Saturday 7 December 2013

Thoughts on the Hamlyn Lecture by Lord Justice Laws

Some judges are now expressing (extrajudicially) their opinions about the European Court of Human Rights. On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.   His lecture was considered in my previous post.   

Lord Sumption's lecture was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   Note - Lecture 1 was entitled Common Law and State Power: Lecture 2 was Common Law and Extremism.

On 28th November, Lady Hale (Deputy  President of the Supreme Court) - Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

The following is my look at the lecture by Laws LJ.  I express my view as a citizen who quite likes the human rights protection that we have.  I certainly do not wish to see it weakened.

Lord Justice Laws - Common Law and Europe.

There is much of interest in this lecture.
Laws LJ expresses his view that the common law is the constitution's unifying principle (para 2). He illustrated how the common law developed by reception of material from many sources including the European Convention on Human Rights.  This ability to receive material and to adapt is referred to as 'catholicity.'   The common law is regarded as a restraining influence on State power - allowing the legislature and the government efficacy but forbidding oppression.

He goes on to discuss the relationship of law in the UK with the law of the European Union.  Sovereignty has NOT been surrendered by the UK Parliament to the EU (para 11).  The famous Spanish Fishermen case - Factortame No. 1 [1990] 2 AC 85 - is then considered along with Laws'  own judgment (with which Crane J agreed) in Thoburn v Sunderland City Council [2003] QB 151.  The idea that a statute could impliedly repeal an earlier statute was modified by Laws' judgment in Thoburn because the court held that a "constitutional statute" was protected against implied (though not express) repeal.  To that extent, Parliamentary sovereignty had been modified (16).  The European Communities Act 1972 was classed (by Laws LJ) as a "constitutional" statute.  Laws LJ then comments that any "sovereignty" which the EU possesses in the UK was given to it by Parliament (19).  [Here, I respectfully think that Laws LJ meant "any legal influence" rather than "sovereignty"].    His remarks about the EU concluded with a hope that even if the UK were to secede from the EU, certain principles (e.g. proportionality) would continue to mature in the common law and enrich the constitutional balance (20).

For me, the "fun" starts at para 21.  The common law's catholicity is threatened not only by the perceived effects of EU law but also by those of the law of human rights.  The perceived effects of human rights law also threatens another virtue of the common law: restraint.  The charge is that the law of human rights has got too big.  Judges have been pushed into "political" decisions.  Human rights law should be made "truly our own" so as to quell fears of the "incoming tide" and keep control of the proper place of human rights.

This takes us back to the question of how matters for decision should be classified: legal or political.  The reality however is that there is no such neat classification.  Decisions at Strasbourg certainly involve matters of major importance but it seems wrong to classify them as "political" so that the judges can then be accused of acting "politically."  The question for the Strasbourg court is what does the LAW of human rights require.  It is also somewhat unclear what was meant by "the proper place of human rights."  This is suggestive of human rights law being placed in some position otherwise than as a central feature of life in a truly democratic nation.

Laws LJ then asks whether our courts are more subservient than they used to be to the jurisdiction of the E Ct HR (22).  Have they fettered their historic autonomy and undercut their own power of judgment - the very power that enables them to keep the constitutional balance.  Laws LJ notes that this is not a new debate but he argued that important questions remain as to the relationship between the Human Rights Act 1998 and Convention jurisprudence.

Discussion of the Human Rights Act 1998 s2(1) follows.  The Ullah decision has not been overturned but there has been some slippage from it - e.g. Osborn v Parole Board [2013] UKSC 61 and Chester v Secretary of State for Justice [2013] UKSC 63.

At para 30, Laws LJ points to two statements at the heart of the debate.  In Ullah, Lord Bingham said - " ... the correct interpretation of [the convention] can be authoritatively expounded only by the Strasbourg court ... the meaning of the convention should be uniform throughout the States party to it."  In Chester, Lord Sumption said - "A decision of the E Ct HR ... is an adjudication by the tribunal which the UK has by treaty agreed should give the definitive rulings on the subject.  the courts are therefore bound to treat them as authoritative expositions of the Convention."  Laws LJ then states - at para 31 - "So the House of Lords and the Supreme Court have accorded overriding force to the notion that only Strasbourg's rulings are "definitive" or "authoritative."  Why should this be so?  Section 2 of the Human Rights Act 1998 cannot bear such a weight.  The expression "take into account" simply does not mean "follow" or "treat as binding" (or something close to it)."

Is Laws LJ absolutely correct to say that the House of Lords and the Supreme Court have adopted a position where overriding force has been accorded to Strasbourg rulings?  Lord Bingham in Ullah did not say that.  His speech was surely more along the lines that E Ct HR decisions involving the UK would normally be followed.  In Chester, the Supreme Court also noted a similar position when it referred to following a consistent line of E Ct HR decisions which, in effect, had rendered further dialogue pointless.  Such a line of decisions would be followed unless some fundamental principle of our law was affected.

Next, Laws LJ points out that section 2(1) of the Human Rights Act 1998 requires UK courts to "take into account" not only decisions of the E Ct HR but also decisions of the Council of Europe etc.  Laws argues that Parliament cannot have intended, by using the phrase "take into account", that our courts should treat such decisions as effectively determining the jurisprudence of the convention for the purposes of its application in the UK.  "Yet the term "take into account" must mean the same across all its applications in the subsection."

One possible answer to this is that "take into account" does mean the same thing across all its applications in the subsection BUT when "taking into account" questions of "weight" arise,  This is a commonplace matter when considering evidence.  Everyday the courts "take into account" evidence from witnesses and other sources and accord to it appropriate "weight" - that is, how persuasive it is in deciding some fact in issue.  One might therefore think that judgments of the E Ct HR would, generally speaking, be accorded greater weight than decisions and statements of the Council etc.

Laws LJ next argued that the deference to Strasbourg may arise from Art 46 of the Convention which is the undertaking by Convention States to abide by final judgments to which they are a party.  That is an international law obligation NOT incorporated into English law by the Human Rights Act 1998.  Art 46 only means that the UK as a signatory State must abide by such judgement.  Laws goes on to say that we should therefore have the confidence to engage in constructive dialogue with Strasbourg (para 34).

Perhaps recent cases show that such confidence already exists at Supreme Court level but there comes a point when further dialogue will be pointless.  Was that not reached in the Chester case?.

For Laws LJ, the historic role of human rights law has been to protect what are "properly regarded as fundamental values" and not "to make marginal choices about issues on which reasonable, humane and informed people my disagree (para 36).  Fundamental values possess an irreducible minimum.  Maybe there is little to argue about here but what is a "fundamental value" can be debated.  Consider the death penalty.  Even though the Convention has always contained Article 2 (Right to Life), the death penalty was permitted by the Convention as originally drafted but is no longer permissible whether in war or peace.  Nevertheless, I have known many reasonable, humane and informed people who considered that the death penalty should have a place in our criminal justice system.  I disagree with such views but, the fact remains, it is a view that may be held.

Finally, Laws goes on to argue that, on convention issues where there may be more than one civilised view, the balance to be struck between policy and rights, between judiciary and government, is surely a matter for national constitutions.  There may properly be different answers to some human rights issues in different States on similar facts.  Laws thinks that the Strasbourg court should recognise this and the means is at hand through applying the margin of appreciation.

For all the erudition of this lecture, I remain unconvinced.  There IS good sense in the position already reached by the Supreme Court with regard to applying E Ct HR decisions - particularly those binding internationally on the UK.  This offers greater certainty in the UK itself and helps avoid claimants the long and expensive road to Strasbourg.  There is good sense also in the idea that the definitive decision rests with Strasbourg.  Why?  Because that it what the treaty (convention) requires.  It is precisely why the court was established by Article 19 of the convention. 

The prisoner voting issue appears to underlie all of this.  Many influential Ministers say that the idea of a prisoner voting makes them feel ill.  This is, of course, nonsense and was said by David Cameron for purely political reasons.  Strasbourg has ruled on the matter: the UK Supreme Court sees no point in further dialogue.  Strasbourg has NOT said that ALL States must do the same thing.  It has said that a wholesale ban on voting is against the convention.  Different solutions are available and Strasbourg seems to have little problem with them.  Prisoner voting ought not to be permitted to be a sidewind causing us to abandon an effective system of rights protection which has proved its worth in numerous areas to the overall benefit of our law.

My final post on these lectures / speeches will follow.  Last, but by NO means least, Lady Hale.

Lady Hale -  Warwick Law Lecture 2013

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