Attorney General: London Common Law and Commercial Bar Lecture 26 January 2012
Speech on understanding the Human Rights Act and European Convention on Human Rights
It is a great pleasure to have been invited here this evening to address such a learned audience. I would like firstly to thank Michael Kent, for inviting me to do so.
Although the thrust of my lecture is about human rights, I thought it might be helpful to start by explaining something about my role as a Law Officer and how human rights law impacts on and forms a key part of my work. I want then to turn to consider what, from my perspective, are the key challenges facing the Human Rights Act and European Convention on Human Rights and how meeting these challenges requires an understanding of the proper relationship between Strasbourg, our domestic courts and Parliament and their reconciliation.
Role of the Law Officers
So I will turn first to the role of the Law Officers. I as Attorney and the Solicitor General as my deputy have three main roles: as Chief Legal Advisers to the Government, as the Government Ministers responsible for the ‘Law Officers Departments’ and finally as guardians of certain public interest functions which include, for example, our role as protectors of charity and of the administration of justice-something which has just lead me to prosecute a juror for contempt of court.
In terms of the ‘Law Officers’ Departments’, I am responsible for the superintendence of the Crown Prosecution Service, the Serious Fraud Office and Her Majesty’s Crown Prosecution Service Inspectorate. This superintendence role involves supporting the independence of the prosecutors in taking prosecution decisions and means that l am answerable to Parliament for these prosecuting bodies and for negotiating their budgets.
In carrying out my role as Chief Legal Adviser to the Government, I have a special relationship with the Legal Advisers to Government departments which entitles them to consult me on any matter. Indeed, the Ministerial Code sometimes requires it. Many of the difficult legal issues that policy development gives rise to never come to the Attorney General and the lawyers of the Government Legal Service could be described as the day to day guardians of legality, propriety and indeed, human rights. However, Government lawyers do consult us on legal issues which are particularly difficult or sensitive legally or politically and, often, those issues may involve human rights. The fact that Government lawyers can come to us for advice means that they can discharge a role in their respective departments that reflects ours at their head, not as politicians of course, but as Civil Servants who are also independent professionals.
From this position they advise Ministers on the legality of what they want to do, working up solutions when what is proposed collides with the constraints imposed by, say, the Human Rights Act, or EU law.
Unlike civil servants, the Law Officers are also of course politicians and members of the Government. Although I am not a member of Cabinet, I will attend when my advice is required or when matters within my responsibility come up for consideration. I will also attend Cabinet committees if my presence is needed in order to give legal advice or to understand policy issues on which my advice is likely to be required.
The role and human rights
Although as a matter of Convention, we do not disclose whether the Law Officers have advised on a particular issue or not, it is clear from the fact that the Human Rights Act 1998 has implications for a whole range of government policies that human rights issues are never far from my mind or that of government lawyers more generally. Indeed, it can be no secret that I am regularly asked to advise on whether particular policy proposals are compatible with one Convention right or another.
In addition, the Law Officers have a specific role in ensuring that human rights implications of proposed primary legislation are given careful consideration. This role is not always well known by those outside Government so I will explain it a little further.
As Law Officers, both I and the Advocate General for Scotland, the Liberal Democrat peer Jim Wallace, are members of the Cabinet Committee on Parliamentary Business and Legislation. The main function of this Committee is to consider the readiness of Government Bills and to authorise their introduction.
As a part of this process every department is required to produce a memorandum containing a full and frank legal analysis of the strengths and weaknesses of the human rights issues raised in the Bill and an indication of whether the Minister in charge of the Bill can make a statement that in his or her view the provisions of the Bill are compatible with the Convention rights as required by section 19 of the Human Rights Act.
Either the Solicitor General or I read all these memoranda to satisfy ourselves and provide assurance to the Committee that the department has adequately demonstrated its human rights reasoning. This oversight role has given us a very good insight into how the Human Right Act operates and, indeed, shapes Government policy before it becomes law.
In this respect, I think it is worth pausing here to consider how the Human Rights Act has affected the basic model of English law. According to Dicey, the Vinerian Professor of English Law at Oxford in the late 19th century, a key tenet of the rule of law is that no man is punishable or can suffer any detriment save for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In other words, a person can do anything he wants as long as it is not against the law. Although this still holds true, section 6 of the Human Rights Act makes it unlawful for public authorities to act in a way which is incompatible with a Convention right.
The types of judgment that have to be made in determining whether a particular act is compatible with a Convention right may make it very difficult to explain clearly what a public authority can do and what it can’t. Sometimes it will be obvious that the European Convention prevents a particular approach. But quite often the judgment will be fact specific, for example, in respect of a decision about whether to disclose personal information to another body or individual. It may also involve the law and lawyers entering territory which might previously have been left entirely to Politicians in the executive and to Parliament.
Take the case of Mr Gleaves and Mr Grant, two prisoners who brought test cases against the Ministry of Justice, on which the High Court gave judgment last month.
The claimants alleged that the fact that they were housed in a single cell with no in-cell sanitation was a breach of their Article 3 and Article 8 Convention rights.
An electronic system was in operation to enable them to leave their cell to access a lavatory. However, this did not always enable prisoners to leave their cells promptly for this purpose. Mr Justice Hickinbottom, who decided the claims, accepted that on occasion a prisoner might be forced to rely on the bucket in their cell. The question was whether that amounted to inhuman and degrading treatment contrary to Article 3 or a breach of their right to respect for their private life contrary to Article 8. Mr Justice Hickinbottom decided that it did not. However, if he had found otherwise, the prison service could have been forced to spend significant amounts of money building new cells and modifying old ones given that each cell would not have been big enough to house a lavatory. This would no doubt have been at the expense of other worthy projects and programmes.
I don’t seek to suggest that prison accommodation should not be required to comply with some basic standards or that the court should not have had jurisdiction to decide this case, but I simply seek to highlight that the nature of the judgments which must be made in some human rights cases can be intensely political and may stray into what Lord Justice Laws has previously described as areas of ‘macro-policy’.
Lord Sumption in his impressive F.A. Mann Lecture last year described the way in which the Human Rights Act ‘has significantly shifted the boundaries between political and legal decision-making.’ He explained that when judges make decisions involving qualified Convention rights, the determinations almost always involve striking a difficult balance between competing public interests, which is an inherently political exercise.
Although by enacting the Human Rights Act Parliament has sanctioned the courts to make these decisions, he concludes that there is no denying that ‘it removes important areas of policy from the domain of democratic accountability.’
Equally, there is no doubt that there are many examples of the Human Rights Act helping to improve the way that public authorities make decisions. For example, few could disagree with the outcomes of cases such as R v East Sussex County Council which overturned a ban on manual lifting of severely disabled patients which had been imposed solely with regard to rules for the health and safety of carers and without sufficient thought as to its impact on the disabled people they were serving. The court did not seek to interfere with the balance the local authority might ultimately decide to strike between these competing interests but it did ensure that both interests were properly taken into account by the local authority in formulating its policy.
It is true that in judicial review cases the courts may also become involved in areas of macro-policy but the common law limits of judicial review mean that there is at least some recognition that it is for the policy maker to make the initial decision. In areas where the law provides the policy maker with a discretion, the elected decision maker may opt for one of a range of permissible approaches and the common law principles of judicial review recognise that their choice should normally be respected by the courts in a democratic state. The Human Rights Act does not, on its face, recognise the same limitations.
It seems to me that this explains to a large extent why human rights law remains almost constantly in the news. Almost every week sees a new judgment from the Supreme Court or a decision of the European Court of Human Rights in Strasbourg. There are frequent calls to scrap the Convention and there is a current debate about the repeal of the Human Rights Act.
There is also a great deal of polemic on how the Convention works in practice to affect our lives -a subject that appears to often generate rather more heat than light.
In order to try and introduce a little more light than heat the Government has taken two initiatives. On 7 November the United Kingdom took over the Chairmanship of the Committee of Ministers, the governing body of the Council of Europe which is the international organisation through which the Convention was adopted. The UK Chairmanship is a once in a generation opportunity to drive forward reform of the European Court of Human Rights. We want to help the court deal with its backlog of cases to ensure that serious breaches of Convention rights are handled speedily and to help the Court to focus on those cases that genuinely need to be addressed at Council of Europe level.
Furthermore in March the Government established a Commission to investigate the creation of a UK Bill of Rights. The Commission on a UK Bill of Rights provides us with the first proper opportunity since the passage of the Human Rights Act to consider how we should best enshrine the Convention rights in UK law and follows much academic debate on the subject which I shall touch on later in this talk.
Court reform
In addressing the topic of court reform in Strasbourg I want to stress at the outset that there is no question of us withdrawing from the European Convention of Human Rights or the jurisdiction of the European Court of Human Rights as some critics of the Convention have advocated. The Government believes that both the court and the Convention are an essential part of the system for protecting human rights across Europe.
Reform however is necessary. At present the court is drowning under the volume of work that its presence has generated. To get an idea of the scale of this, in the first 40 years of its existence, 45,000 cases were presented to the court. This contrasts with last year when 61,300 applications were made to it. This has led to a huge backlog of cases, amounting to more than 160,000 at its peak. And although steps have been taken to reduce that backlog by extra resources to filter out the hopeless cases it means that those remaining will need more detailed scrutiny and very lengthy time delays still exist. The latest figures from the Court Registry tell us that the average waiting time between a case being received by the court and it being communicated to the relevant Government is 37 months. On average it then takes a further 17 months to get judgment in Committee cases and this figure rises to 25 months in Chamber cases. The Court has 3,100 applications pending that were lodged before 2005, 400 of which have yet to be communicated to the relevant Government.
Not surprisingly therefore the United Kingdom is not alone in its concern. There is unanimous agreement across all the 47 member states that reform is needed and the process is already underway and we want to build on the measures adopted by the Council of Europe at the Interlaken and Izmir Conferences in the past two years during our Chairmanship of the Committee of Ministers.
Following interim advice from the Commission on a UK Bill of Rights, we have now made clear what our objectives during the Chairmanship will be. In particular, we want to help the Court deal with the backlog of applications. The Court has already made significant progress by developing new, more efficient working methods and prioritising cases more effectively. But further improvements are needed and that’s what we want to support. We are keen to look again at the admissibility criteria to ensure that the Court can focus on those serious cases which genuinely need to be dealt with at supra national level.
We also want to improve the procedures for the selection of well-qualified judges to the Court.
Our period of chairmanship only lasts for 6 months and therefore these are certainly ambitious objectives. However, the prize is an important one – a court which is able to focus on handling the most important cases more quickly, efficiently and transparently. It is therefore my sincere hope that with the help and assistance of the other 47 member states we will be successful in delivering the reforms the Court so badly needs. I and my ministerial colleagues have been investing a lot of effort consulting and lobbying other member states. The Prime Minister made a speech to the Parliamentary Assembly of the Council of Europe yesterday, as I did earlier in the summer.
The Foreign Secretary, William Hague, the Minister of Europe, David Lidington, and the Lord Chancellor, Ken Clarke, have both been out to Strasbourg and to various European capitals to explain and build support for the proposals along with other Ministers. We are also engaging with the technical working groups at official level on the proposals. We have made some progress but there is a long way to go. But we are ready to put in the necessary effort.
The reforms I have mentioned so far are primarily procedural. But I want to say more about one other idea which I believe can both help reduce the backlog of cases and will also allow the Court to assume its proper role as the guardian of the Convention – that is, strengthening the principle of subsidiarity.
Subsidiarity has a specific meaning in the context of the Convention. The principle of subsidiarity is that the national authorities of Member States (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level and the European Court of Human Rights has a subsidiary role in supervising the protection of Convention rights. The principle of subsidiarity recognises the fact that, as I was saying earlier, the Court is at times having to make intensely political judgments and the balance to be struck between competing interests should often be decided at a local level. As Lord Sumption has said ‘rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community.’
It helps to ensure that proper account is being taken of democratic decisions by national parliaments – a concern which has arisen most forcefully in the prisoner voting debate - and that the views of the national courts who will have considered the issue prior to it reaching Strasbourg are also accorded due respect.
This principle of subsidiarity is well established and has been recognised by the Council of Europe in both the Interlaken and Izmir Declarations on reform of the Court as well as in the case-law of the Strasbourg court.
The United Kingdom agrees that this should be the guiding principle governing the relationship between our national courts and the European Court of Human Rights. Of course the United Kingdom must still be subject to the judgments of the Strasbourg Court but the Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention.
One way of strengthening the principle of subsidiarity is for the Court to afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention.
During our Chairmanship we will work with Member States of the Council of Europe to see how this agreed guiding principle of subsidiary can be strengthened. However, it is important to note that the corollary of this principle is that there should be effective systems in place to protect the Convention rights at the national level - which neatly leads me on to the second challenge I said was facing us today.
Human Rights Act
How best should we enshrine the Convention into the law of the United Kingdom? This is the question the Government has asked of the Commission on a UK Bill of Rights.
To be precise the terms of reference are to:
… investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.
The Commission is due to report by the end of the year and I am looking forward to its conclusions and recommendations. However, we should not underestimate the difficulty of the task facing the Commission and I think it would be helpful to set out some thoughts about the Human Rights Act and what it means for the relationship between our domestic courts and Parliament and the domestic courts and Strasbourg.
First, we need to be clear about what the Human Rights Act does. The Human Rights Act is not synonymous with the Convention. Nor is it some sacred tablet of stone. It is simply the method by which the United Kingdom has chosen to incorporate the Convention into our domestic law. The Government has asked the Commission to investigate the case for replacing the Act with a UK Bill of Rights which will ensure that the Convention rights continue to be enshrined in UK law.
The Government is not intending to limit or erode the application of any of the rights and freedoms in the Convention. However, as with the question of court reform, deciding how best to incorporate the Convention into UK law requires an understanding of the nature of some of the judgments which have to be made in human rights cases and the fact that where there is a balance to be struck between competing rights, there may be more than one permissible answer.
This was recently recognised by the Court of Appeal in the case of PE (Peru) v the Home Office where the Court accepted that whether a person’s deportation was proportionate or disproportionate for the purposes of Article 8 was a question of judgment and that the courts and tribunals were essentially carrying out an evaluative exercise. In some deportation cases, the only permissible finding would be that deportation was proportionate. In others, the only option would be a finding that it was disproportionate. However, there would be cases where either finding was permissible and could not be appealed against. In other words, the court considered that it should defer to the views of the first tier tribunal when it came to look at these cases on appeal.
Jonathan Sumption appeared to go further than this in his F.A. Mann lecture when he said that there needs to be some separation between the determination of a policy’s lawfulness and an assessment of its merits.
In his view, this requires a measure of restraint on the part of the judges which involves deference not to ministers but ‘to the constitutional separation of powers which has made the minister the decision-maker’ and not the judge.
The principle of deference supports the Home Secretary’s decision to give a greater steer to judges on where Parliament considers the balance should be struck in cases involving the deportation of foreign criminals where Article 8 of the Convention protects the right to a private and family life but may be moderated in the public interest. The Government is entitled to say that the domestic courts have placed too much weight on the family rights of foreign criminals and to redress the balance in the Immigration Rules by ensuring that they more fully reflect the compelling public interest in the maintenance of an effective immigration control in respect of those who have committed criminal offences.
Parliament, before whom these changes to the Immigration Rules will be laid, is best placed to decide on difficult policy questions such as where the balance should be struck in relation to the deportation of foreign criminals. In changing the rules we will respect the jurisprudence of the Strasbourg court and reflect the margin of appreciation that the European Court of Human Rights has correctly afforded to Member States in coming to such decisions.
Indeed, my work as a Law Officer has shown me how difficult policy-making has become. Courts are increasingly being asked to make judgments under the Human Rights Act which would previously have been considered to be questions of pure policy and it can be very difficult for the policy maker to second guess whether a particular policy will, in the end, be found to be compatible with the Convention. This level of uncertainty can, as we all know, lead to significant amounts of litigation, sometimes at great cost to the public purse.
To deal with this problem, I have explained how we need to clarify how the Strasbourg Courts should view the judgments of our domestic courts and how the domestic courts should take into account the balance struck by Parliament and Ministers on human rights issues. Before I end, I also want to say something about the way in which the domestic courts may view the judgments coming down from Strasbourg.
Section 2 provides that national courts determining a question which has arisen in connection with a Convention right must take into account any judgment of the European Court of Human Rights in so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen.
Although as a matter of international law, Strasbourg judgments against the UK are binding on us, domestically British courts are not bound to follow the jurisprudence of the Strasbourg court when considering other cases. They must take it into account. But what does that mean in practical terms? We must turn to Lord Bingham’s judgment in Ullah v Special Adjudicator in 2004 and I quote:
“the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court … This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court.
From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
Interestingly however, Lord Irvine of Lairg made it very clear last month in his lecture ‘A British Interpretation of Convention Rights’, that he did not consider that this was the intention of Parliament when it enacted the Human Rights Act. In his view, section 2 means that the courts must take account of the Strasbourg jurisprudence but they are not bound by it. Indeed, an amendment to the Human Rights Act when it was going through Parliament to the effect that the courts were bound by the Strasbourg case law was expressly rejected by Parliament as I well remember from my participation in the debates at the time.
An interpretation of section 2 which recognises that the national courts are not always bound by Strasbourg jurisprudence and may disagree with Strasbourg in at least some circumstances is necessary if we are to fully take into account the principle of subsidiarity.
The key question is whether domestic courts - and the Supreme Court in particular – should be allowed to differ from Strasbourg where they consider that they are better placed to understand the impact of Convention rights in the UK and thus enter into a productive dialogue with the Strasbourg court?
This issue has been the subject of growing discussion amongst the judiciary and academics. Lord Hoffman raised it in his lecture to the Judicial Studies Board in March 2009 as did Lady Justice Arden in her Thomas More lecture here two years ago. The Lord Chief Justice also discussed the point in his evidence to the Lords Constitutional Committee last year. In the case of Horncastle, the Supreme Court considered whether legislation which allowed for the admission of evidence of an absent witness at a criminal trial will result in an unfair trial.
In doing so the Court had, by virtue of section 2 of the Human Rights Act, to take into account the Strasbourg decision in Al-Khawaja and Tahery v United Kingdom which had found that convictions based solely or decisively on hearsay evidence of an absent witness, whom the accused had no opportunity to examine, were incompatible with the right to a fair trial under Article 6 of the Convention. However, the Supreme Court declined to follow the Strasbourg decision, on this rare occasion, as it had concerns about whether the European Court had sufficiently appreciated or accommodated particular aspects of the UK trial process. The Supreme Court was entering precisely into a valuable dialogue with Strasbourg where the Grand Chamber has now reconsidered the matter, deciding that a conviction based solely or decisively on hearsay evidence of an absent witness would not automatically breach Article 6.
Judge Bratza, in his concurring opinion in the Grand Chamber, described this as ‘a good example of the judicial dialogue between national courts and the European Court on the application of the Convention’. Whilst the Grand Chamber was not able to accept all the criticism of the European Court’s previous judgment, in his view, it has now addressed what appears to be one of the central problems identified by the Supreme Court, namely the inflexible application of the ‘sole or decisive test’. He explains that the Grand Chamber not only took into account the views of the Supreme Court but also re-examined the safeguards in the relevant legislation which are designed to ensure the fairness of the criminal trial.
We would therefore benefit from better definition of the very important relationship between the national courts and Strasbourg. Had we wished, in 1998 the UK could have made it clear that the national courts must follow the jurisprudence of the international court and allowed the courts to strike down primary legislation. We specifically chose not to do so.
If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court here or in another member state to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.
This it seems to me is an area which needs further thought and I will not attempt to provide a complete solution here tonight. It is for the Commission to consider the position and reach its conclusions first.
Whatever one thinks about the success or failure of the Act in incorporating the Convention into UK law, it must be recognised that it is a complex piece of legislation. This complexity arises from its attempt to deal with a number of fundamental constitutional relationships – between the national courts and Strasbourg; between the national courts and Parliament as well as the relationship between the executive and Parliament.
There is I believe a unique opportunity during the time of our Chairmanship of the Committee of Ministers and with the Commission for a UK Bill of Rights now considering these issues, for us to ensure that these relationships are examined and perhaps better defined.
I hope we will be able to have a reasoned and accurate debate about the challenges posed by the European Court of Human Rights and the operation of the Human Rights Act to our democratic institutions as well as a proper appreciation and recognition of its undoubted benefits.
It is important also that we include the general public in this debate to ensure that they too understand the benefits of the Convention and its influence on their lives. The public do not always see the way in which human rights help to ensure structure and rigour in policy making. For example, the Human Rights Act may lead a lawyer in Government to ask an official to gather more evidence for the proposed policy approach or to give a person the opportunity to be heard before a particular decision is made. It is this aspect of the Human Rights Act which may largely go unnoticed by the public but which can bring real benefits to them.
Acceptance of human rights will always be controversial because of the fact that certain fundamental rights are universal and should apply to everyone, whatever they may have done and whether or not they themselves have shown respect for the human rights of others. Nevertheless, there can be debate about how far those fundamental rights extend and in setting those limits we must properly recognise the role of Parliament and elected politicians as well as the courts.
If we do that, I am confident that we will be able to achieve consensus both at home and throughout Europe on a flexible framework of human rights which can meet the challenges ahead and continue the essential promotion of human rights for both ourselves and future generations.