Roger Masterman (Professor of Law, Durham Law School) written evidence

The Influence of Strasbourg and case for a British Bill of Rights

1.    This submission responds to question of whether the Human Rights Act 1998 should be maintained.108 It suggests: (i) that the case against the Human Rights Act 1998 based on the ‘excessive’ influence of the European Court of Human Rights is deficient and does not reflect the development of jurisprudence domestically or at Strasbourg; and (ii) that ‘breaking the link’ with Strasbourg is either unnecessary (in the light of the above) or likely to precipitate uncertainty and instability in the UK’s legal protections for human rights.

Introduction:

2.    The debate surrounding the creation of a UK Bill of Rights is in part premised on the belief that the decisions of the European Court of Human Rights (given effect pursuant to section 2(1) of the Human Rights Act 1998) exert too great an influence over domestic courts and domestic law. Critics of the Act argue that the courts’ application of section 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 the authors of the European Convention.

3.    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 a manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights.’

The influence of the Convention case law under the Human Rights Act:

4.    Domestic courts are not formally bound to apply decisions of the European Court of Human Rights: section 2(1) of the Human Rights Act directs only that domestic courts ‘take into account’ relevant decisions of the European Court. Following implementation of the Act, initial judicial approaches to the Strasbourg case law cautiously erred towards its application in the absence of ‘special circumstances’ (an approach which became known as the ‘mirror principle’).

5.    More recent judicial decisions have however emphasised the non-binding influence of the Strasbourg jurisprudence.110 Further, domestic courts have stressed the ongoing abilityof the common law to protect rights111 and the willingness of UK judges to engage in ‘dialogue’ with the European court.112 Human Rights Act litigation has therefore seen domestic courts seek to blend existing home-grown legal protections for rights with those conferred by the European Convention, and has seen domestic courts actively contribute to the development of the Strasbourg jurisprudence.

6.    The idea that domestic courts and law are subservient to the whims of the European Court of Human Rights as a result of the Human Rights Act 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.

Subsidiarity within the Convention system

7.    The UK remains obligated under international law – as a result of Article 46 of the  ECHR

– to ‘abide by’ decisions of the European Court to which it is a party.113 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. Each of these devices provides flexibility to Member States in the realisation of the Convention rights, recognising – as the European Court has outlined – that:

“… the machinery of protection established by the Convention is subsidiary to the national systems regarding human rights … by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”

8.    Reiteration, by the Court, that the Convention is secondary to the protections offered by the Member States has also been matched by a structural commitment to the principle of subsidiarity. The 2012 Brighton Declaration reasserted the shared responsibility of the States parties 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.

9.    Recent years have therefore seen (i) a weakening of the domestic courts’ presumption in favour of applying relevant Strasbourg case-law, alongside (ii) reforms at the supra- national level designed to emphasise the primary importance of national decision-making processes to the Convention system. That these developments have taken place alongside a gradual improvement in the UK’s record before the European Court of Human Rights (a core aim behind the adoption of the Human Rights Act and consequence of the domestic applicability of the Strasbourg case law) should not be forgotten.116

Is it necessary to ‘break the link’ with Strasbourg?

10.  Given the development of the case law under section 2(1) of the Human Rights Act, the increased evidence in favour of a meaningful dialogue between domestic courts and the European Court of Human Rights, and the movement – post-Brighton – towards a more fully realised notion of subsidiarity within the Convention system, it can be forcefully argued that radical reform of the Act is in fact unnecessary. The Strasbourg jurisprudence has been demonstrated, as a matter of domestic law, not to bind national courts, the upward influence of domestic decisions has been successfully illustrated, and signs are emerging that the commitments agreed to at Brighton are likely to be – to use the phraseology of the European Court – ‘practical and effective.’117

11.  In the light of these factors it is reasonable to conclude that a significant part of the anti- Human Rights Act and anti-Strasbourg narrative which has prompted calls for a British Bill of Rights is based on a jurisprudence – and an interpretation of section 2(1) HRA – which at best appears dated, and at worst appears obsolete.

‘Breaking the link’ with Strasbourg?

12.  ‘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 enactment of a British Bill of Rights would not displace the UK’s obligations in international law under Article 46 of the Convention.

13.  But in the light of the domestic courts’ steady dilution of the ‘mirror principle’ – and the flexibility now recognised in the application of section 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. 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 still be likely to be interpreted in the light of the judicial assumption that Parliament legislates in compliance with the UK’s Treaty obligations. It is equally reasonable to suspect that a section 2 equivalent which permitted judicial recourse to a wider range of authority – 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.

14.  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 would, meanwhile, open up the possibility of increased unpredictability and instability in the UK’s rights regime. This would leave the domestic judiciary (as argued by the Conservative Lord Kingsland during the debates on the Human Rights Bill) ‘cast adrift’ and ‘able to go in whatever direction they wish.’118 It is unlikely that – in the longer term – exchanging the perceived activism of the Strasbourg court for that of a genuinely ‘supreme’ domestic apex court would result in a stable settlement.119

15.  While a section 2(1) equivalent might deliver symbolic change (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 section 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.