By Leon Glenister in Human Rights Act, Right to vote
It is no secret that there has been a frosty relationship of late between the European Court of Human Rights (‘ECtHR’) and the British government. Dominic Grieve this week announced his intention to go to the ECtHR to fight their decision on prisoner voting. The question arising is: what happens where the European Court disagrees with (1) Parliament or (2) the UK Courts?
The legal backdrop
Let’s take a brief legal history on this topic. The UK signed the international treaty that is the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) in 1950. This places an obligation on Parliament, in international law, to secure to individuals the rights contained within it. It also set up the ECtHR, based in Strasbourg, which would give individuals somewhere to go if their rights were infringed. Until 2000 individuals would have to go to the ECtHR to enforce their rights in the ECHR.
All this changed in 2000 when the Human Rights Act came into effect, which imported the Convention rights into domestic law by giving the UK courts certain powers to enforce them. Most notably, if a public authority breached a right, the individual could bring a claim against the authority in the UK courts. The Act also placed a duty on the court to “take into account” any case law from the ECtHR when deciding cases.
So what happens where either the UK Parliament or courts just plainly disagree with Strasbourg?
Parliament
The simple answer is that if the UK does not protect individuals ECHR rights, then that will put the UK in breach of its international obligations. But, that is the simple answer.
The ECtHR has itself attempted to guard against this kind of direct conflict with the ‘margin of appreciation’ doctrine. When deciding cases, this doctrine gives states leeway in how they apply rights. But this has not been enough in the issues where the UK plainly disagrees with the ECtHR.
In recent times the government has come to blows with the ECtHR over whether a ban on prisoner voting breaches the Convention. In 2005, the ECtHR ruled that the blanket ban was a breach of the right to vote. Dominic Grieve this week said he would go to Strasbourg to argue a wider margin of appreciation on this issue.
David Pannick has interestingly argued that, where there is a disagreement, the onus should be on the ECtHR to give clear, persuasive and lucid reasoning. He has stated the court is not only there to decide, but also to persuade.
If the UK fails to implement these decisions though, there are unwelcome consequences. As Thorbjorn Jagland, Secretary-General of the Council of Europe, yesterday warned, a lack of respect for rights in Britain could send waves around Europe to countries such as Russia and Turkey who will be less inclined to respect rights.
Two other consequences are of note. Firstly, Protocol 14 last year came into force, which allows referrals by the Committee of Ministers to the Grand Chamber where there has been non-compliance with an ECtHR decision by a state. The UK could be a prime target for such a referral; although in practice doubtful, Alex Bailin and Alison McDonald have suggested a potential sanction could be suspension or expulsion for the Council of Europe. Secondly, we must not forget this could have an effect on the UK’s underlying financial situation through the EU. Membership of the EU is conditional on ratification of the ECHR; it is possible that any issues the UK has with the ECtHR could have a knock on effect on their EU membership status.
A final note on this issue should be made on a suggestion of the Bill of Rights Commission, on how to deal with a clash between the ECtHR and Parliament, which is the ‘democratic override’. This would allow politicians to overrule a ECtHR decision. An excellent critique of this proposal has been written by ObiterJ, but suffice it to say here that there are obvious dangers in leaving rights protection to backroom politics.
The courts
For the domestic courts, the answer where they disagree with the ECtHR is simple. It is trite law to say domestic courts are bound by an incorporating statute rather than an international treaty. As such, the court must abide by the Human Rights Act over the ECHR. The Act states that they must “take into account” the ECtHR case law; there is no obligation to do so. The consequences of not giving full effect to rights are solely for the government in international law, and not for domestic courts.
It is therefore unsurprising to find Lord Judge last week commenting that the UK courts “are not bound by” the ECtHR. This was demonstrated in the case of Horncastle, where the House of Lords ruled the hearsay evidence laws of the UK did not breach the right to a fair trial of the defendant, despite a contrary conclusion by the ECtHR in Al-Khawaja.
Conclusion
In terms of the relationship Britain has with the ECtHR, we have hit a conflict zone. What will happen is probably going to be more to do with politics than anything else. Perhaps the ECtHR will go back on the Hirst judgment and all will be swept under the carpet. But the UK does need to take these rights seriously; our common law is built on rights and if we don’t respect them, who else will?
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