Tag Archives: european court of human rights

The UK’s defiance of the European Court of Human Rights

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Veronika Fikfak argues that by amending the Illegal Migration Bill to require UK courts to ignore a potential interim measure from the European Court of Human Rights, the UK government has reached for the most drastic option, exposing its carefully fostered image of a ‘good complier’ as merely a myth. She warns against passage of the amendment, and criticises the government for taking the same path as Russia by choosing defiance over dialogue.

In late April, the government tabled a number of amendments to the Illegal Migration Bill, including an order to domestic courts to ignore a potential interim measure from the European Court of Human Rights (‘the ECtHR’) to stop someone being removed from the UK if they bring forward a legal challenge. British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights. In this blog, I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR). I show how both countries have sought out a direct conflict with the Strasbourg Court and how the UK – for the first time since joining the ECHR – is taking the same route. I also outline how far its behaviour goes from the usual ‘good complier’ image that the UK has carefully fostered.

Poland and Russia choose defiance over compliance

In international law, courts are notoriously dependent on states, and especially their executive branches, to enforce their judgments. Since the international community has no enforcement mechanism to compel states to comply with a decision of an international court, if a state were to refuse to do so voluntarily, the judgment would remain merely words on paper. Yet generally states have been reluctant to openly defy the ECtHR by refusing to enforce its judgments. Instead, negotiations, lobbying and delays are the standard techniques to avoid or minimise compliance. Even when countries adopt domestic laws that clearly contradict the ECHR (such as in the case of immigration legislation in Denmark or the UK’s recent bill), this is usually done under the cover that the state ‘seeks to clarify the content of obligations under the Convention’ or more boldly that it wishes to ‘test the limits’ of the ECHR. Once a judgment is delivered, the state promptly puts in place a process to comply with the judgment (such as in the case of Savran v Denmark). The intent to voluntarily comply with the ECHR is present for the majority of countries.

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The rule of law: what is it, and why does it matter?

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The rule of law is a fundamental principle underpinning the UK constitution. Its core principles include limits on state power, protection for fundamental rights and judicial independence. Lisa James and Jan van Zyl Smit argue that upholding the rule of law is a responsibility shared between politicians, officials and the public – with ministers and MPs having important roles to play.  

Background

The rule of law is frequently cited in political debate, and is a key topic monitored by those worried about democratic backsliding. But what is it, and why is it so important?

The rule of law is one of the fundamental principles underpinning constitutional democracies, and its importance is not seriously questioned in any modern democratic state. But like other constitutional principles, long-running debates exist about how it can most effectively be implemented.

This briefing explains the central concepts constituting the rule of law under three broad categories:

  1. Legality and legal certainty
  2. Legal equality and fundamental rights
  3. Judicial independence and access to justice

Why does the rule of law matter?

The rule of law prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded – for example, making certain that the laws made by parliament are enforced, and that fair conduct of elections can be guaranteed. More broadly, it underpins social functioning by providing fair and legitimate routes for disputes to be settled. And it supports stable economies and economic growth by upholding property rights, facilitating the elimination of corruption, and maintaining a business environment in which contracts are enforced, and international trade and investment can flourish. The rule of law alone is not sufficient to make a state democratic, but a state which does not observe it cannot be a healthy democracy.

As such, the rule of law has long been recognised as a fundamental part of the UK system. Many of its core aspects were established during the seventeenth century – particularly by the Bill of Rights 1689. Nineteenth-century scholar Albert Venn Dicey considered it, alongside parliamentary sovereignty, one of the ‘twin pillars’ of the constitution. More recently, Margaret Thatcher considered its observance central to Conservatism, arguing that ‘the institution of democracy alone is not enough. Liberty can only flourish under a rule of law’. And the 2001 Labour government recognised its importance as an existing principle in the Constitutional Reform Act 2005.

What does the rule of law cover?

Like other fundamental principles, the precise details of the rule of law are debated, but its central tenets are widely recognised. Lord (Tom) Bingham of Cornhill, a former Senior Law Lord, provided one well-known schema, on which the Venice Commission’s Rule of Law tools for assessing constitutional reforms are based. Another influential definition was given by then UN Secretary-General Kofi Annan, who defined the rule of law as:

…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

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Human rights, the judiciary and the constitution: Past and future challenges

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At the Constitution Unit’s 20th anniversary conference Dawn Oliver, Stephen Sedley and Richard Cornes assessed the Unit’s contribution to debates around human rights and the judges in the UK, and how it can feed into the challenges that lie ahead. Juliet Wells offers an overview of the session.

This is the second of a series of posts based on presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Professor Dawn Oliver took the lead in the session reflecting on the Unit’s wide-ranging contribution to political and legal discourses on human rights and the judiciary, while the respondents were Sir Stephen Sedley and Richard Cornes (who was unfortunately unable to attend on the day, but sent a statement read by the session chair James Melton). The panel therefore reflected rich expertise across public law and offered a thoroughly engaging range of perspectives on the Unit’s impact, and on the possible future direction of these vitally important areas.

Human rights figured particularly prominently in the discussion, and much was coloured by the existential threat now posed to the Human Rights Act 1998. Looking back, Dawn Oliver emphasised the prescience of Nicole Smith’s 1996 report, Human Rights Legislation, in anticipating not only that the Human Rights Act would need a ‘champion’ in future years if it was to survive in the long-term, but also that the legal implications of repealing the Act and replacing it with a ‘home-grown’ bill of rights would be profoundly complicated by the effects of having incorporated the European Convention on Human Rights into domestic law. In particular, it was identified that the long-term consequences of the relationship between Strasbourg and the domestic courts that the Act set up would generate real controversy, even as it would affirm and entrench the importance of Strasbourg jurisprudence in cases before the UK courts. Looking forward, she reflected on the possible consequences of repeal, as well as on the causes of the apparent ‘tidal wave’ of hostility towards the Act. In considering both of these issues, she suggested that a lack of respect for the rule of law, manifested most conspicuously in the shift towards the view that the courts should not be accorded any responsibility for the UK’s compliance with its international treaty obligations, was at work. This, she thought, could be traced back to the 9/11 attacks, which did much to ‘shake people into hostility’ towards the Human Rights Act. Richard Cornes built upon this by suggesting that enacting a British Bill of Rights, which would in many ways be essentially similar to the Human Rights Act, will serve only to refocus the attention of rights-sceptics onto the UK courts, and thus to intensify claims that judges are ‘self-aggrandising’.

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Imagining a British Bill of Rights

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On 30 June 2015, Martin Howe QC gave a talk at the Constitution Unit on what human rights protection in the UK might look like in the event that the Human Rights Act 1998 is repealed. It was a topic that sought to stand apart from mainstream discussions on human rights reform, by engaging directly with the possible content of a British Bill of Rights rather than concentrating on the intellectual and political legitimacy of the case for repeal. Begum Icelliler and Juliet Wells report on the event.

Much of the debate over the future of human rights legislation in the UK has been preoccupied with the merits of the cases for and against repeal – hardly surprising, given the political, constitutional and legal significance of the Human Rights Act 1998 (HRA). Nevertheless, the subject of Martin Howe’s lecture represented a welcome reorientation of that debate: by focusing on the possible content of a British Bill of Rights, it provided an opportunity to begin to examine and question the coherency of the government’s proposals.

The focal point of Howe’s proposals consisted in recasting the relationship between the UK courts and the European Court of Human Rights at Strasbourg. He suggested that the UK courts show ‘excessive deference’ towards the judgements of the Strasbourg court, and that this is to be attributed to Section 2 of the HRA, which requires UK courts to ‘take into account’ the judgements of the Strasbourg court. In his view, this produces a situation in which, de facto, UK case law is ‘overwhelmed’ by an incoming tide of European jurisprudence. This is problematic because it is not sufficiently attuned to domestic concerns. As such, his contention was that a British Bill of Rights must aim, first and foremost, to ‘sever the links’ between the UK courts and Strasbourg, by removing the Section 2 requirement.

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2. Judges and the European Convention; or we need to talk Abu Qatada!

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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.