Lecture on the ECHR

Monday, 28 February, 2022

Speeches

Lecture on the ECHR

Introduction

Thank you for this opportunity to address the Society about the European Convention on Human Rights, which is an issue very much on the minds of us all as we witness the unprovoked and unjustified attack by Russia on Ukraine, both members of the Council of Europe. Over seventy years since that founding meeting at The Hague, held in the shadow of the Second World War, have passed and yet the mistakes of history are being repeated. A serious question mark now arises as to the viability of the frameworks that our grandfathers bequeathed to us. That includes the Convention. How are we to safeguard Fundamental Human Rights and Freedoms on our very own continent in light of this invasion?

It is my sincere wish that, as British Conservative lawyers led the way then, that in this century we will lead the way once again, in helping to revitalise and reform these institutions. This does not mean that we should be uncritical, but nor does it mean that we should be inarticulate and imprecise when it comes to identifying the issues. And it most certainly means that we should be coming up with positive solutions rather than looking for the door.

The ECHR

1. Misguided criticisms of Strasbourg

The ECHR and Strasbourg Court have been subject to a lot of criticisms in this country. The criticisms which are made of it are well known but the nub of the complaint is that the Convention as interpreted by the Strasbourg Court imposes constraints on the UK which are not justifiable.

To be clear, I do not take critics of the ECHR to say that the imposition of any constraints on the powers of States is illegitimate. It is plainly entirely right that there are constraints preventing States from engaging in extra-judicial killing or torture for example. Rather the complaint is that those constraints which the ECHR now imposes are too onerous and go beyond the core that is required in order to be a civilised democracy.

I share those concerns, however, unlike some I do not conclude from that that we should leave the ECHR. Nor do I think we should idly complain about it without doing anything substantive. Instead, I think we should seek to reform the ECHR.

The common critique of the Strasbourg court is that it does not pay sufficient attention to the text of the ECHR and to what the parties originally intended when signing up to it. It is of course true that the text of the Convention must be respected and that the Court should not come up with an interpretation that is contrary to the text. Similarly, the text must be interpreted in light of the travaux preparatoire. These are two important constraints on the interpretative exercise of the Convention and I believe that in Hirst v United Kingdom[1] – the prisoner voting right case – reliance on the travaux preparatoires should have led to the case being decided in favour of the UK.

However, if we are honest with ourselves, these lines of criticisms fail to properly target the bulk of the expansion of the scope of the Convention by the Court. The reality is that the language of the Convention is vague, open-ended and often intentionally so.

To see this point let’s consider Lord Sumption’s excellent Reith lectures and the response by President Spano. Sumption criticises the wide reading the Court gave to Article 8 to include within its scope matters such as assisted suicide and abortion.[2] He compares it to the case-law of the US Supreme Court on the so called doctrine of substantive due process (under which doctrine the Court invented a right to privacy).[3]

Spano responds by pointing out that the US Constitution unlike the ECHR does not contain a right to privacy in its text.[4] So, whilst there is force in the criticism of the US Supreme Court that it failed to properly respect the text of the US Constitution, that criticism does not apply to the ECHR. Furthermore, Sumption argues that the Article 8 was intended to protect against totalitarian surveillance states and so should be construed narrowly. Spano responds that there is no such limitation in the text of the Convention.[5]

The reality is that both the wide and the narrow interpretations are compatible with the text of the Convention. Lord Mustill once warned of ‘the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision’.[6] Whichever side tries to claim that the text of the Convention backs them up is making that mistake. In my lecture at Queen Mary last year, I drew on Hart’s Nightmare and the Noble Dream to explain that vague and open textured terms gave courts quite a bit of discretion to decide what they should mean. Hart called it the discretionary field of judgment. That exercise by the courts is different from the normal task of interpretation and is more akin to legislating (albeit in a gap filling way). It is not applying the law but deciding what it should be.[7]

So whilst we might have preferred that the Court take a narrower interpretation of those rights it cannot be said that the wider interpretation is inconsistent with the terms of the Convention.

On top of deciding whether to adopt a narrow or a wide interpretation of the Articles of the Convention, another option available to the Court is to leave the issue to individual member states. As far as I am aware it has done so only when it comes to Article 2 – the right to life – and in particular at what point does that right start to bite. Is it conception, birth or somewhere in between? There is nothing in the text of Article 2 which settles the issue either way. Both conception and birth are plausible readings of Article 2. However, instead of deciding the issue itself (and hence binding all 47 member states) the Court has, wisely in my view, decided that it was for each state to decide when the right to life begins.[8]

Opponents of the Court frequently accuse of it inventing new rights in contravention of the terms of the Convention.[9] Defenders of the Court, like President Spano, reject the accusation by pointing out that they are acting consistently with the open textured nature of the text.[10]

As I said, I think Spano is right in saying that this outcome is not inconsistent with the text of the Convention. However, such a conclusion was not required by the text of the Convention (and to be fair to President Spano, I don’t think that he is saying that).[11] And so the Court had a choice on how to proceed and it chose the broad interpretation. Therefore, I think the language of inventing rights – whilst not the most accurate – does have an important grain of truth.

1. Positives about the ECHR

Whilst there are criticisms to be made of the Court I do want to acknowledge two positives.

The first is that for all of the criticisms which we might have of Strasbourg by the standard of human rights courts worldwide it is fairly conservative. For example, contrast it with the Canadian Supreme Court. Strasbourg decided that sensitive ethical issues such as assisted suicide should be left to member states to decide. By contrast the Canadian Supreme Court unanimously held that assisted suicide was a human right,[12] and a ban on the possession of child pornography was disproportionate.[13] Those urging that instead of looking to Strasbourg we should look at other common law jurisdictions such as Canada should be careful what they wish for.

Second, since the Brighton Declaration – so well negotiated by my One Nation friends Ken Clarke and Dominic Grieve – the Strasbourg Court has shown much greater respect to the democratic decisions of nation states. An empirical analysis done in 2017 by Prof Madsen found that since Brighton the Court is providing more subsidiarity and that its use of the margin of appreciation doctrine has increased.[14] The UK has been a great beneficiary of this trend as Prof Madsen found the UK ‘has the highest detected win rate in cases involving the doctrine.’[15] The now President of the Court has characterised the post Brighton era as an age of subsidiarity.[16]

This increased reliance on subsidiarity and the margin of appreciation has acted as a useful counterweight to the Court’s adoption of wide interpretations of the scope of the rights in the Convention. What one often sees in Article 8 cases – particularly those not involving core Article 8 issues – is that the court will hold that Article 8 is engaged and but then either hold that the restriction was proportionate or that it fell within the States margin of appreciation and so there is no violation. This way the broad scope of Convention rights is tamed. That’s not to say such a state of affairs is wholly satisfactory (more on this below). I would much prefer if the Court took a narrow interpretation of the scope of the rights but one must acknowledge that through this pragmatic approach the Court has avoided finding violations in non core areas.

Indeed, since the Brighton Declaration there has been no significant clash between the Strasbourg Court and the UK. But it is true that there are a number of Strasbourg doctrines which are problematic -such as the way in which Articles 3 and 8 impinge our ability to control our borders – but these tend to predate the Brighton process. In other words, things are improving but there is still some way to go.

1. Is proportionality good?

Whenever there is an interference with a right, the Strasbourg Court will consider whether this interference is justified by applying the proportionality analysis. Such an analysis consists in asking four questions: (i) whether the limitation pursues a legitimate aim, (ii) whether it is rationally connected to that aim, (iii) whether least restrictive means were available, and finally (iv) whether a fair balance was struck between the various interests at play.

I must confess to being concerned by this approach as it places judges in the position of making value judgements which are not for the judiciary to make. The last stage of the proportionality analysis asks whether a fair balance was struck between the right and the legitimate aim the restriction pursues. This requires being able to assign a value to each on the same scale and compare them. But as Profession Elliott put it human rights and the public interest are incommensurable. Making them commensurable necessarily entails a value-judgment.[17]

However, as Professor Simmonds noted, once we move past – as we must – the illusion of commensurability we realise, following Aristotle, that proportionality is simply justice:

‘a law which perfectly acknowledges all relevant interests and considerations, and exhibits respect for them in an appropriate way, is a perfectly just law.’[18]

And so, therefore, proportionality requires asking judges whether they think a law is just and giving them the power to strike it down or declare it incompatible if they do not think it is. This is not an acceptable state of affairs. We disagree about what justice requires, about what is or is not proportionate. In liberal democratic societies we settle those disagreements through democratic means and not through the courts.

This was brought home to me during the first lockdown. The Coronavirus Act provided for modification to the Mental Health Act to allow for people to be sectioned more easily. These provision could only come into force if the Secretary of State for Health and I agreed. The NHS asked us to turn those provisions on; they presented evidence saying that this was not needed. I was not persuaded – based on the evidence adduced – that it would be proportionate to bring those measures into force. The Health Secretary agreed with me.

What struck me about this is that if we had taken the decision to turn on those powers and had been challenged under the Human Rights Act, the courts would have had to ask themselves exactly the same question that we had to ourselves. By contrast in ordinary judicial review there is a clear demarcation between the questions that are for the court and those that are for the decision maker.

Now to be fair, judges recognize the dangers inherent in this proportionality approach. The solution is generally to defer to decision maker’s assessment of proportionality. As Lord Reed put it in his response to the Independent Human Rights Act Review:

‘The key lies in the exercise of an appropriate degree of restraint by the courts, based on recognition of the constitutional role of the judiciary and respect for the constitutional roles of the democratically accountable branches of government.’[19]

But plainly different judges will approach such issues differently. Indeed, in his submission which I just quoted Lord Reed cites four of his judgments where he emphasised the importance of such restraint: in three of those he was in the minority and in the other he was in a bare 3-2 majority. Whilst Lord Reed exercised the appropriate degree of his restraint some of his colleagues did not.

Be that as it may, the current Supreme Court, under Lord Reed’s leadership, has in the last year demonstrated the appropriate degree of restraint. It is essential that this continues and that we remain blessed with sensible judges like Lord Reed and Robert Spano. The alternative would be that outcomes would depend on the substantive moral and political views of individual judges, that would be a disaster.

The Domestic Legal Framework

1. The Benefits of the Human Rights Act

Had I been an MP in 1998 I would have voted against the Human Rights Act but I now support its retention. Why is that? Especially since Strasbourg entered the age of subsidiarity, the Human Rights Act operates as a useful shield for the UK. This is because when deciding on the standard of review which it will apply the Court will consider whether an assessment of the proportionality of the measure has already been done by the domestic courts. If that is so, it will typically (though not always) only intervene if something has gone wrong rather than merely if it would have answered the question differently.[20]

Another advantage of the Human Rights Act arises in matters of national security. Without the Human Rights Act, our agencies would be sued directly at Strasbourg and would not be able to rely on secret material to show that they acted properly. Thanks to the Human Rights Act they can be sued in our domestic courts where they can rely on the closed material procedure. The Strasbourg court would then respect the assessment of our domestic courts without having to consider the secret materials. This is another way in which the HRA shields us.

1. How the HRA can go wrong

However, there are ways in which the operation of the HRA can go wrong. The main problem is that it can lead to gold-plating of the ECHR. The most extreme way in which such gold-plating could occur would be for the courts to reason as follows: the rights created in Schedule 1 of the HRA are British statutory rights and so our courts can interpret them to mean whatever they want, including giving them greater protection than the Strasbourg court would.

Fortunately, early on the courts rejected that more extreme approach. In 2004, Lord Bingham laid down the mirror principle according to which our courts should seek to mirror the approach of the Strasbourg court. As he put it ‘no more, but certainly no less.’[21]

However, there were two ways in which gold-plating could still happen. The first arises in instances where the Strasbourg case-law is unclear. In such cases the temptation might be to go for the interpretation the domestic courts favour. However, this ignores that there is an asymmetry in the Convention system: an unsuccessful claimant can go to Strasbourg to argue that the UK courts got it wrong, but if the courts rule against the Government we cannot appeal to Strasbourg. Until this asymmetry is recognised, there is a real risk that the UK courts would find a violation even where Strasbourg might not find one. Fortunately, this problem has now ended because the UK Supreme Court recently recognised the problems causes by this asymmetry. Last year, Lord Reed writing for a unanimous court held that domestic courts should only find a violation if they could be fully confident.[22]

The second, and most pernicious, way in which gold-plating happens concerns cases where the Strasbourg Court held that there had been no violation because the matter fell within the UK’s margin of appreciation. In Re G[23] the majority of the House of Lords appeared to hold obiter that even if something fell within the UK’s margin of appreciation the domestic courts had to decide whether they or the political branches could decide what the UK position should be. If they decided it was the courts, they could then consider the compatibility of the legislation with the rights listed in Schedule 1 of the HRA. Lady Hale defended this development, which she described as ‘perhaps most significant development UK human rights jurisprudence to date’,[24] on the basis that ‘The Human Rights Act did not incorporate the Convention into UK law: it created rights in UK law which were identically worded to the rights in the Convention.’[25]

Using this doctrine, majorities of the Supreme Court held that in principle they could decide for themselves highly controversial ethical and social issues such as assisted suicide and abortion.[26] Had the courts said either that they should not find a violation because the Strasbourg Court would not find a violation or that – given the subject matter – they should respect the determination of the political branches, then they would have been able to decide the case without the resorting to their personal beliefs. But in light of the approach to those two questions that they took, they necessarily would have to answer themselves whether the laws on assisted suicide and abortion struck a fair balance. This makes the outcome of the case turn on the personal views of the judges hearing the case. As I described in my lecture at Queen Mary last year, this is a nightmare scenario.[27] If such an approach becomes common, it will be inevitable that judges ought to be appointed based on their views and not based on their legal abilities. This is something that I am keen to avoid. As Lord Reed put it in in dissent the HRA has not ‘diminished the inappropriateness, and the dangers for the courts themselves, of highly contentious issues in social and ethical policy being determined by judges’.[28]

What is, however, even more shocking about those cases is how some of the judges thought of themselves as philosopher kings who are better suited at deciding such issues than the legislature. In the assisted suicide case, one judge said that

‘there is force in the point that difficult or unpopular decisions which need to be taken, are on some occasions more easily grasped by judges than by the legislature. Although judges are not directly accountable to the electorate, there are occasions when their relative freedom from pressures of the moment enables them to take a more detached view.’[29]

The Independent Review of the Human Rights said that it was ‘troubled’ by that observation. It added that they

‘see considerable risks in such an approach, most graphically demonstrated by the difficulties that Roe v Wade has encountered in the United States – standing as a reminder of the need for our Courts to apply (as they generally do) the sure yardstick of comparative institutional competence and to not only exercise judicial restraint in contentious moral or ethical issues but also such areas as national security, diplomatic relations, resource allocation or where there is no social consensus.’[30]

I wholeheartedly agree. Such statements by judges undermine comity between the various branches of the state.

More generally, the Re G doctrine – that domestic courts can find a violation even when the matter falls within the margin of appreciation – has meant that the political branches of the UK have not got the full benefits of the post Brighton shift to subsidiarity. Recall, that post Brighton the Strasbourg Court uses the margin of appreciation to cut back on the expansive interpretation of the Convention. But the Re G doctrine means that whilst we have regained sovereignty from Strasbourg this power went not to the democratic branches but to our judges. Speaking personally, I think judicial activism is not made better if it is done by our judges than if it is done by Strasbourg.

Fortunately, the Supreme Court has recently, in the case of Elan-Cane, rejected the Re G doctrine.[31] In the hearing of Elan-Cane, Lord Sales said that if the Re G doctrine was correct, then domestic courts would just be making it up as they go along. I agree and I am therefore glad that the Supreme Court overturned Re G.

Reform on the International Stage

The Government is consulting on reforms of the Human Rights Act. That consultation closes soon. I look forward to seeing the outcome of this process and I hope that it will include a detailed response to Sir Peter Gross’s panel.

I am, of course, supportive of reform of the domestic framework but there are two important points to bear in mind. Firstly, the margin of manoeuvre for domestic reform is very limited. We will remain subject to the jurisdiction of the Strasbourg Court and the vast majority of the problems and which the government has identified are caused by the Strasbourg’s Court interpretation of the ECHR. These are, therefore, not problems that can be solved purely domestically.

Secondly, it will be crucially important to ensure that such reforms do not end up making things worse either by re-opening the door to the domestic gold-plating of the ECHR or by limiting the involvement of our courts (or of the remedies they can give) to such an extent that applicants could go directly to Strasbourg; this would remove the use of the HRA as a shield for the UK.

None of this is to say is reform is not required. On the contrary I strongly believe that reform is required but the problems we have are with some of the case-law of the Strasbourg court. These are not problems that can be solved domestically, they have to be resolved on the international level.

There are a number of ways in which such change could be done. One possibility is simply to leave the ECHR. I would also strongly oppose that move. First, it would cause a huge amount of difficulty for our relationship with the EU – particularly on law enforcement matters – and with Northern Ireland. Secondly, it could lead to other countries with a less good human rights record to also leave the ECHR. In my view such a consequence would be deeply unfortunate. Whilst I have my quibbles with the ECHR, it is quite clearly a net force for good in the world. Departure would undermine it and Britain would not be a force for good in the world.

Rather the solution I favour is to seek to change the way the Convention is applied. A two-prong strategy is required to do so. The first would be to seek to persuade the Strasbourg Court to revisit some of its more problematic judgments. The second would be to negotiate a new protocol to the Convention. This would, in essence, be a Brighton 2.0 process.

I note that the Gross Review of the HRA was critical of Strasbourg’s case-law on the extra territorial application of the ECHR. This is a concern HMG shares and I have no doubt that Sir Peter and his panel articulated that concern when they met the judges at the Strasbourg Court. His recommendation which I wholly agree with is that the UK should seek to negotiate an amendment to the Convention to address this issue.

We should pursue the same approach on other matters which we have concerns with, for example, the wide application of Articles 3 and 8 in immigration matters which Professor Finnis and Simon Murray have documented in an excellent paper for Policy Exchange last year.[32] We are by no means the only member of the Council of Europe who face such difficulties with the case-law of the Court, so I believe it ought to be possible to negotiate a new Protocol dealing with such matters. Yes, it will take time, but that is why we ought to begin now. Had I still been in office I would have used the Gross Report as a springboard for such work.

Whilst such negotiation is ongoing the UK should also be more assertive in seeking to get the Court to trim down some of its previous more expansive interpretations. In my view the most significant provision of the Human Rights Act is section 19. That provision requires the Minister introducing a Bill to Parliament to either certify that it is compatible with the ECHR or to say that such a certificate cannot be given but ask the House to nonetheless proceed. This latter approach is known as a s. 19(1)(b) statement.

The normal approach of the government is to assess compatibility with our legal obligations, including our international legal obligations, on the basis of whether there is a respectable legal argument. As the Government Legal Department guidance on legal risk puts it ‘If there is no respectable legal argument that we could put to the Court, then you will need to advise that the proposed action is unlawful.’[33] Outside of such an instance, a proposed course of action could carry a very high legal risk – even above 70% - but it would not be considered unlawful. Of course, ministers will naturally want to consider very carefully whether they want to proceed with such a high risk.

Under guidance issued by the Labour government, a minister can only provide a certificate of compatibility under s. 19(1)(a) HRA if he has legal advice placing the chances of success at not less than 50%. If the advice says that there is a 45% chance of winning, the minister will have to make a s. 19(1)(b) statement.

There is a perception that a s. 19(1)(b) statement actually means that the government believes the course of action is unlawful. This will make Parliamentary handling much harder and could also weaken our position in litigation. This is why it is incredibly rare for governments to proceed with a s. 19(1)(b) statement. In practice this means that the government is not as ambitious as it could be without in the formulation of policy. It also means that it is very rare for government to ask Parliament to pass legislation which would challenge Strasbourg judgments so as to allow the government to urge Strasbourg to depart from its case-law.

It is a real shame that the government is not doing that more because we have been successful in the strategy in the past. The Communications Bill 2003 contained a ban on political advertising on TV. Based on the case-law of the Strasbourg court such a law as most likely to be incompatible with the Convention. Nonetheless the Government wished to proceed in order to test matters at the Strasbourg court. Parliament accepted that invitation and passed the ban. When the matter when before the Grand Chamber of the Strasbourg Court in Animal Defenders International v UK they held by a 9:8 majority that notwithstanding its previous case-law the UK law did not violate Article 10.

It is unfortunate that this is the only instance where legislation was passed with the intention of testing previous case-law of the Court. This is perfectly legitimate dialogue between Parliament and the Court; the government should do more of that rather than seeking to pass purely declaratory legislation re-affirming Parliamentary Sovereignty.

In order to enable this, the Government should either get rid of the internal taboo over making a s. 19(1)(b) statement or it should change the threshold for the making of a compatibility statement.

I believe that if the government were to pursue this strategy whilst in parallel also negotiating a new protocol to the Convention, it would be successful. This, in any event, strikes me as a much more promising strategy than merely doing domestic changes. I sincerely hope that the government adopts this course of action.

[1] [2005] ECHR 681, (2006) 42 EHRR 41.

[2] http://downloads.bbc.co.uk/radio4/reith2019/Reith_2019_Sumption_lecture_3.pdf

[3] http://downloads.bbc.co.uk/radio4/reith2019/Reith_2019_Sumption_lecture_4.pdf

[4] Spano lecture https://echr.coe.int/Documents/Speech_20200220_Spano_Lecture_London_ENG.pdf para 31.

[5] Ibid para 32

[6] R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23, 29C-D.

[7] Buckland https://www.gov.uk/government/speeches/lord-chancellors-speech-law-and-politics-the-nightmare-and-the-noble-dream

[8] Vo v France [2004] ECHR 326, (2005) 40 EHRR 12; ABC v Ireland [2010] ECHR 2032, (2011) 53 EHRR 13

[9] See the examples cited by Spano at 21 and 32.

[10] Spano para 22, 32, 33.

[11] Spano at 33

[12] Carter v Canada [2015] 1 SCR 331

[13] R v Sharpe [2001] 1 SCR 45

[14] Mikael Rask Madsen, ‘Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?’ (2018) 9 Journal of International Dispute Settlement 199.

[15] Mikael Rask Madsen, ‘Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?’ (2018) 9 Journal of International Dispute Settlement 199, 222.

[16] R Spano, ‘Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487; Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18 Human Rights Law Review 473.

[17] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326987 page 16

[18] NE Simmonds, ‘CONSTITUTIONAL RIGHTS, CIVILITY AND ARTIFICE’ (2019) 78 The Cambridge Law Journal 175, 193.

[19] https://www.supremecourt.uk/docs/independent-human-rights-act-review-uksc.pdf

[20] Unuane v United Kingdom [2020] ECHR 832 at [76].

[21] R (Ullah) v Special Adjudicator [2004] UKHL 26 at [20].

[22] R (AB) v Secretary of State for Justice [2021] UKSC 28 at [57].

[23] Re G (Adoption: Unmarried Couple) [2008] UKHL 38.

[24] https://www.supremecourt.uk/docs/speech-181205.pdf page 9

[25] https://www.supremecourt.uk/docs/speech-181205.pdf page 9

[26] R (Nicklinson) v Ministry of Justice [2014] UKSC 38; Re NIHRC [2018] UKSC 27.

[27] https://www.gov.uk/government/speeches/lord-chancellors-speech-law-and-politics-the-nightmare-and-the-noble-dream

[28] Re NIHRC [2018] UKSC 27 at [344] (emphasis added).