Some judges are now expressing (extrajudicially) their opinions about what the proper role of the European Court of Human Rights should be. On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law. This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.
I hope to consider the two speeches in a subsequent post but, before doing so, it is worth recalling certain basic matters relating to the E Conv HR to which some 47 States (with some 820 million people) have acceded. This post also takes a brief look at how the E Ct HR interprets and applies the convention.
The European Convention - some basic points:
a) The Preamble to the Convention (which is relevant to interpretation of the Convention) refers to 'securing the universal and effective recognition and observance of the rights' in the convention. 'Maintenance and further realisation of human rights and fundamental freedoms' is seen as a method of achieving greater unity between Council of Europe members. The signatory States affirm their 'profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an affective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.'
b) Article 19 establishes the court to 'ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto ...' Art 32 - The jurisdiction of the court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto .... Art 35 - All domestic remedies must be exhausted before the court may deal with a matter. (This is based on the notion that recourse to the court is a final step when national courts have not, for whatever reason, given satisfaction to the applicant). Art 45 - reasons must be given for judgments. Art 46 - States are bound by the final judgment of the court in any case to which they are a party.
The interpretative obligation in the Human Rights Act 1998:
The Human Rights Act 1998 does NOT state that courts in the UK must abide by decisions of the E Ct HR as if they are binding precedent. However, courts in the UK are mandated to 'take into account' judgments, opinions and decisions set out in section 2 of the Human Rights Act 1998. Situations can therefore arise where the E Ct HR decides "X" but the UK court is only mandated to take "X" into account. At this point, the principle set out in R v Special Adjudicator ex parte Ullah  UKHL 26 enters the fray. Lord Bingham said (at para 20):
'In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23,  2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.'
This statement (the Ullah principle) remains good law but the elements highlighted in purple are worth noting. The principle recognises the non-binding nature of Strasbourg case law but requires UK courts to abide by it in the absence of 'special circumstances' or 'strong reason.' The UK courts must keep pace with Strasbourg 'as it evolves over time.'
The phrase 'over time' is perhaps a reference to the fact that Strasbourg regards the Convention as a "living instrument" which has to be applied in the light of conventional attitudes - e.g. the meaning of 'family' has developed over time as a result of this doctrine. See Gresham College 16th June 2011 - Beanstalk or living instrument? How tall can the European Convention on Human Rights grow?
Note also the recent Supreme Court decisions in Chester and McGeogh where the Supreme Court followed (with some detectable reluctance in some of the judgments) the line of decisions of the E Ct HR Grand Chamber relating to prisoners and voting - post of 21st October 2013.
Interpretation of the Convention:
a) Much has been written about how the convention should be interpreted. The principal aim of the E Ct HR has been to ensure that the 'object and purpose' of the convention is fulfilled. Part of this entails, as the Preamble indicates, the maintenance and further realisation of human rights and fundamental freedoms. Given that the essence of the Convention is protection of individual human rights from violation by States, any limitations or qualifications of the rights set out in the Convention are to be narrowly construed - e.g. Marckx v Belgium (1979) 2 EHRR 330 para. 31.
b) The E Ct HR will endeavour to make rights practical and effective and not theoretical or illusory: Marckx v Belgium and also Golder v UK (1979) 1 EHRR 534.
c) The E Ct HR has developed its own interpretation of certain terms used in the convention. For example, 'criminal charge' and 'civil rights and obligations' in Article 6 are not construed according to national classifications.
d) More controversial is the living instrument (or dynamic interpretation) approach. The convention need not, and should not, be interpreted as it would have been in the 1950s. In Tyrer v UK (1978) 2 EHRR 1, the phrase 'living instrument' appeared. The convention has to be interpreted in the light of present day conditions. It almost goes without saying that social attitudes to many matters have changed markedly whilst the convention has been in existence. A good example of the development of the convention through the living instrument approach is the treatment of transsexuals - see the line of cases from Rees v UK (1987) 9 EHRR 56, via Cossey v UK (1990) 13 EHRR 622 and Sheffield and Horsham v UK (1998) 27 EHRR 163 to Goodwin v UK (2002) 35 EHRR 18. Over those 15 years, the case law of the E Ct HR came to recognise that lack of legal recognition of a person's new gender was a violation of Article 8. Developments in the law such as this are now seen as beneficial and have been accepted by the UK Parliament - Gender Recognition Act 2004.
The living instrument approach has come under fire recently from politicians and also in some judicial speeches - notably that of Lord Sumption - to which I shall return in a later post so I will save his arguments for that post.
e) A further interpretative aid is recourse to other human rights instruments and to practices within democratic States. An appropriate example of the court doing this is the prisoner voting case itself: Hirst v United Kingdom (No.2) 2005. Here, the E Ct HR looked at relevant domestic law and practice; a considerable number of relevant international documents such as the International Covenant on Civil and Political Rights; law and practice in other Council of Europe States and law practice in some non-Council of Europe States - e.g. Canada..
Domestic Law and the European Convention on Human Rights - No. 4 - with links to 3 other posts looking at how the E Ct HR has considerably influenced, in a beneficial way, English law.