Constitutional Change: Unfinished Business
In fact, Lord Judge's speech is wide ranging and his views about the European Court of Human Rights come in the final paragraphs.
In the first two-thirds of the speech, Lord Judge asserts that all power must be based on law and that independence of the legal professions, press and media and also the police is essential to the maintenance of the rule of law. The Judges are the guardians of the rule of law. Lord Judge notes the influence of the executive over Parliament (para 8) and he reiterates the traditional (Diceyean) theory of the sovereignty of Parliament (9). He is clearly highly concerned at the way in which various changes, affecting the administration of justice, have been brought about with some proposals being deliberately withheld from the judiciary (15 and 18). He deprecates
the fact that the judiciary no longer has as influential a voice in government as was the case before the Constitutional Reform Act 2005 reformed (and weakened) the office of Lord Chancellor (20). He goes further and argues strongly for the Lord Chief Justice (as Head of the Judiciary) to be required to agree with funding proposals (28-30) (though, in the event of disagreement, Parliament would have the final say) and he urges reconsideration of the prohibition on the Lord Chief Justice speaking in the House of Lords (17 and 32).
Turning to matters European, Lord Judge noted that our constitutional arrangements have bestowed authority on judicial bodies in Europe (3). He sees little of difficulty with the Court of Justice of the EU making judicial decisions in relation to economic matters (39). His concern lies with the European Court of Human Rights.
Lord Judge asks - what do the words "must take into account" mean in the Human Rights Act 1998 s2(1). They cannot mean that English courts are required to apply or follow matters such as judgments of the European Court of Human Rights. In para 41 Lord Judge said:
'Personally, I have never doubted, and have spoken publicly to the effect that the words mean what they say. To take account of the decisions of the European Court does not mean that you are required to apply or follow them. If that was the statutory intention, that would be the language used in the statute. The principles of stare decisis, that is, the principle that superior courts bind inferior courts, principles which govern the way in which our domestic courts work, has been erroneously applied to the decisions of the Strasbourg Court, in effect, with a few limited exceptions, the suggestion is that our courts, if not bound to do so, should follow the Strasbourg court.'
He then turns to the "living instrument" doctrine (42).
'In my view, the Strasbourg Court is not superior to our Supreme Court. It is not, and it is important to emphasise, that it has never been granted the kind of authority granted to the Supreme Court in the United States of America, authority, let it be emphasised, which is well established in the constitutional arrangements of that country. Nevertheless, although not in any sense a Supreme Court of Europe, which, I repeat, does not consist of a federation of states as the United States of America does, by using the concept of a “living instrument”, the Court appears to be assuming, or seeking to assume the same mantle.'
Here, there is no balance. There is no mention of the benefits which the living instrument doctrine brings to human rights development and that such developments have been carefully handled by the E Ct HR so that the court has followed, rather than led, developments in social attitudes across European Convention States (and, sometimes, elsewhere).
Next in the crosswires was the recent decision of the E Ct HR in Del Rio Prada v Spain. At para. 44 Lord Judge said (link added):
'Let us now consider a very recent decision, Del Rio Prada v Spain, a decision of the Grand Chamber given on 21 October 2013, where the Court referred to the “progressive development of the criminal law through judicial law-making” as a well entrenched and necessary part of the legal tradition in the convention states in a way which suggested that the Court itself was vested with the power progressively to develop the criminal law throughout Europe. Later in the judgment, addressing Article 46 of the Convention, the Grand Chamber unequivocally stated that its effect was that when the Court finds a violation of the Convention, the state against whom the finding is made is under a “legal obligation” not only to pay the sums awarded by way of just satisfaction, but to take individual or, if appropriate, “general measures in its domestic legal order to put an end to the violation found by the Court and to redress its effects”. Notice, this is not a recommendation. Although the judgment then acknowledges the freedom of the state to choose the means by which the “legal obligation” will be discharged, it is left with no alternative, and the Court may order the particular measures required to remedy the violation. All this is said to arise from a Convention obligation. This is no longer a question of the meaning of statutory construction of s2(1). If this observation of the Grand Chamber means what it says, the court in a foreign jurisdiction is asserting an unappealable right to impose legal obligations with which this country, and ultimately every country in Europe, must comply.'
It is correct to say that there is no authority for the E Ct HR to progressively develop the criminal law throughout Europe. (Interestingly, it is the EU which has tended to be at the forefront of any such process - e.g. European Arrest warrants etc). The E Ct HR may only adjudicate in relation to the specific rights granted by the convention.
The convention is an international treaty and, in international law, the United Kingdom is bound by judgments to which it is a party (Art 46 of the Convention). Surely then, the UK is required by this obligation to take measures in its domestic legal order to put an end to the violation found by the Court and to redress its effects. Of course, the UK may choose not to do this. In that event, the UK will breach its international law obligation and must be willing to accept whatever consequences arise.
The Human Rights Act 1998 treads a fine line between the sovereignty of Parliament and convention rights. The power of Parliament to enact any legislation it wishes remains and that includes legislation which is contrary to the European Convention. If the courts find an incompatibility then there is the power in the HRA 98 to make a declaration of incompatibility and then the matter rests with Ministers and Parliament. A declaration of incompatibility does not, in itself, alter the law.
Lord Judge then goes on to suggest amendment of section 2(1) of the HRA 98. At para 46:
' .... It would, I believe, make sense for s2(1) of the 1998 Act to be amended, to express (a) that the obligation to take account of the decisions of the Strasbourg Court did not mean that our Supreme Court was required to follow or apply those decisions, and (b) that in this jurisdiction the Supreme Court is, at the very least, a court of equal standing with the Strasbourg Court.highly...'
One might have thought that suggestion (a) was unnecessary because "take into account" is clear enough. Also, Lord Judge's suggestion would probably not change the fact that the courts would still generally choose to follow a consistent line of Strasbourg decisions. Why? Simply because it normally makes good sense to do so since a decision of the E Ct HR is, as Lord Sumption said in Chester - '... more than an
opinion about the meaning of the Convention. It is an adjudication by
the tribunal which the United Kingdom has by treaty agreed should give
definitive rulings on the subject.'
When it comes to the meaning of the Convention itself, it IS the E Ct HR which gives definitive rulings. It seems inherent in section 2(1) of the HRA 98 that the Supreme Court of the UK could decide to go against E Ct HR decisions. In Chester, the Supreme Court asserted its right to do this but would only do so in certain circumstances. Suggestion (b) therefore seems legally unnecessary even if it might be attractive to some politicians.
Finally, it is interesting to speculate about what would happen if the Supreme Court were to move further away from the Ullah principle and begin to go against Strasbourg decisions more frequently. What would it put in place instead of the Strasbourg ruling? The Strasbourg decision says "X" but we will do "Y". On what basis would "Y" have been chosen as the preferred solution. Might choosing "Y" not then leave the Supreme Court open to accusations of judges legislating?
Jerry Hayes - Shades of Grayling ...