that the Court is, to put it bluntly, deciding questions which ought to be decided here. Several senior judges – what the Press headlines call “top judges” – have entered the debate. Interpretation Let me take two of the fundamental criticisms. First, it is said that the Strasbourg Court’s approach to interpretation of the Convention is flawed. This criticism focuses on the Court’s approach to the Convention as a “living instrument”. Specifically, it may be said that the interpretation goes far beyond the intentions of those who drew up the Convention. And it gives the Court too much licence in interpreting the Convention. I would suggest that it cannot be wrong in principle to treat the Convention as a living instrument. Let me immodestly cite what I wrote on this, in my book on the Convention, 40 years ago, when the Convention was little known: “The interpretation of the Convention must be ‘dynamic’ in the sense that it must be interpreted in the light of developments in social and political attitudes. Its effect cannot be confined to the conceptions of the period when it was drafted or entered into force. Thus 7 the concept of degrading treatment, in Article 3, may be interpreted to include racial discrimination, even though this might not have entered the minds of the drafters of the Convention; and the protection of privacy under Article 8 must be developed to meet new technological developments which were not envisaged twenty‐five years ago. Many other examples will be met in subsequent chapters: changes in the concept of the family, of education, of forced labour, or of trade union freedom. It cannot be objected that this approach to interpretation extends the obligations of the Contracting States beyond their intended undertakings. On the contrary this approach is necessary if effect is to be given to their intentions, in a general sense. They did not intend solely to protect the individual against the threats to human rights which were then prevalent, with the result that, as the nature of the threats changed, the protection gradually fell away. Their intention was to protect the individual against the threats of the future, as well as the threats of the past.” And let me mention by way of illustration some up‐to‐date examples of rapidly evolving standards in the field of human rights. The death penalty is an obvious example in Europe. Provision for it was kept in the original text of the Convention, but that provision was removed by an optional Protocol, and it is now prohibited across Europe. Second, homosexual conduct between consenting adults was still a criminal offence in part of the UK when that criminalisation was found contrary to the Convention by the Strasbourg Court. And it is still a criminal offence in parts of the world outside Europe, even punishable by the death penalty in some. To take that a little further, Section 28 of the Local Government Act 1988, regarded by some as the legislative expression of homophobia, was supported by the very same politicians who last year introduced and adopted legislation providing for same‐sex marriage. Opinion is sometimes behind the law, sometimes in advance; in any event, standards may evolve very rapidly. So there can hardly be an objection in principle to evolutionary interpretation of a basic text which is rightly and unavoidably formulated in general terms, and which gives the Court, rightly and unavoidably, considerable scope to interpret it. But that does not dispose of the argument. The crucial question becomes: does the Court go too far in interpreting the text? I will take very briefly some recent examples which have proved in some quarters controversial. First, the extra‐territorial reach of the Convention. By Article 1, the States Parties undertake to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention. It is said that the Court has gone beyond this by accepting certain complaints concerning acts committed by a State outside its territory. But surely Article 1 cannot be interpreted as meaning that the agents of the State are free to violate human rights, provided they do so abroad. Yet this is what is apparently argued by some critics. 8 Second, the Convention prohibits torture. Can a State extradite or deport to a third country a person who faces torture there? Third, the Convention guarantees the right to a fair trial. Can a State extradite or deport to a third country a person who is liable to be convicted on the basis of evidence obtained by torture? In holding that the Convention can be applied in these cases, the Court is not in my view going beyond its remit, or adopting far‐fetched interpretations of the Convention; indeed, it can be argued that English courts have or might well have reached similar results. Another category of examples is on freedom of religion: a highly sensitive issue. The Court has recently been confronted with many sensitive cases in this area, and has responded sensitively, to the approval and respect of many observers, upholding freedom of religion as a fundamental freedom while respecting the legitimate concerns of public authorities when regulating that freedom. Finally but perhaps the most important in the UK debate, because the Government has treated it as a principal focus of its concerns, is that of prisoners’ rights: the long‐running saga over a single issue, that of prisoners’ right to vote. As is well known, the Strasbourg Court has held that the UK’s blanket ban on convicted prisoners’ voting rights infringes Article 3 of the First Protocol to the Convention. The Court explicitly allowed a wide margin in implementing the judgment: it would be sufficient to give the vote to a specific class of prisoners. The Government has failed to give effect to the judgment, partly on the ground that this was a matter for Parliament, not for the Strasbourg Court. The Government did however, after some considerable delay, set up a joint committee of the House of Lords and House of Commons, which has recently produced an excellent report. The Committee was very clear on the issue of the sovereignty of Parliament: it pointed out that the principle of Parliamentary sovereignty is not an argument against giving effect to the judgment of the Strasbourg Court. Parliament remains sovereign, but that sovereignty resides in Parliament’s power to withdraw from the Convention system; while we are part of that system we incur obligations and we cannot pick and choose which judgments to respect. The committee added that a refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states which have a poor record of protecting human rights and which may use the UK’s refusal as setting a precedent that they may wish to follow. On the issue directly before it, the committee recommended that all prisoners serving sentences of 12 months or less should be given the right to vote. 9 There are several surprising features of the Government’s approach to this issue, even apart from ignoring the idea that there could be some positive value in allowing some prisoners to vote. The Government had even argued, surprisingly, that Article 3 of the First Protocol did not grant the right to vote to anyone at all. It is also somewhat strange that it should have singled out this issue to orchestrate defiance of the Court. It could have adopted the normal course of routinely implementing the judgment, while giving that judgment, if it thought fit, rather limited effect, as the Strasbourg Court had explicitly accepted would be sufficient to comply with it. It is of interest to note that Ireland and Malta, which had previously followed the English practice of denying all prisoners the right to vote, both routinely amended their legislation when the Court gave judgment against the UK, even though the judgment was not binding on those States. It is also of interest that, when the joint committee was taking evidence, it appeared that no fewer than 43 of the 47 members of the Council of Europe gave at least some prisoners the right to vote. The UK was in a minority of 4, along with three States with which it might not generally choose to be grouped. The right of at least some prisoners to vote is also recognised outside Europe by mature democracies, with the unsurprising exception of the USA. The role of the national courts I turn now to the role of the national courts under the Convention. Clearly the national courts have a vital role in the interpretation and application of the ECHR. They have to apply the Convention alongside their national law. It would seem obvious that they should endeavour to interpret their national law so as to be consistent with the Convention. This is no more, at first sight, than the long‐established rule that national law should be interpreted where possible so as to be consistent with the State’s obligations under international law and in particular consistent with its treaty obligations. The Convention is perhaps more demanding, however, than many other treaties. First, by protecting fundamental human rights, in very general language, it may go more deeply into national law and indeed national life than other treaties. Second, it sets up its own Court, whose decisions, if not formally and directly binding on national courts, are certainly binding on the State concerned, and which certainly deserve careful attention by all States Parties to the Convention, and by their courts. Where possible, all those courts should follow the Strasbourg case‐law. There may however be situations, if only exceptionally, where national courts consider themselves not bound to follow the Strasbourg decisions. 10 The Convention plays today such an important part in the work of the English courts that it is surprising to recall that, although the UK ratified the Convention as long ago as 1953, nevertheless because such a treaty can be applied by the UK courts only when it has been given effect by Act of Parliament, it is only since 2000 has it been open to English courts to apply the Convention. This they can now do, under the Human Rights Act 1998. Before then, although the Convention is a treaty designed par excellence to confer rights on individuals, the UK courts could not enforce those rights and the claimant would normally have to exhaust all possible remedies in the English courts, in case English law could be used to provide a remedy, which rather often it did not. For example (at risk of over‐simplifying), it was eventually established that there was no right of privacy under English law. Then and only then, all possible remedies exhausted and the claimant probably exhausted too, could the claimant have recourse to the Strasbourg Court. The Human Rights Act had the huge and obvious advantage that it enabled the English courts to apply the Convention themselves. And they did so to good effect, as predicted by Lord Irvine as Lord Chancellor when introducing
the Human Rights Bill in Parliament. He said that it would “allow British judges for the first
time to make their own distinctive contribution to the development of human rights in Europe".
A sentiment echoed by the late Lord Bingham when he said, “it seems to me highly desirable
that we in the United Kingdom should help mould the law by which we are governed in this
area ... British judges have a significant contribution to make to the development of the law of
human rights”. As he rightly pointed out, it is a contribution which, before the HRA, British
judges were not permitted to make.
There has been discussion recently on whether English courts, in deciding cases on human rights, should focus on English law or on the law of the Convention. Ideally, it seems clear to me, they should do both. And ideally, they should be able to show, in their judgments, that the two systems do not conflict, but can be applied in harmony. Of course the same applies to national courts in other Convention countries, and to their national law. One advantage of a focus by national courts on the Convention is that it can assist the Strasbourg Court. And the UK courts have made a valuable contribution here, as Sir Nicolas Bratza has said. Speaking as the then outgoing President of the Strasbourg Court, he said: “… the Strasbourg Court has, in my perception, been particularly respectful of decisions emanating from courts in the United Kingdom since the coming into effect of the Human Rights Act and this [is] because of the very high quality of the judgments of these courts, which have greatly facilitated our task of adjudication. In many cases, the compelling reasoning and analysis of the relevant case‐law by the national courts has formed the basis of the Strasbourg Court’s own judgment.” [Sir Nicolas Bratza, ‘The Relationship between UK Courts and Strasbourg’, (2011) 5 EHRLR 505, 507]. There are also specific reasons why the national court should apply, not only its national law, but also the Convention. As has been suggested by others, notably Lord Kerr of the UK Supreme Court, a national court which finds no violation of the Convention should explain clearly why it decided as it did: this explanation “is necessary for the Strasbourg Court to understand the local circumstances that led to a particular decision and, perhaps more 11 importantly, why a different outcome could create substantial difficulties in the administration of justice in the national setting”. So, where a national court – and especially the final national court – finds that there is no violation (and it is only where the national court finds that there is no violation that the case can go to Strasbourg), then the national court should explain fully the reasons for that finding. Exceptionally, we may be able to go further. Where a judgment of the Strasbourg Court causes difficulty, it may be that there are features of the national law which explain that difficulty and which may not have been apparent when the Strasbourg Court gave its judgment. In that event, the national court may set out the reasons for the difficulty, and the Strasbourg Court may then re‐consider its previous judgment. This has occurred in several cases from the UK. An example recently given in an address by Lord Neuberger, President of the UK Supreme Court, is the Horncastle case concerning the use of hearsay evidence. As he explains, the Strasbourg Court had decided that an English statute which enabled defendants to be convicted on the basis of hearsay evidence violated Article 6(1) of Convention, the right to a fair trial. That decision was regarded by the UK prosecution authorities as seriously problematic, and they brought the issue before the Supreme Court in the Horncastle case (R v Horncastle [2009] UKSC 14). The Supreme Court gave a judgment which set out in some detail the justification for allowing conviction on hearsay evidence: the special circumstances, such as the death, or intimidation, of essential witnesses; the safeguards for defendants which existed in the statute; and the differences between the common law and the civil law which prevails in most other European countries and with which most of the Strasbourg judges were probably more familiar. The Strasbourg Court not merely considered the arguments, but effectively accepted them and reversed its previous ruling. The relationship between the Strasbourg Court and the national courts is, as it should be, not a top‐down relationship but one of judicial dialogue. As Lord Phillips said in Horncastle, although the domestic court was required to take account
of the jurisprudence of the European Court of Human Rights, nevertheless where, on rare
occasions, the domestic court was concerned that the European court’s decision insufficiently
appreciated or accommodated particular aspects of the domestic process, it might decline to
follow the decision. The Supreme Court had entered into a ‘dialogue’ with the European Court,
and its Grand Chamber subsequently reconsidered its approach. Lord Neuberger followed suit
in another case, indicating that in his view, “this court is not bound to follow every decision of
the European Court. Not only would it be impractical to do so: it would sometimes be
inappropriate, as it would destroy the ability of the Supreme Court to engage in constructive
dialogue with the European Court which is of value to the development of the Convention”.
There are several other respects in which national courts may now be regarded as having a special role. The first is that there is now a new emphasis on the “margin of appreciation” or margin of assessment, which the national authorities enjoy. The Strasbourg Court has long recognised that in principle the national authorities are better placed than an international court to assess the need for restricting the exercise of human rights. This has been taken 12 further in the Court’s recent case‐law. As Dean Spielmann, now president of the Strasbourg Court, has said: the Court should exercise judicial self‐restraint where superior national courts have analysed comprehensively the precise nature of the restriction, on the basis of the relevant Convention case‐law and the principles drawn therefrom. And in June of last year the Convention was amended, so as to introduce in the preamble a specific and explicit reference to the margin of appreciation: the 15th Protocol adds the following recital to the Convention’s preamble: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights …” The introduction of this new recital has been explicitly welcomed by the Strasbourg Court. The amendment gives formal recognition to the principle of subsidiarity and the margin of appreciation, both long established in the case‐law of the Court; but it may also encourage the Court to exercise a greater degree of self‐restraint where the national courts have accepted, and have adequately explained, the justification for a restriction which is challenged. This too will give the national courts an even more significant role. And it is not only the national courts, but also other national authorities, which should engage in this process. As Dean Spielmann again has pointed out, in discussing the same topic: “There is a more general point to emphasise here, that one might call the procedural aspect of the margin of appreciation. It is implicit in the very term used, “appreciation”. The competent domestic authority, which may be a court, or parliament, or the administration, must engage in a process of appreciation, or assessment, of the rights and interests at stake.” In these ways the national courts can assist the European Court of Human Rights where their reasoning leads it to accept that a restriction of a fundamental right is justified. And for these reasons, it is helpful for the national courts, when giving judgment, to set out their views both on national law and on the Convention. The national court should explain fully the operation of the national law, and the justification for the restrictions it imposes on fundamental rights, and should also explain how, in its view, those restrictions are justified under the case‐law of the Strasbourg Court – as that case‐law has developed – or even, occasionally, as it ought to have developed. So all in all, the national courts have an important role, a leading role, in applying the Convention; in developing the case‐law, in developing a dialogue with the Strasbourg Court, in acting in a partnership with the Strasbourg Court in the protection of human rights. What of the future? 13 A rather different role for English courts is envisaged by the recent proposals of the Conservative Party. The Conservative paper, while headed “Protecting human rights in the UK”, can only be regarded as negative, even destructive. It seeks to limit drastically both the role of the Strasbourg Court and the role of English courts in protecting human rights. It proposes repealing the Human Rights Act and replacing it with a British Bill of Rights. The term British Bill of Rights raises difficult questions over how that fits within the system of devolution within the UK, questions which do not seem to have been considered by the authors of the proposaIs and which I happily put to one side. The British Bill of Rights, which at one time was intended to be a new Bill of Rights specially written for the UK, is now nothing of the kind: it would incorporate the text of the Convention, because (I quote) “the UK stands by its commitments when we signed the Convention.” But in the same breath it announces that the rights will be qualified and reduced where government and Parliament think fit. It identifies restrictions on deportation under Article 8 (the right to a private and family life) and under Article 3 (protection from torture and inhuman and degrading treatment), as its targets. But as Dominic Grieve QC has pointed out, most of the decisions interpreting these key articles in cases concerning the UK have been decisions not of the Strasbourg Court but of the English courts. Keir Starmer QC has suggested, in his recent Tom Sargant lecture, that, lurking
behind these proposals for reform (is “reform” the right term here?) is the idea that, by repealing
the Human Rights Act and/or withdrawing from the European Convention on Human Rights,
the government would be free to remove foreigners from the UK at will, notwithstanding any
threat they face of death, torture or ill treatment. But, as Keir Starmer demonstrates, even if the UK were to denounce the Convention, it would still be bound by other fundamental treaty obligations, notably the UN Convention against Torture and the International Covenant on Civil and Political Rights, which would have very similar consequences to the European Convention. The paper also says that Human Rights laws will only be invoked for “the most serious cases.” The stated aim that “trivial” violations of rights will not be settled by a court of law, and that Parliament will determine a threshold, below which Convention rights will not be applied, begs the question as to how and where this line is drawn. By usurping the role of our own courts in interpreting the law, Parliament will be effectively taking on the task of micromanaging the Convention, surely a task for the courts, not for Parliament. And somewhat surprising in a system where Parliament can, in everyday practice, effectively be controlled by the executive. But the paper’s most remarkable feature is the assumption that having made all these changes,
the United Kingdom should be able to seek a special status within the Council of Europe that
allows it to remain a signatory of the Convention while treating the judgments of the Strasbourg
Court as merely advisory, despite its remaining a legal obligation for other countries to comply
with them. And the paper threatens withdrawal if agreement cannot be reached on this.
14 The paper seems to suggest that that special status for the UK can be granted by the Strasbourg
Court or by the Council of Europe. Plainly it cannot. And it would drive the proverbial coach
and horses through the Convention system.
Underlying the proposals is the view that Parliament, not the courts, should be taking the
ultimate decisions on the issues that currently arise under the Convention. That view was
essentially supported by a justice of the Supreme Court, Lord Sumption, in a remarkable and
powerful lecture which has received much attention. It is also reflected in an article by Lord
Judge in the October issue of the Bar journal, Counsel.
There is even a prevailing view in the UK, reflected in Lord Judge’s article, that Parliamentary
sovereignty, a system in which the legislature has the final say on all matters. is the system
which applies in western democracies generally. That is very far from the case. In most of
those democracies, there is a supreme court, or sometimes a constitutional court, which is
supreme in the sense that its decisions, especially in human rights cases, cannot be overturned
by the legislature, but only by an amendment to the constitution which in practice is extremely
difficult to amend.
There are certainly powerful reasons in the UK for the attachment to Parliamentary
sovereignty, and there is no reason to query that, provided that it is exercised in accordance
with the UK’s international obligations.
Judges, and others, may well take the view that, whatever the position in other systems, in the
UK it is desirable for Parliament, in general, to have the last word. My own view, for what it
is worth, is that a combination of judicial decision and legislative competence may be best,
with some exceptional possibility of override. The Human Rights Act 1998 is a good example,
with its provision for a declaration of incompatibility, enabling a breach of the Convention,
established by the UK courts, to be remedied by legislation if Parliament so chooses, as it
generally has done without difficulty, facilitated by a simplified and speedy procedure.
But the curious feature of the argument for effectively transferring the final decision in the UK
from the courts to Parliament in the area of human rights is that it overlooks one aspect, namely
the European aspect. It takes no account of the advantages of a single European Court of
Human Rights for virtually the whole of Europe : 47 States, and 800 million people, a
Convention and a Court laying down minimum standards for all the States, which must surely
be for the benefit of the whole.
It also overlooks, incidentally, the European Union, which exercises limited powers over
individuals and companies in the EU and beyond. The EU legal system must make provision
for protection of fundamental rights vis-a-vis the European institutions, and vis-à-vis the
Member States where they apply EU law. Hence the development of significant ECJ case-law
on fundamental rights, and the striking down of some EU measures; hence the adoption of the
EU Charter of Fundamental Rights which on Convention rights mirrors the Convention; and
hence the proposal for the EU itself to accede to the Convention.
But of far greater practical everyday importance is the role of the Convention as a common
European standard.
What then are we to make of the new proposals? They can of course be understood as motivated primarily by party political considerations, and I do not comment on that aspect, 15 but are they not, in the light of the Convention, a considerable over‐reaction: and an over‐
reaction to a limited, even diminishing problem. In fact, there is a tiny proportion of cases in which the Strasbourg Court finds an infringement of the Convention by the United Kingdom. According to figures published by the Joint Committee on Human Rights, of the 2,082
applications made against the UK in Strasbourg in 2012, 98% were declared inadmissible or
struck out, 14 resulted in no adverse finding, and in only 10 cases were Convention rights found
to have been breached: that is an extremely small proportion of the total number of cases. And
that is a reducing proportion. It was 1.3% in 2010, 1% in 2011, and approximately 0.5% in
2012. Even in those cases, the Court will where appropriate recognize a wide margin for the United
Kingdom in implementing the judgment – as it made clear in relation to prisoners’ voting
rights.
And there are indications that the Strasbourg Court will, in the future, go further in recognizing
a margin and implementing the principle of subsidiarity.
Moreover, as we have seen, there is generally a wide measure of agreement between the
Strasbourg Court and the English courts on the scope of human rights. Where they disagree,
and where the English courts consider that the Strasbourg Court has taken a wrong path, the
Strasbourg Court may re-consider.
Conclusions
In a brief conclusion: it is no exaggeration to say that the European Court of Justice and the
European Court of Human Rights have laid down the constitutional foundations of a Europe
governed by the rule of law. Very careful thought is needed before contemplating withdrawal
from the Convention, or indeed from the European Union. What would take their place? What
effect would that have on the place of the UK in the world? And on its international reputation?
And what impact would it have on other countries, both in Europe and beyond?
The notion of national sovereignty to defend unlawful acts has been a thread throughout
much of recent human history. We should be trying to temper that notion. I would suggest
that advanced civilisations are beginning to accept a more worthy notion, the sovereignty of
law.
In closing, I should like to quote from the recent lecture at King’s College London by Lord
Phillips of Worth Matravers, former president of the UK Supreme Court. In his lecture, entitled
“European Human Rights – A Force for Good or a Threat to Democracy?”, he reviewed in
detail a number of the more controversial decisions of the Strasbourg Court concerning the
UK, and also reviewed the discussion by many senior UK judges of the role of the Strasbourg
Court. In his lecture Lord Phillips suggested that the Court needed to be more sensitive to the
requirements of subsidiarity and of the margin of appreciation. He also suggested that the Court
had in some cases extended its jurisdiction in ways that may be open to question.
“But” he concluded (and I quote), “when the countries of the Council of Europe are looked at
as a whole, the influence of the Strasbourg Court has been beneficial. I have given examples
of where Strasbourg has rightly found this Country wanting. I could give many more in relation
to other members of the Council of Europe. Europe needs the Convention and Europe needs
16 the Court. I have no hesitation in expressing my conclusion that Strasbourg is a powerful force
for good.”
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