Nowhere in Europe does the discussion about the legitimacy (beyond government circles, which in any state party might be unhappy with the Court's judgments at times) of the Strasbourg system seem to be so intense as in the United Kingdom. It is my pleasure to post a guest blog by the authors of one of the main textbooks on the ECHR about this issue, who have just published a new edition. A nuanced yet passionate call to remain a party to the Convention:
UK withdrawal from the Convention? A broader
view
In the
following guest blog the authors of the third edition of a textbook on the Law of the
ECHR (Harris, O’Boyle and Warbrick, The Law of the European Convention on
Human Rights, David Harris, Michael
O’Boyle, Ed Bates and Carla Buckley, OUP, 2014) look back to the circumstances
surrounding the publication of the first edition, in 1995. In July 2014
political events in the UK gave rise to talk of possible UK withdrawal from the
ECHR at some point in the future. So the publication of the book and this post
is also an opportunity for reflection at what could be a critical time with
respect to the UK’s relationship with the Convention. A
significant part of what follows draws on the Preface to the third edition of
the authors’ book, the intention being to bring the comments made there to a
broader audience than the book itself would have reached. The post that follows
is written in the authors’ personal capacity - Ed Bates.
Back in 1995 the Preface
to the first edition of Harris, O’Boyle and Warbrick noted that the growth of
support for a bill of rights in the UK created the possibility that the
provisions of the Convention could be directly applicable in UK courts. It was
also noted that ‘if this were to come about, the law of the Convention would be
thrust to the fore of university legal curricula and would achieve an immediacy
and relevance that would dynamise, if not revolutionize, the United Kingdom’s
constitutional system’.
The Human
Rights Act, and dialogue between Strasbourg and national judges
All of this has come true
since the entry into force of the Human Rights Act 1998, the judicial
interpretation of which has given rise to a home grown corpus of human rights
law developed first by the House of Lords and, subsequently, the Supreme Court.
Both of these courts have based themselves on the case law of the European
Court of Human Rights and have not been fearful of pointing to inconsistencies
and lack of clarity in Strasbourg law when this was called for. Strasbourg, for
its part, has welcomed this new form of ‘dialogue’ inter alia with the Supreme Court and looks with admiration at the
manner in which Convention principles have been applied and interpreted in an
impressive body of national case law.
The relationship has run
into episodic difficulties in cases like Al-Khawaja
and Tahery v UK and Taxquet v Belgium
(where the UK was an intervener), when, with the opportunity to reconsider the
chamber judgment, the Court’s Grand Chamber listened carefully to the arguments
of the UK, and adjusted its case law to take into account the specificities of
the UK legal system, as pointed out by the Supreme Court, and in keeping with
the principle of subsidiarity. As has been noted by many commentators, there
has developed over the years a healthy cross fertilisation between the two
courts and their respective judgments are eagerly and expertly parsed and
dissected by each other. The same can be said for the Court’s relationship with
the superior courts of other countries—Germany and France being prime examples.
The importance of this
form of judicial dialogue for the orderly development of the law cannot be
overstated. But it has also given rise to a realization that while the
Strasbourg Court may not be able, as a judicial institution, to defend itself
against the buffetings and criticisms it regularly receives from political
figures, as in the UK, it can intensify its relationships with the national
superior courts through the medium of ‘dialogue’ as a more appropriate and more
adapted response to such criticisms. For it must not be forgotten that the
essence of the notion of subsidiarity resides in the daily application by the
national courts of Convention law.
More possibilities for dialogue
with Strasbourg in the ‘age of subsidiarity’?
Opportunities for dialogue
will be enhanced when Protocol 16 enters into force, for those States which opt
to ratify it. This provides for the possibility of a national superior court to
request an advisory opinion from the Court on issues relating to the
interpretation of the Convention. It has been dubbed the ‘Dialogue Protocol’
because it offers the prospect of another form of adjudication in Strasbourg,
distinct from individual and inter-state complaints, involving the superior
courts as willing partners in the elucidation and development of the case law
rather than as the potentially irritated subjects of violation verdicts.
In the meantime, and (arguably)
against the background of the reform process initiated at Interlaken, including
the valuable contribution made by the UK in the context of the Brighton Declaration, there are very strong
signs that the Court has met the States’ request to ‘give great prominence’ to
‘principles such as subsidiarity and the margin of appreciation’. In that
connection reference may be made to a recent lecture entitled Universality or Diversity of Human
Rights? Strasbourg in the Age of Subsidiarity, in which the Icelandic
judge in Strasbourg, Robert Spano, responded to criticism levelled at the Court
by some former members of the senior judiciary in the UK to the effect that it
too easily overrides the views of national decision-makers. Adopting a careful
analysis of recent case law, he argues convincingly that Strasbourg has been
refining its approach to subsidiarity and the margin of appreciation, ‘adopting
a qualitative, democracy-enhancing approach in the assessment of domestic
decision-making in the field of human rights’. Judge Spano has suggested that
the next phase in the Convention’s life might come to be known as the ‘age of subsidiarity’.
The principle of
subsidiarity has always been a fundamental one in the Strasbourg jurisprudence.
However, the prospect that the Strasbourg system is indeed embarking on an ‘age
of subsidiarity’ should be a vital consideration informing the debate with
respect to its role and relationship with the UK. This point is of major
significance if the time comes when the future of the Human Rights Act is
reconsidered – for the Act facilitates subsidiarity as well as a Strasbourg-UK
judicial dialogue – and is thus at the heart of the issue of the UK’s membership of the Convention
itself.
‘Rights Brought Home’ and
the Convention under attack in the UK
In 1995 the preface to the
first edition of Harris, O’Boyle and Warbrick observed that many of the issues
examined in Strasbourg touch on highly sensitive subjects such as prisons,
immigration and the administration of justice, and that political figures and
media commentators in the UK frequently complain, in ‘strident tones of indignation,
of interference in the domestic affairs of the state by uninformed and
ill-qualified foreign jurists’. So it has not only been since the passage of
the Human Rights Act that the influence of and jurisdiction of the Strasbourg
Court has become contentious in the UK.
The politics of the day in
the mid- to late-1990s were different, however, as is evident from the Labour
Government’s White Paper, Rights Brought Home: The Human Rights
Bill. Looking back today it is interesting to note that reference was made to
the scheme of supervision provided by the Strasbourg Court as one that was ‘now
well tried and tested’ it being established that Convention ‘rights and
freedoms’ were ‘ones with which the people of this country [were] plainly
comfortable’. Those rights therefore ‘afford[ed] an excellent basis for the
Human Rights Bill’ (para 1.3).
Given the concerns
recently expressed in the UK with respect to the Convention as a ‘living
instrument’ the speech delivered by Jack Straw (‘Human Rights and Personal
Responsibility – New Citizenship for a
New Millennium’, St Paul’s Cathedral, London (2 October 2000)) then Home
Secretary, on the day that the Human Rights Act 1998 entered into force, may be
looked upon with some interest. He acknowledged that the Convention was not a
‘monument to history’ but that its ‘living instrument’ character was an answer
to those ‘who assert that the convention has been developed in a way not
anticipated by its draftsmen’. Straw
stated that he had no ‘problem with the living instrument explanation’, but saw
matters in ‘a slightly different way’. The ECHR he said, was ‘relevant to the
UK today – and tomorrow – because the basic values at its heart are timeless’.
They were ‘about the equal worth of all, and the belief in our responsibility
to create a society that advances such equal worth and dignity’.
These comments could be
made with respect to the judgments against the UK in cases such as Hirst
(No.2) (prisoners’ votes), Vinter (whole life sentences) and Othman
(Abu Qatada ) (deportation to Jordan). Yet, on the basis of such rulings,
the level of criticism in the UK against Strasbourg has developed to an
intensity that could hardly have been predicted back in the 1990s. As has been
widely reported the point has been reached whereby certain Government ministers
have suggested that not only should the HRA be repealed, but even that UK
withdrawal from the Convention system should be considered, some going so far
as to challenge the Court’s legitimacy as an institution.
UK withdrawal from the
ECHR?
Against this background we
refer back to 1995, when the Preface to the first edition of our text had asked
the rhetorical question whether the Strasbourg system had developed to the
point where no European state could seriously contemplate withdrawing from the
Convention. What should one make of this today?
It is a measure of the
continued success of the Convention system that the question remains a valid
one in 2014 for the large majority of the treaty’s 47 High Contracting Parties,
indeed, possibly all other States except the UK. For it is our contention that
the intensity of the UK debate about the sovereignty of Parliament and the legitimacy
of the Court is not replicated in other countries. Of course, there are
episodes of criticism elsewhere but, as far as the authors are aware, it would
appear that the UK is somewhat isolated in terms of the depth of its apparent
opposition to Strasbourg. A detailed study published just last month (J Gerards
and J Fleuren 'Implementation of the European
Convention on Human Rights and of the judgments of the ECtHR in national case
law') looked to the reception of the ECHR in Belgium, France, Germany, the
Netherlands, Sweden and the UK. It concluded that ‘[in] Belgium, France,
Germany and Sweden, the overall legitimacy of the Court and its judgments is
hardly subject to debate’ [at 369], even if the Court comes in for occasional
criticism in respect of specific, individual judgments. A debate about the
Court and its influence with respect to the Netherlands did gain some, initial
momentum in 2011-2012, although ‘the critical wind subsided’ [at 256].
Would it be an exaggeration
to say, then, that the depth and intensity of the debate about the Court in the
UK, and which regularly gives rise to talk of denunciation, is a peculiarly
British one? If so, one might ask, ‘why’?
It may also be asked
whether opposition to Strasbourg in ‘the UK’ is genuinely replicated in large
parts of the nation. That this is at least open to question is suggested by the
comments made by two members of the Commission on a Bill of Rights (Baroness Kennedy QC and
Professor Philippe Sand QC) who argued that it was ‘abundantly clear that there
is no [lack of] “ownership” issue [as regards the HRA] in Northern Ireland,
Wales and Scotland (or large parts of England), where the existing arrangements
under the [HRA] and the European Convention on Human Rights are not merely
tolerated but strongly supported’ (para 88.v).
Reform of the Court
Of course, it is not
claimed that the Court is a perfect institution. Nor is it maintained that the
Convention’s member States embrace everything Strasbourg does with spontaneous
love and affection. Yet it was precisely to preserve the Strasbourg system and
its effectiveness for future generations that there has been a determination on
the part of the Contracting Parties collectively to reform the system, and to overcome the
challenges resulting from the overloading of the Court that were starting to
become apparent as far back as the 1990s.
The reform conferences
held in Interlaken, Izmir and Brighton revealed a strong political will to put
the European system on a more solid footing and to give it the tools to deal
more effectively with its worrying backlog of cases without seeking, at the
same time, to clip the Court’s wings or to weaken the level of protection it
provides. Overall there is a clear political attachment to the ECHR amongst
Council of Europe States and an endorsement of the Court’s contribution to the
development of human rights law and democratic standards. The reform agenda has
placed the focus on the issues inter alia of delay in the examination of
applications, the margin of appreciation and the notion of subsidiarity (as
discussed above), interim measures, the election of judges and the vexed
problem of the enforcement of the Court’s judgments (where serious compliance
problems have arisen since the first edition of the book).
From the perspective of
workload and the backlog of cases, Protocol 14 has now entered into force. The
reforms that it introduces, together with internal reforms such as the
provisions for pilot judgments and the prioritisation of important cases, have
started to ease the Court’s workload. At the end of June 2014 the number of
pending cases stood at 84,850 —a considerable reduction from a figure in excess
of 160,000 of some two years before.
In this regard a new mood
of optimism may be emerging at Strasbourg, and one aspect of the reform debate
may be coming to the fore. Noting that the recent phase of reform was commenced
at Interlaken under the notion of a
‘shared responsibility’ for the Convention between Strasbourg and the member
States, the President of the Court has recently stated that it is living ‘up to
its responsibility to achieve greater efficiency, improve its performance, to
allocate its resources more effectively and to concentrate increasingly upon
priority cases, without abandoning any other cases’. For the reform process to
succeed he has called for ‘improvements at Strasbourg’ to be ‘reflected by
improvements at the national level, through better observance of the Convention
and the existence of effective domestic remedies in case of breach’. As he puts
it, ‘[e]ach State must live up to its responsibility’ and the ‘the Committee of
Ministers must act more effectively in supervising the execution of judgments –
the joint and several responsibility of States under the Convention, as it were’.
The responsibility
weighing on the UK today
In this last regard the weight
of responsibility bearing on the UK during what remains a difficult time in the
Convention’s life must be brought into real focus. What is at stake for the
Convention system and Europe overall by the hostility directed toward Strasbourg
by the action of a State held in such high regard as the UK cannot be
underestimated. ‘Europe overall’ – for one only has to visit the Court’s web site to appreciate the broader importance
of the Court given the nature of some the disputes it has been grappling with
recently - an inter-state case brought
by Georgia against Russia concerning a collective expulsion of Georgian
nationals, the resolution of a long-standing dispute between a variety of
Balkan states concerning foreign currency savings in the banks of the former
Republic of Yugoslavia, the detention of accused persons in cages during their
trial, the hospital treatment of an orphan Aids victim etc).
It is difficult to imagine
that one of the leading founders of the system could turn its back on the
Convention without inflicting serious damage on the entire edifice by inspiring
other states, beset by more fundamental problems of human rights to follow
suit. Some of those States may be from central and eastern Europe, who were
encouraged to join the Convention in the 1990s at a critical time in their
history, viewing full membership of the Strasbourg system as a necessary
component of the legitimacy credentials associated with a democratic, European
State. The Secretary General of the Council of
Europe has argued before the Parliamentary Joint Committee examining the
prisoner voting issue (para 109) that the UK’s withdrawal from the Convention
would imperil not just the Convention but the 47 member State Council of Europe
as a whole.
Similar comments apply to
the potential confrontation that lies ahead with respect to the prisoner voting
issue. Former President Sir Nicolas Bratza, has underlined how the position
adopted by the UK is likely to have consequences for those member States whose
human rights records need significant improvement. In a recent lecture he
explained that he was ‘convinced… not only of the fragile nature of the hold on
democracy and the rule of law which there exists’ in some of the newer member
States, ‘but [also] of the vital importance of the wholehearted support for the
Convention system in preserving those ideals’. The UK’s failure to implement the
judgment in Hirst has had, he
explains, a ‘corrosive effect in Russia and Ukraine’, demonstrating that ‘compliance
with the Convention obligations by the established democracies does matter’. Fearing
further ‘erosion of the hard-won Convention standards in many parts of the
Continent’, Bratza maintains that ‘the damage done by the withdrawal of support
for the system by one of its key players would be simply incalculable’. He
concludes:
‘That system may indeed be imperfect. But
it is the only one that we have. What is needed is not to turn one’s back on
that system but to work within it, to make it more effective and, in doing so,
ensure that, 60 years after it came into effect, the Convention becomes not a
dead letter but the vital and living instrument it was always supposed to be’.
[N Bratza, “Living Instrument or Dead Letter – the Future
of the European Convention on Human rights”, (2014) EHRLR 116 at 128 – based on the text of the Miriam Rothschild
and John Foster Human Rights Lecture (9 November 2013)
We conclude with the
following observations. While the issue of UK membership has come to the fore
in UK politics in recent years in ways which could hardly have been foreseen in
1995, it cannot be predicted with any certainty what the outcome will be,
either in the short or long term. But we respectfully submit that the particular
constitutional difficulties encountered by the UK in recent years are straight-forwardly
outweighed by the advantages of being a party to the Convention, and the
important role played by the ECHR in developing human rights standards
throughout Europe and beyond as part of a collective guarantee of human
rights—a role that is intimately bound up with peace and security in the region
as recognized in the Convention’s Preamble. That point applied back in the late
1990s when the British contribution to the Convention was a cause for
celebration under the banner ‘rights brought home’. But it applies today, and
with even greater force, given the reform phase that the Convention system is
going through, and the strong evidence that it is indeed proving to be effective,
including with respect to some of the criticism that has been levelled against
the Court in the UK as regards the principle of subsidiarity and Strasbourg’s
relationship with national decision-makers. To put in jeopardy what has been
patiently built up over more than 60 years would be a disservice to Europe, the
rule of law and to the peaceful settlement of disputes.
D Harris, M O’Boyle, E Bates and C Buckley.
[This
post first appeared at ukconstitutionallaw.org/blog (D. Harris, M. O’Boyle, E. Bates and
C. Buckley, ‘UK withdrawal from the Convention? A broader view.’ U. K. Const.
L. Blog (24th July 2014)].
