Sunday, 22 December 2013

The debate on the European Convention on Human Rights

In recent times, a number of senior judges have made interventions in the ongoing debate on the European Convention on Human Rights (ECHR) and the European Court of Human Rights in Strasbourg which enforces it.  They include Lord Sumption and Lord Reed of the Supreme Court, the recently retired Lord Chief Justice Lord Judge, Lord Justice Laws of the Court of Appeal and Judge Paul Mahoney of the Strasbourg Court.

The debate on the ECHR and the way in which it is applied by the Strasbourg Court has been going since at least the 1990s.  It is closely associated with, but conceptually separate from, the debates on the future of the Human Rights Act (which effectively makes the ECHR directly enforceable in the UK); on how far UK judges should follow Strasbourg decisions when ruling on domestic cases; and on whether the UK should adopt a "British Bill of Rights".  I have blogged previously about the various debates here and here.

As far as the ECHR and the Strasbourg Court are concerned, opinion tends to divide along left/right lines: people on the left tend to favour the status quo while people on the right tend to criticise it.  This is historically curious, given that Conservative politicians played a major role in bringing the ECHR into being and the Attlee government had concerns that its provisions were anti-socialist.  Some commentators on the right have plausibly sought to defend the ECHR as a small-c conservative, Burkean document.  Conversely, one of the Court's most prominent critics is Lord Hoffman, a retired judge who is seen as politically liberal.

There are various procedural problems with the Court, which has an enormous case backlog (to give some idea of the scale of the problem, it received 61,300 petitions in 2010, including 1,200 from the UK).  These problems are well known to all concerned, and are slowly being addressed.  But the problems with the Court are not merely procedural.  They extend to the way in which it carries out its judicial duties.  The rights set out in the ECHR are unobjectionable - it is the way in which they are applied by the Court that is the problem.  Lord Sumption puts it this way:
The text of the Convention is wholly admirable.  It secures rights which would almost universally be regarded as the foundation of any functioning civil society....  But the European Court of Human Rights in Strasbourg stands for more than these.  It has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying....  A good example is the steady expansion of the scope of Article 8.  The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence.  This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments.  But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides.
It is also worth quoting the words of the Attorney General, Dominic Grieve:
[The Court] has been transformed from an international tribunal adjudicating on a few major cases of international significance into an appeal court ruling on the minutiae of administrative decision making ranging from what is allowable in smacking a child, to what degree of ill health is needed before deportation becomes a cruel and inhuman act, to whether the Lord Advocate in Scotland should be allowed to appoint part time judges because of the separation of powers....
This sort of criticism can be overdone.  The media has developed an unhealthy habit of fostering myths about the ways that human rights are abused (not coincidentally, the ECHR's privacy provisions have the effect of limiting how far the media can pursue salacious stories about individuals).  There are many frivolous reports of the Littlejohnian couldn't-make-it-up variety about how yooman rights have led to prisoners getting access to hardcore porn and so on.  The NGO Liberty has helpfully produced a guide which rebuts some of these tabloid scare stories.  But behind the myths there is a series of genuinely unsatisfactory and unpopular decisions.  Even leaving aside well-publicised cases involving alleged terrorists like Abu Qatada, the Strasbourg jurisprudence contains such gems as the following:
  • D v UK (1997) - A drug trafficker with AIDS could not be deported because he needed NHS treatment
  • Stafford v UK (2002) - The Home Secretary cannot determine when convicted murderers are released on licence
  • Hatton v UK (2003) - The Government was not entitled to change the regulations governing night flights at Heathrow Airport 
  • Massey v UK (2003) - The Government had breached a paedophile's human rights by allowing criminal proceedings against him to be dragged out for over four years
  • Stretch v UK (2004) - A local authority cannot promise to extend a tenant's lease if it has no authority to extend the lease
  • Hirst v UK (No 2) (2006) - Prisoners cannot be subject to a general ban on voting 
  • Dickson v UK (2008) - Prisoners are entitled to facilities for artificial insemination
  • Al Skeini v UK (2011) - The ECHR was binding on British troops undertaking combat operations in Iraq
The point is not that any of these rulings was politically or morally wrong - though it could certainly be argued that some of them were - but rather that this isn't the sort of stuff that the Court ought to be getting involved in.  The notion that a treaty drawn up in the shadow of Auschwitz and the Gulag should be used to restrict night flights at Heathrow verges on the self-parodic.  It is exactly this sort of thing that gets human rights a bad name.

The mere fact that the Court sometimes makes a bad decision isn't necessarily significant in itself.  Judges are only human, and sometimes they get it wrong.  In addition, on some occasions they have no choice but to make unpopular rulings in order to enforce the law and protect vulnerable people.  But "challenging" judicial decisions are more likely to command confidence and respect if they are made on a national level by courts whose legitimacy is widely accepted than if they are made by a relatively remote international technocracy in Strasbourg.  Moreover, the Court has not been making bad decisions merely because it has occasionally fallen asleep at the jurisprudential wheel - the underlying reason is that it has consciously adopted a judicial philosophy which is fundamentally unsound.

Essentially, the Court treats the ECHR as a "living instrument" whose meaning is constantly evolving - and expanding - in ways that have little to do with the wishes and intentions of the contracting states which signed up to it in the first place.  The "living instrument" approach seems to have first reared its head in the 1975 case of Golder v UK, in which the Court monkeyed around with the text of the ECHR in order to arrive at the conclusion that a prisoner had a fundamental human right to instruct a solicitor to sue a prison officer for libel.  The term "living instrument" itself was first used in the 1978 case of Tyrer v UK.  This involved a Manx teenager who had been sentenced to a birching.  Birching was an unpleasant and morally dubious practice, and there was a good case for saying that it fell within Article 3 of the ECHR, which bans "inhuman or degrading treatment or punishment".  So the Court probably arrived at the "right" conclusion, but in doing so it chose to introduce a novel and destructive concept into its jurisprudence.  Put more simply, even when the Court gets it right, it sometimes gets it wrong.  When it ruled in Dudgeon v UK (1982) that gay sex could not be criminalised in Northern Ireland, it did not content itself with basing its decision on the text of the ECHR's provisions: it saw fit to appeal to the much more legally nebulous argument that the laws at issue ran contrary to an emerging European consensus.

In some cases, the Court has directly contradicted the intentions of the states which created it and conferred its authority upon it.  Hirst v UK, the notorious case about votes for prisoners, was decided in spite of the demonstrable fact that the contracting states had expressly chosen not to include wording in the ECHR laying down who must be allowed to vote.  Similarly, in Young, James and Webster v UK (1982), the Court found that the ECHR conferred a right on employees to refuse to join a trade union, in spite of the fact that the contracting states had deliberately omitted such a right from the text of the convention.

Nor, looking at the matter more generally, did the contracting states authorise the Court to adopt the "living instrument" approach.  To be sure, Danny Nicol has shown that some of the drafters of the ECHR had an expansive view of the document's scope, and saw it as a fully-fledged bill of rights for Europe.  However, this view was controversial even at the time, and it certainly did not represent the common understanding of the states which signed up to it.  It has even been argued that the "living instrument" approach is unlawful under the rules governing the interpretation of international treaties set out in the Vienna Convention.  At any rate, the Court didn't really have any justification for suddenly deciding in 1978 that the ECHR was a living document, except that it thought that it should be.

To be fair, the judges themselves sometimes realise that they've gone too far.  Last year, the Court accepted that kettling people in Oxford Circus did not amount to depriving them of their liberty.  One academic commentator has discerned a "worrying trend" here which amounts to "appeasement" (the Godwinian terminology is unfortunate - it is not immediately obvious that an analogy can be drawn between an unelected body deferring to democratic governments and the appeasement of Adolf Hitler).

For some, the activist approach is legitimised by its results - one commentator, for example, has singled out the increasing protection given to LGBT people following cases like Dudgeon.  But this is a really, really bad argument.  There is nothing inherent in the ECHR system which guarantees that it will always be administered by high-minded liberals.  Defenders of the activist approach might wish to reflect on how the extensive power which they want to concentrate in the hands of unelected individuals would be used if those individuals ended up being judges in the mould of, say, Prof. Antonin Scalia.  (This danger is understood by Prof. Conor Gearty, an academic lawyer of progressive views.)

Another argument in favour of the Court nudging across the line between law and policy is that leaving sensitive policy decisions in the hands of politicians leaves the rights of unpopular minorities - immigrants, prisoners, LGBT people - at the mercy of hostile majoritarianism.  It is easy to imagine situations where this might be a real problem.  But it is less easy to conclude that transferring such decisions into the hands of unelected judges - who themselves tend to come from relatively narrow and privileged backgrounds - is the solution.  We know where this sort of thing leads.  The USA has ended up in the absurd position whereby the ultimate authority on whole categories of public policy, from campaign finance to healthcare, lies not with voters and legislators but with nine unelected lawyers, whose views may in turn depend on the party affiliations of the presidents who appointed them years or decades previously.

The Court's expanding jurisdiction has developed in tandem with an increasing tendency for campaigners and NGOs to treat litigation as politics by other means.  This use of the legal process as a political tool is generally associated with liberal and left-wing causes, but it has its adherents on the right as well, notably the Countryside Alliance and certain conservative Christian groups which have Quixotically attempted to use both the Court and the domestic legal system to reverse the long-term secularisation of British society.  Lord Sumption notes that this is a symptom of a broader dissatisfaction with the compromises and lack of clarity which characterise the political process:
[People] expect their politicians to be not just useful but attractive.  They demand principle, transparency and consistency from them.  And when they do not get these things, they are inclined to turn to courts of law instead.  The attraction of judge-made law is that it appears to have many of the virtues which the political process inevitably lacks.  It is transparent.  It is public.  Above all, it is animated by a combination of abstract reasoning and moral value-judgment, which at first sight appears to embody a higher model of decision-making than the messy compromises required to build a political consensus in a Parliamentary system.  There is, however, a price to be paid for these virtues.  The judicial resolution of major policy issues undermines our ability to live together in harmony by depriving us of a method of mediating compromises among ourselves.
There is a more fundamental objection to an international court exercising sweeping authority over states' domestic politics.  Lord Hoffman has written, in connection with the controversies over decisions of the US Supreme Court:
But the Court has retained more or less universal respect.  There are several reasons.  One is the generally high quality of the judges.  Another is their knowledge of American society.  But the third, which I would emphasise, is that they are an American court, created by the Constitution, appointed by the President, confirmed by the Senate, an essential and historic part of the community which they serve.  They have a special constitutional legitimacy for the citizens of the United States.
The important lesson which one draws from the American experience, and in particular the way in which the U.S. Bill of Rights has been interpreted in the United States, is that, at the level of abstraction, human rights may be universal....  At the level of application, however, the messy detail of concrete problems, the human rights which these abstractions have generated are national.  Their application requires trade-offs and compromises, exercises of judgment which can be made only in the context of a given society and its legal system.
Lord Justice Laws puts the matter this way:
The historic role of the law of human rights is the protection of what are properly regarded as fundamental values. It is not to make marginal choices about issues upon which reasonable, humane and informed people may readily disagree. I acknowledge that the boundary between proper policy and the vindication of rights is difficult. What is a policy issue to one man’s mind is a human rights issue to another. Certainly there will come a point – and it is a very important point – where the law of human rights must be allowed to say, Thus far but no further. Fundamental values possess at the very least an irreducible minimum. Torture, the suppression of free speech, or disregard of due process are not matters of legitimate disagreement, but of shame. However in a debate on Convention issues where there may be more than one civilised view, the balance to be struck between policy and rights, between the judiciary and government, is surely a matter for national constitutions.
In theory, the Court is supposed to give signatory states a "margin of appreciation" in the way in which they implement the ECHR.  In practice, however, as Judge Mahoney has admitted, "there is far from any consensus surrounding the margin of appreciation and its application".  Some judges are more inclined to defer to national policy choices than others.

The international character of the Court is predictably upsetting to right-wing nationalists, the sort who are allergic to anything "European".  Enoch Powell once gave an entertainingly mental speech in which he declared that he would rather receive injustice in the Queen's courts than justice from foreigners.  Yet behind such nonsense there is a serious point.  The fact is that, rightly or wrongly, international bodies do tend to suffer from a deficit of popular legitimacy in a way that national institutions simply don't.  And where such a legitimacy deficit exists - coupled with an equally inevitable democratic deficit - one might conclude that such bodies should not get too deeply involved in taking partisan positions on contentious domestic issues, if only for the sake of preserving their own credibility.  There may exist somewhere a world in which international courts can bring nations into rational conformity with universal liberal principles without provoking controversy or resentment, but this isn't it.  If the Court spends its precious political capital quibbling about precisely when convicted criminals can properly be excluded from the franchise, it will be easier for ill-intentioned people to ignore it when it deals with stuff that actually matters.

Select Bibliography

British Academy, "Human Rights and the UK Constitution", 2012
Civitas, "Strasbourg in the Dock", 2011
Dominic Grieve, "Can the Bill of Rights do better than the Human Rights Act?", 2009
European Research Group, "Human Rights", 2011
Lady Hale, "Beanstalk or Living Instrument?", 2011
Henry Jackson Society, "Rescuing Human Rights", 2012
Lord Hoffmann, "The Universality of Human Rights", 2009
Lord Kerr,  "The Conversation between Strasbourg and National Courts", 2009
Lord Kerr, "The UK Supreme Court: A Modest Underworker to Strasbourg?", 2012
Policy Exchange, "Bringing Rights Back Home", 2011
Society of Conservative Lawyers, "Democracy Must Prevail", 2013