This post is part two of a dialogue with Brian Walker on the Human Rights Act and the European Court of Human Rights (ECtHR). Brian raises three points that deserve close attention. Firstly, what is the status of the relationship between the ECtHR and Britain? Secondly, why do cases take so very long to get to Strasbourg? Thirdly, what can be done when British political and moral norms conflict substantially with the decisions made by the ECtHR – can Britain ignore Strasbourg? I will look at this problem through the prism of the Abu Qatada case in particular.

1. What is the status of the European Court of Human Rights in Britain?

The European Convention on Human Rights is an international treaty signed in 1950 which contains a bill of rights (such as the right to life and the right to a fair trial) that each Government that ratifies the Convention promises to protect and to respect. The role of the ECtHR is to enforce the Convention. Individuals who feel that their Convention rights have been violated by a signatory state may take a case to the ECtHR. None of this has anything to do with the EU, although the two are very often confused which leads to the Convention system suffering by association with the desperately bad press the EU gets in Britain.

Decisions by international courts such as the ECtHR bind Britain in international law but not in domestic law and it is possible for the two systems to conflict. If there is a conflict, international law requires that Britain change its domestic law but it is for individual countries to choose how they resolve these conflicts. Because of the way our system of government works, it is for the Government and Parliament to solve the problem – generally through legislation. The role of the courts in our system is simply to obey whatever legislation is passed by Parliament. As a result British courts are not obliged to follow the decisions of the ECtHR directly.

There is of course a ‘but’. The Human Rights Act (HRA) 1998 changed this situation somewhat by incorporating the European Convention into British law. Parliament enacted the HRA to allow people in Britain to make rights-based arguments in Britain. For the first time British domestic courts were empowered to take account of the human rights in the Convention in their decisions. I said above that it is for individual countries to choose how to apply international law in their own legal systems; the HRA was the means chosen by Britain to do so, an independent decision made by Parliament. Prior to the HRA, British cases with human rights elements tended to go to the Court in much larger volumes than from other countries because Britain had no domestic human rights legislation and so the courts could not protect rights as such directly. With the HRA human rights became domesticated: the bill of rights contained in the Convention is now also a bill of rights in domestic British law. We can truthfully, if a bit mischievously in light of current debate, call it a British Bill of Rights (one deserving of capitalisation).

The HRA states (in section 2(1)) that British courts are obliged to ‘take into account’ decisions made by the ECtHR. What does this mean and how can two of our most senior judges disagree about it? This goes back in part to the fact that we are dealing with two independent systems of law – international law and British law – that we are trying to fit together. From the perspective of international law decisions of the ECtHR bear directly upon the country to which they are addressed. So if the court decides that Italy must allow prisoners to vote the judgment of the court is addressed to Italy and no one else. Further, and unlike most British domestic courts, the ECtHR is not obliged to follow its own precedent. It can and occasionally does reverse itself. So a judgment that is made against Italy in one case might not necessarily be made against Britain in similar circumstances. An interesting feature of the ECtHR’s approach is that it applies what it calls a ‘margin of appreciation’ and a doctrine of proportionality in its decisions. It acknowledges that culture and moral norms are not quite the same in all the countries that are party to the Convention and that the way in which human rights are applied and realised may reasonably vary from country to country.

Against these facts we can set the practical reality that the ECtHR generally does follow its own precedents and so previous decisions of the ECtHR are strongly persuasive for all signatories to the Convention. Put simply if the Court decides in a case against Italy that prisoners should have the vote, it is probably going to decide the same in a case involving Britain. So there are good practical reasons to comply with judgments of the ECtHR even if they are not specifically addressed to Britain.

Here we return to British domestic law and the HRA and we can, I hope, begin to see an answer – or at least why the question does not admit of a straightforward answer. When Brian refers to Lord Phillips and Lord Judge disagreeing in front of the House of Lords Constitution Committee about whether British courts must follow the ECtHR they are really taking slightly different views about what is important. When Lord Phillips points out that, in the end Strasbourg ‘will win’ I take him to be making the practical and prudential point that the British courts should follow the case law of the ECtHR because if they don’t there will ultimately be an appeal by a disappointed litigant to Strasbourg which Britain is likely to lose, leading to Britain being obliged (in international law) to fix the problem (no doubt after a wasteful and rather expensive delay of several years). He is not saying that the HRA obliges British courts to follow the ECtHR as a matter of law, merely that it is better all-round if they generally do so. When Lord Judge says that once the British courts have taken account of the decisions of the ECtHR they are not actually obliged to follow them he is stating the legal position: section 2(1) of the HRA obliges British courts simply to take account of these decisions. Neither British law nor international law requires the courts to go any further (remember that a decision that is not directly addressed to the UK does not directly bind the UK).

So what this boils down to is that following the ECtHR is not simply a legal question. It is also a policy question and one that does not admit of easy resolution. What is not a matter of doubt is that the United Kingdom has a duty in international law to comply with the European Convention and decisions of the ECtHR that are addressed directly to it. To say, as the Lord Chancellor did on 22 November before the Constitutional Committee, that parliamentary sovereignty supersedes the rulings of the ECtHR is incorrect. We are dealing with two separate legal systems. The fact that Parliament may choose to disobey the international legal obligation created by an ECtHR ruling does not extinguish that obligation.

2. Why do cases take so long to get to Strasbourg?

The answer to the first question was complex. This question is mercifully straightforward. Strasbourg takes appeals from 47 different countries and has a backlog of 150,000 applications (half from just four countries: Russia, Turkey, Italy and Romania). The ECtHR has become very popular. Between 1955 and 1998 it received just 45,000 applications but it received 64,500 in 2011 alone. The result is that it can take years to get a decision from the ECtHR. Delay does not just upset politicians – judges are often just as critical of the way the Court processes its caseload.

This problem could be resolved by dealing with the way the Court processes its cases. In April the Council of Europe Conference agreed the Brighton Declaration (partly as a result of significant lobbying from the UK) in which members of the Council agreed to amend the Convention to ensure that the ECtHR deals only with serious violations of human rights rather than trivial ones and to recognise the principles of subsidiarity and margin of appreciation within the text of the Convention.

The agreement made in Brighton, assuming it is implemented, will still not completely eliminate delay. Delay also arises because of the way cases get to the ECtHR in the first place. Applicants must exhaust all remedies in their home country before they can file an appeal to Strasbourg. In Britain this will generally mean that a litigant will have to go all the way the Supreme Court – and lose – before he or she can go to the ECtHR. (Although not always: if the litigant can show that because of settled law they have no prospect of success at home this may not be required.) The legal process in Britain can take a long time, although there are procedures for fast-tracking urgent cases, so this can add to the delay taken to get to a final resolution from Strasbourg.

Finally, delay can be caused by changes in circumstances. In January in the Abu Qatada case (formally Othman v. UK, as Abu Qatada’s real name is Omar Othman), the ECtHR decided that the UK Government could not deport Qatada to Jordan for trial because there was a risk that evidence to be used in his trial was obtained by torture, which would violate his right to a fair trial. Following Othman the Home Secretary obtained assurances from Jordan regarding the trial process and then ordered that Qatada be deported. Qatada’s lawyers then launched an appeal against this last decision to extradite him, which was granted on the basis that the assurances from Jordan were not good enough. Put simply, the facts changed. While it is possible to limit the length of legal proceedings and the number of appeals that may be made on the basis of the same set of facts, where there is a significant change of circumstances it is hard to see how the right to appeal could be curtailed without fundamentally affecting the right to a legal hearing.

3. Can Britain ignore Strasbourg? And would a British Bill of Rights Make any Difference?

No and no. Or at least, not without breaking the law.

Staying with Abu Qatada, the most recent decision affecting his case was made by the British Special Immigration Appeals Commission (SIAC). SIAC was following the Othman decision, but it was doing so in respect of a principle that is so central to modern human rights law that no plausible bill of rights could fail to enshrine it: the prohibition on torture. Othman followed from an older ECtHR decision called Chahal, in which the Court held that Britain couldn’t deport Mr. Chahal to India because there was a real risk that he would be subjected to torture if they did so.

The right not to be subjected to torture is one of the few absolute human rights (perhaps the only absolute right) and it follows from a generally accepted belief that there can be no legitimate reason for torturing anyone. If there can be no legitimate justification for torture it follows that evidence obtained by torture must be obtained illegitimately and so any evidence obtained through torture must be excluded. If the Human Rights Act were replaced with a British Bill of Rights it would also have to respect this principle. Any bill of rights that did not would – and should – be a laughing stock.

If the new bill of rights did not respect these principles, British judges could no longer order British ministers to comply with human rights but the United Kingdom would still be obliged in international law to comply with decisions made against it by the ECtHR. It is true that it might not be easy to force the UK to comply with its obligations if the Government set its face against doing so. But this is not the same as saying that the legal obligation would cease to exist. The Government would find itself under domestic and international political pressure to comply and the Government did indeed comply with the original Chahal case and all the other judgments made against it by the ECtHR prior to the enactment of the HRA.

4. What happens now?

The Qatada case has dragged on for a very long time and there are two ways of looking at the problem. The first is that the courts, including the ECtHR, are repeatedly frustrating the will of the UK Government to remove a dangerous terrorist from Britain. The other way of looking at it is that the Government has quixotically pursued extradition to Jordan as a solution again and again in the face of objections that the trial process in Jordan is simply unsafe because of the use of torture. Previously it pursued internment until the House of Lords ruled that that was also unacceptable. There is another option: try him in Britain. The things of which Abu Qatada are accused by the Government (involvement in and direction of international terrorism) are certainly crimes in Britain. Allegations in the public domain suggest that there is the possibility that he could be charged with conspiracy to commit some fairly serious crimes, if nothing else. If he were convicted of them there would be no human rights obstacle to his being imprisoned for a very long time, perhaps for life. The difficulty appears to be that some of the evidence is secret and either too weak to secure a conviction or too sensitive to be made public (or both). Without being privy to the information it is impossible to know whether the Government’s claim is legitimate: we cannot know whether the judgment that prosecution is impossible is reasonable, although a succession of Home Secretaries and others seem to have been convinced that it is. But the security services have not historically had these kinds of difficulties in prosecuting Northern Irish terrorism. Indeed as the layers of secrecy have gradually been peeled away from the awful decades of conflict in Northern Ireland one thing that has become apparent is just how thoroughly the various terrorist groups were riddled with informers and spies seeking intelligence and evidence for prosecution. This appears to have continued with the dissident remnants of those organisations. Why can he not be prosecuted for terrorism in Britain?

But we need not go even that far. Has Qatada never been caught speeding, or jaywalking, or even stealing a library book? Famously, the US authorities eventually caught up with Al Capone by laying charges of tax evasion against him. Why has Britain not tried something similar against such an allegedly dangerous man? Put another way, are the ECtHR and – to a lesser extent – the British legal system taking the blame for the failure by the Government to deal sensibly with the problem posed by Qatada and a small group of dangerous men in a similar position?

In the last few days the Home Secretary has lodged an appeal against SIAC’s decision to stop Qatada’s extradition. Rightly or wrongly the ball is now back with the courts and, as Brian suggests, they will need to tread very carefully.