Breaking the link with Strasbourg: Assessing the constitutional implications of a British Bill of Rights

Roger

The Conservative government is considering a British Bill of Rights that would break the formal link between British courts and the European Court of Rights. Roger Masterman argues that this could have unintended and unpredictable consequences, perhaps creating a situation as constitutionally undesirable as the problem the Conservatives are hoping to solve.

The debate surrounding the enactment of a British Bill of Rights is in part premised on the belief that the decisions of the European Court of Human Rights – given effect pursuant to s.2(1) of the Human Rights Act 1998 (HRA) – exert too great an influence over domestic courts and domestic law. Critics of the Act argue that the courts’ application of s.2(1) has rendered decisions of the Strasbourg court effectively binding in domestic proceedings, while critics of the Strasbourg court argue that its expansionary tendencies have seen the Convention rights reach far deeper into domestic affairs than was intended by its authors.

Following the election of a Conservative majority administration in 2015 the Queen’s Speech contained the promise that the new government would ‘bring forward proposals for a British Bill of Rights.’ This promise is underpinned by an election manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ and entrust human rights decision making to a ‘supreme’ domestic apex court. This short post explores the nature of the link established by the HRA, and the parallel – and more longstanding – link established by the United Kingdom’s membership of the Convention system more broadly, before considering some options for an amended relationship governed by a British Bill of Rights.

Section 2(1) of the HRA directs only that domestic courts ‘take into account’ relevant decisions of the European Court; Strasbourg decisions do not bind national courts as a matter of domestic law. Following implementation of the Act, initial judicial approaches to the Strasbourg case law erred towards application of the Convention case law in the absence of ‘special circumstances’. This line of cases gave rise to the so-called ‘mirror principle’ – elaborated in the 2004 House of Lords decision in Ullah – under which domestic courts should provide no greater, but no less, human rights protection than would be provided by the European Court of Human Rights.

More recent decisions have, however, emphasised the non-binding influence of the Strasbourg jurisprudence. UK courts have indicated that they may decline to follow Strasbourg authority where it – among other things – is outdated, misunderstands national laws, fails to consider relevant points of principle, or is inconsistent with a balance between interests that has been struck in legislation by the Westminster Parliament. Domestic courts have also stressed the ongoing ability of the common law to protect rights, as well as the readiness of UK judges to engage in ‘dialogue’ with the European court. The European Court has responded positively, showing willingness to alter the direction of its case-law following consideration of UK Supreme Court reasoning.

The idea that domestic courts and law are subservient to the whims of the European Court of Human Rights as a result of the HRA is therefore an over-simplification which ignores the far richer, and more sophisticated, interaction between domestic and European law revealed by closer analysis of the developing case law around the Act. In the light of these factors it is reasonable to conclude that a significant part of the anti-HRA and anti-Strasbourg narrative which animates current proposals for a British Bill of Rights is based on a jurisprudence – and an interpretation of s.2(1) HRA – which at best appears dated, at worst obsolete.

Of course, the UK remains obligated under international law – as a result of Article 46 of the European Convention on Human Rights (ECHR) – to ‘abide by’ decisions of the European Court to which it is a party. But the suggestion made by critics of the Court – that the Strasbourg court is, as a result, able to dictate legal change in the UK – also requires further elaboration. The principle of subsidiarity, the margin of appreciation afforded by the European Court and the fact that decisions of the Strasbourg court require implementation by national authorities in order to be translated into domestic law all temper the influence of the Court. In a frequently overlooked (perhaps ignored) passage of one of the decisions concerning prisoner voting in the United Kingdom, the European Court of Human Rights noted that ‘[t]here are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each contracting state to mould into its own democratic vision.’

In addition to this, the 2012 Brighton declaration reasserted the shared responsibility of the states party to the Convention and the Court for ‘realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity’. The text of the declaration explicitly sought to undercut suggestions that the European Court had usurped the position of national-level protections by proposing amendments to the text of the ECHR to reflect the primary role of national institutions. The UK Parliament’s Joint Committee on Human Rights noted in 2014 that the cumulative effect of these developments ‘signifies a new era in the life of the Convention, an age of subsidiarity, in which the emphasis is on States’ primary responsibility to secure the rights and freedoms set out in the Convention.’

Recent years have therefore seen a weakening of the domestic courts’ presumption in favour of applying relevant Strasbourg case-law, alongside reforms at the supra-national level designed to emphasise the primary importance of national decision-making processes to the Convention system. These developments have taken place alongside a gradual improvement in the UK’s record before the European Court of Human Rights. Conservative zeal to replace the HRA with a British Bill of Rights – breaking the linkage between domestic law and decisions of the European Court – is nonetheless undiminished.

‘Breaking the link’ between domestic law and the European Court of Human Rights through the adoption of a British Bill of Rights alone is, however, not possible. The mere enactment of a British Bill of Rights would not displace the UK’s obligations in international law under Article 46 of the Convention, nor would it eradicate the HRA jurisprudence of the last 15 years.

But in the light of the domestic courts’ steady dilution of the mirror principle – and the flexibility now recognised in the language of s.2(1) – it is also unclear how a revised equivalent of section 2 in a British Bill of Rights would substantially alter the domestic judiciary’s approach to the Convention case law. Re-emphasising, by way of a new Bill of Rights, that domestic courts are not obliged to follow the Strasbourg line would do little more than codify what has in recent years become very widely judicially-acknowledged. It is equally reasonable to suspect that a section 2 equivalent which permitted judicial recourse to a wider range of authority alongside the Convention case-law – including the decisions of other common law apex courts, for example – would also see a continued prominence afforded to the (extensive) Convention jurisprudence, given the length of time that the UK has been within the jurisdiction of the court, and the extent to which that jurisprudence is now embedded in the UK.

Assuming the UK’s continued membership of the Council of Europe, a re-worded section 2 – making the consideration of Strasbourg case law optional rather than mandatory – would also be likely to be interpreted in the light of the presumption that Parliament legislates in compliance with the UK’s Treaty obligations. Removal of the obligation to consider the Strasbourg case-law would result in the structural incoherence of any British Bill of Rights by asking the courts to give effect to the ‘Convention rights’ which would (we are told) provide its backbone, potentially without any regard to the meaning of the Convention as articulated by the Strasbourg court. Again assuming the UK’s continued membership of the Convention system, this alternative must also be accompanied by provisos relating to legal certainty and to the potential for increased adverse findings against the UK following the adoption of sub-Strasbourg levels of protection where (or if) domestic courts chose not to consider the available Convention case-law.

Complete removal of an equivalent to section 2, leaving the definition of the Bill of Rights’ protections to the discretion of domestic judges, or permitting recourse to an extensive range of comparative law sources (including the Convention case-law) would, perhaps, ‘break the link’ without necessarily rendering membership of the Convention system untenable. However, the difficulties associated with provision of a sub-Strasbourg level of protection would be amplified by the possibility of increased unpredictability and instability in the UK’s rights regime. Such an outcome is, of course, precisely what the Conservatives argued against in the debates leading up to enactment of the HRA as it would leave the domestic judiciary (in the words of Lord Kingsland) ‘cast adrift’ and ‘able to go in whatever direction they wish.’ It is unlikely that exchanging the perceived activism of the Strasbourg court for a domestic rights jurisprudence which may be both highly fluid and in danger of placing the UK increasingly at odds with Strasbourg would result in a stable and lasting settlement.

While a new equivalent to section 2(1) might deliver the symbolic change of amending or altering the link with the Convention case law, it is unclear that it would lead to significant practical change in the approach of domestic courts to the Strasbourg jurisprudence. Attempts to significantly weaken the linkage between domestic law and the Strasbourg case law – including complete removal of a s.2(1) equivalent from any British Bill of Rights – may well prompt unintended and unpredictable consequences. These could be as constitutionally undesirable as the problem to which the Conservative party is currently searching for a solution.

This post draws from the Constitution Unit Report, Supreme, Submissive or Symbiotic? British Courts and the European Court of Human Rights, published today. Read the full report here.

About the Author

Roger Masterman is a Professor of Law at Durham Law School.  His relevant publications include The United Kingdom’s Statutory Bill of Rights: Constitutional and Comparative Perspectives (ed, with Ian Leigh) (Proceedings of the British Academy, 2013) and Making Rights Real: The Human Rights Act in its First Decade (Hart, 2008) (also with Ian Leigh).  

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