The UK and the European Convention on Human Rights: a Very Tricky Relationship
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
Anyone who has studied some law knows that the line between law and politics is thin.
This is especially true at the level of human rights law, which is intended to prevent political decisions, even if made democratically and with majority support, from infringing the rights of minorities. And yet in the UK this idea of judges finding law to be invalid is seen as ‘little short of offensive’ to our constitutional traditions. It makes our relationship with the European Court of Human Rights (ECtHR) in Strasbourg particularly difficult at times, but it is also worth noting the unique method of integrating human rights review into our national legal system that has been adopted under the Human Rights Act. Despite the politically charged debates about deporting suspected terrorists, the UK has – correctly – started getting to grips with human rights ideals. The next big issue is the political support for the process, which is so often lacking, simply due to a lack of knowledge or understanding among the UK people due to unfortunate political point-scoring.
The European Convention on Human Rights – a very British document
The most well-known and authoritative document for human rights protection in Europe is the European Convention on Human Rights (ECHR), which is interpreted and applied by the European Court of Human Rights (ECtHR) in Strasbourg. Drafted in 1950 and entering into force in 1953, it sets out a number of rights which all persons have purely due to their status as a human being. These include the right to life (Article 2), the prohibition on torture (Art.3), right to a fair trial (Art.6), right to respect for private and family life (Art.8), freedom of association (Art.11) and many others. They are the building blocks of a valuable life without unjust interference by the state or the majority, and reflect the desire at the end of World War II to prevent the atrocities of that era from ever happening again. Whilst some states also introduced these rights into their Constitutions and gave a constitutional court the right to strike legislation down as invalid on grounds of human rights infringements (such as (West) Germany’s Grundgesetz), others kept to the ECtHR as sufficient. Both show a commitment to putting limits on what can be achieved through politics and law-making.
The Convention itself sets out broad statements of principle, such as the ‘right to life’, which were then intended to be interpreted by the Court and applied to petitions (cases) brought by individuals against their States. Development in this way is very similar to the common law tradition, which is no surprise considering that the Convention was written by British lawyers. It was even suggested by Winston Churchill. Some of the rights stem from our own constitutional traditions of both the common law and the Magna Carta, such as the right to a fair trial. So to say that the Convention is completely alien to the British tradition is wrong. What is new about it is the interpretive method of the Court, and its relationship with British notions of Parliamentary sovereignty.
The ECtHR is well-known for its sometimes controversial interpretations of the Convention. It sounds fair enough to say that the right to life means that the State cannot put you to death, but does it have a duty to take steps to prevent others killing you, or to punish those that do? Neither seems too controversial but they are beyond the obvious meanings of the Article. Further again, the Court has recently started to say that freedom of association entails the right to organise for the purposes of collective bargaining with an employer, and perhaps more importantly that the right to strike is one way to make the right to bargain effective (because an employer won’t take you seriously if you can’t go on strike) in Enerji Yapi-Yol Sen v Turkey from 2009 and Demir & Baykara v Turkey from 2008.
The Court comes to these decisions by taking a purposive approach to interpretation; that is considering the aims of the Convention when interpreting it and going beyond the formal meaning of the words in order to make sure human rights are truly protected. Further, it draws on the work of other international organisations when considering changes to its jurisprudence. The prohibition on slavery in Article 4 was considered to involve domestic servitude in Siliadin v France when the Court drew on materials from the International Labour Organisation, despite the complainant having originally entered the contract of her own free will. It is these more unexpected decisions which seem to cause problems with the UK, such as the decision in Hirst v UK (No 2); that the right to free elections under Article 3 of the First Protocol of the Convention demands that there not be a blanket ban on prisoners being able to vote. More will be said on this later, but when the text of the Convention does not seem to cause any such problems and a decision by the Court interferes with what is seen to be a central part of the legal system, the decisions are bound to be controversial if taken the wrong way. And yet, do we not want to make sure that human rights are effectively protected rather than taking a ‘bare minimum’ approach?
Parliamentary Sovereignty and the Constitutional Niceties
Perhaps part of the difficulty is not so much what the Court demands as the fact that it can demand it at all. As Lord Neuberger noted in a recent speech, the UK is not used to courts striking down legislation. This is a result of the doctrine of ‘Parliamentary sovereignty’; that any Act passed by the Queen in Parliament is valid and cannot be questioned. Under this reasoning Parliament could even legislate to make the old colonies part of the UK again, because it cannot lose any of its power – although we might have trouble enforcing that! The idea was made popular by a constitutional scholar named A.V. Dicey in his book An Introduction to the Study of the Constitution in 1889, and is still considered a central element of the UK constitution. It is not difficult to see why the idea of unelected judges striking down legislation on the grounds of incompatibility with human rights is controversial.
And yet we should remember that Parliamentary sovereignty was not the only feature of the constitution which Dicey was interested in; he also talks about the rule of law– that, at its most basic, the law should be clear and stable enough for people to live their lives in accordance with it and that it should not be enforced arbitrarily. The right to a fair trial is therefore important to Dicey as well, and indeed has been part of the common law for much longer than the ECHR has been in existence. As Lord Neuberger has commented, the UK has a different view on human rights ‘trumping’ legislation because we have neither been invaded or occupied for hundreds of years, and nor have we seen periods of the majority democratically eliminating the rights of minorities in a way which we saw on the Continent during the 1930s and 1940s. However, that doesn’t mean that this does not happen – the current persecution of the jobless and systematic cuts in benefits and legal aid go to show that the UK is not immune from the phenomenon of the ‘tyranny of the majority’. So we really should think carefully about how perfect our human rights record is based on a powerful legislator alone. Complacency is never an option, even if the UK is far from the worst violator of human rights in Europe.
And indeed the compromise found in the Human Rights Act 1998 fits these two concerns together wonderfully, and gives added legitimacy to the human rights endeavour by giving national courts an important role in the process. The HRA brings all of the Convention rights into national law, and allows courts to review UK legislation for compatibility with its provisions. Under Article 3 the court is to interpret legislation in line with Convention rights ‘[s]o far as it is possible to do so’. This can be pretty far; in Ghaidan v Godin-Mendoza  UKHL 30 some legislation which transferred a tenancy of a deceased person to their surviving spouse or long-term partner of the opposite sex, was read to include same-sex partners in order to comply with the Convention (and HRA) requirement of equal treatment and respect for family life. So if a UK court can read the legislation in a way which is compliant with human rights protections, all is well. If not however, the court issues a ‘declaration of incompatibility’ under Article 4 rather than striking down the legislation. Parliament has a pretty good track record for changing legislation in response to these sorts of decisions, which demonstrates both the ongoing commitment in Parliament to human rights protections and the international stigma of a ruling from Strasbourg should an appeal make its way there. It is a neat way of maintaining the principle of Parliamentary sovereignty whilst allowing courts to review legislation for human rights compatibility.
This allows for national application of human rights norms, which can be seen as more legitimate because it is more likely to be done in a way which recognises the national attitudes and situation. In a speech by Lord Hoffmann in 2009 he argues that the problem with the ECtHR is that the rights are easy to agree to in principle, but that each State will have its own view of what that right requires based on its own national situation. This is true to an extent, but the Court in Strasbourg already has a mechanism for cases where the last word should go to the political decision-making process, which is known as the ‘margin of appreciation’ doctrine. The Court will say that provided the State gives a minimum baseline of protection, the precise answer to which the legislature or minister comes is their own decision. Of course, there are times when the Court may say there is no margin whereas many States might think there should be, but it is inevitable that the Court will sometimes make mistakes. That shouldn’t however make us forget that it is a good system for making sure that national situations are taken into account whilst ensuring human rights are properly protected.
So the unique system within the HRA and the margin of appreciation doctrine go some way towards meeting fears of overriding the democratic process (even if for human rights that is meant to be the point!) and that decisions are being taken by those who do not understand our national context. And yet the UK has a particularly poor relationship with the Convention and Court. Looking at a couple of cases will help to explain it.
Controversies in the UK – Abu Qatada and prisoners’ voting rights
The attempt of the UK government to deport Abu Qatada back to Jordan was a lengthy process, to say the least. The concern was that if deported back to Jordan to face trial, Abu Qatada would be tortured. However, once an agreement was reached between Britain and Jordan on the procedure of the trial and on torture he was deported. Cherie Booth, a leading human rights barrister, took the right approach when she criticised the process for taking too long but noted that this is far from a usual case. The HRA and ECHR exist to do more than protect criminals or terrorists and the media outcry over this story went far further than necessary.
Similarly, the argument over prisoners’ voting rights discussed above was misreported in the press and by politicians. David Cameron may well find the idea of prisoners voting ‘sickening’, but the Court was not requiring that all prisoners have the vote. Instead, the blanket ban was being challenged. There is a genuine concern here that those who have only a short prison sentence and will be affected by the next election ought still to play a role in deciding who will run the country. This is dealt with in France by attaching an extra penalty of losing the right to vote to some particularly serious crimes, and could equally have been dealt with in the UK with such guidelines or a rule that those with sentences under (say) 5 years should keep the right to vote. The ECtHR isn’t talking about murderers or rapists, but those who have committed fraud, or another relatively minor crime. Can we really say they are no longer part of society?
Both of these cases are examples where the Strasbourg Court showed a concern for the human rights of relatively unpopular minorities, and so political point-scoring by opposing Strasbourg was easier than presenting the full story in a calm way. It is very easy to play the ‘patriot’ card, or the ‘tough on crime’ card, but these decisions exist for the times when the State is over-punishing or is risking the right to a fair trial. They may not be popular decisions but in neither situation was the ECtHR trying to completely overhaul the UK’s system. It was just asking for checks that a fair trial would take place in Jordan, and consideration of the issue of voting rights rather than a blanket ban. Both seem much more sensible presented that way.
The EU and our international standing
The Conservatives have suggested that there will soon be proposals brought forward for a new relationship with Strasbourg and more supremacy to UK judges. However, membership of the Council of Europe (the international body of the ECHR, among other things) is a condition of membership of the European Union. The two questions of EU and Council of Europe membership go hand in hand, and with a referendum on EU membership promised for after the next election if the Conservatives win we should not jump the gun by forcing ourselves out now.
Secondly, it is not likely that the content of a British Bill of Rights would be much different from the ECHR, though there might be different interpretations of some articles. We are actually pretty good at respecting our current set of human rights, with one of the lowest rates of breaches among the 47 Members. It seems as though we actually do quite well by the current standards; something we often forget!
It is also worth thinking about our international standing if the UK undoes its ratification of the Convention. The ECHR is seen as a central legal pillar in the EU, geographic Europe and worldwide. Whatever might be enacted in its place, it would not be the set of rights which everyone else sees as central, with the same overseeing court which so many other States submit to. This would be seen either as arrogance (the UK knows best) or a lack of commitment to human rights protections. Either way, we should think very carefully before the country whose lawyers wrote the Convention abandons it.
It is difficult to argue with the right to life or the right to privacy in the abstract. However, this consensus on an abstract level has to continue when we get to specifics under an instrument like the ECHR. The Human Rights Act really does go some distance towards ‘bringing rights home’, and in fact two of the most controversial human rights clashes with Strasbourg in recent years were only made so controversial because of the political spin put upon them. It is perhaps time for the UK to remember that the ECHR was created because we cannot trust States, or the majority, to protect the rights and liberties we have always held to be important. It is also important to remember that to prevent human rights abuses abroad one must always start with a good example at home.
Liberty, ‘Human Rights Act myths‘ (accessed 10/03/2014)