Thursday, 26 September 2013

Grayling on Making the Supreme Court supreme.

Updated 30th September:

In an article in The Spectator, the present Secretary of State for Justice and Lord Chancellor (Chris Grayling MP) has set out his vision of the future relationship between the United Kingdom and 'Europe' - The Spectator Chris Grayling: 'I want to see our Supreme Court supreme again'

It is plain that Grayling, along with a number of other British politicians, dislikes the European Convention on Human Rights and, in particular, the European Court of Human Rights.  He intends to publish draft legislation containing his ideas for reform.  This will be published, very possibly, in 2014.  The Spectator article states that - Grayling would not be drawn on the specifics of what will be in this bill. He wants to see what the working group he has set up with former Tory leader Michael Howard on it suggests. But he’s clear that: ‘We have to curtail the role of the European Court of Human Rights in the UK, get rid of and replace Labour’s Human Rights Act. We have to make sure that there is a proper balance between rights and responsibilities in law.’  Crucially, he adds, ‘I want to see our Supreme Court being supreme again. I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg.’

Clearly, here is a strong indication that the Conservative Party plans to leave the jurisdiction of the European Court of Human Rights.  This may well become clearer at their forthcoming Party Conference in Manchester.  Grayling sees sorting out Britain’s relationship with the Strasbourg court as being as important as renegotiating the terms of Britain’s membership of the European Union (EU).

So we have a glimpse of the green pastures to which Grayling plans to lead us.  Clearly, as a political matter, the present United Kingdom (or whatever it becomes following the Scottish Independence referendum), does not have to be a member of international organisations such as either the Council of Europe or the EU but it would be surprising if any British government chose to minimise its international influence by withdrawing from such bodies.  The current talk in relation to the EU is along the lines of a re-negotiation of membership terms rather than withdrawal.

Council of Europe:

The Council of Europe (COE) is an international organisation of 47 member States.  The Council came into existence in 1949 under the Terms of The Statute of the Council of Europe.  It is under the aegis of the COE that the European Convention on Human Rights exists and the European Court of Human Rights operates and it is Part 2 (Articles 19-51) of the Convention which sets up the court and defines its powers.

European Court of Human Rights

Members of the COE are, according to the Statute Article 3, required to 'accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms ......'   The reference here to human rights and fundamental freedoms would be almost meaningless unless there was a document defining those rights and freedoms.  They are not defined in the COE statute but are defined in the separate European Convention on Human Rights.  Hence, the Statute and the Convention seem to be inextricably linked such that a State which sought to avoid the Convention would have to leave the COE.    Withdrawal is permitted in accordance with the Statute Article 7.

European Union:

The European Union has developed from the original European Communities created by the Treaty of Rome 1957.  Since then there have been numerous further Treaties and further States have acceded so that, at the present time, there are 28 members with 5 on the road to membership and a further 3 possible candidates.  Article 50 of the Consolidated Treaty on European Union permits a member to withdraw. 

Court of Justice of the EU
The EU has not ignored the COE.  Up to now, the Court of Justice of the EU has recognised and applied principles of the European Convention on Human Rights.  In this way, the convention has influenced, and been absorbed into, the court's jurisprudence.   Under Article 6 of the Consolidated Treaty on European Union, the EU itself will accede to the convention.  This will embed convention rights even further into the law of the EU and, indirectly, into national legal systems.  Hence, if the UK remains an EU member, human rights will continue to exercise their influence.

The UK Supreme Court:

The Supreme Court of the United Kingdom (UKSC) is a creature of the Constitutional Reform Act 2005 (Part 3) and it replaced the Appellate Committee of the House of Lords.  Although the title 'Supreme Court' was chosen it is not supreme in everything since it is not empowered to hear criminal appeals from Scotland though this statement must be qualified to some degree because the court has 'devolution jurisdiction' and this has enable some matters related to Scots criminal law to come before the court.

Supreme Court of the UK

Unlike some Supreme Courts - such as the Supreme Court of the United States of America - the UKSC does not have power to strike down Acts duly enacted by the legislature.  This is an important limitation on the power of the UKSC.  It must accept and apply Acts of Parliament.  Under the UK's constitutional arrangements, the true legal supremacy lies with Parliament.

Until Grayling's ideas are published, it is not clear whether there is any plan to alter these arrangements.  At the moment, under the Human Rights Act 1998, the UKSC may issue a 'declaration of incompatibility' if it finds that a provision in legislation is incompatible with convention rights.  This puts Ministers on notice and it is then possible for them to bring forward amending legislation so as to address the incompatibility.  However, they do not have to do so and unless amending legislation is passed the law remains unaltered.    It seems unlikely that any proposals from Grayling will go much further than these or similar arrangements since Ministers generally wish to maintain the legislative supremacy of Parliament.  That enables Ministers to wield huge power given the usual dominance of the executive over Parliamentary business.

What if the European Convention on Human Rights no longer applied to the UK?

IF the UK is able to escape the clutches of the European Convention on Human Rights and the European Court of Human Rights then what would be the source, if any, of rights in the UK with its various internal legal systems (law of England and Wales, Scots Law etc)?

One option would be to have a British Bill of Rights.  This option was considered by a Commission on a British Bill of Rights which reported on 18th December 2012.  Such a Bill could be modelled on the European Convention.  After all, one might well expect a British Bill of Rights to offer to British citizens at least the same level of protection as the European Convention.  Of course, it might offer more rights (perhaps doubtful?) or fewer rights or may offer the same rights but include different ways of restricting those rights.  A majority of the Commission on a British Bill of Rights said that there was a strong argument in favour of a UK Bill of Rights which would have at its core the rights currently in the European Convention on Human Rights including those protocols which the UK has accepted.

Whatever the form of any such British Bill of Rights, the Supreme Court would be the ultimate authority on its interpretation though it seems unlikely that the court would be granted power to strike down legislation which did not meet the Bill.  Perhaps there would be a declaration of incompatibility process similarly to that in the Human Rights Act 1998.

In the absence of a British Bill of Rights, there would be a return to the pre-Human Rights Act position but without the right to take the case to Strasbourg.  The doors of the UKSC would be the final stop.  The rights of the British citizen would rest on common law and statute.  Parliament would be fully free to do whatever it wished as, in strict law, it is at the moment.  For some, that is a worrying prospect, given the enactment of much illiberal legislation in recent years.  It is worrying because the important human rights check on such legislation would have been removed.

Nothing in the Grayling view seems to acknowledge the enormous and, on the whole, beneficial impact which the Convention has had on our domestic law.  It is to this tricky, politically charged and fascinating topic that we shall undoubtedly return when the Grayling vision of the 'broad, sunlit uplands' (per Churchill) is revealed.

Some other posts:

EU Accession to the European Convention on Human Rights - 11th April 2013

Domestic Law and the European Convention on Human Rights - 18th May 2013 - (series of posts - earlier posts in the series at Part 1, Part 2 and Part 3.)

The European Convention on Human Rights is 60 today - 3rd September 2013

Five posts on why we shouldn't leave the European Convention on  Human Rights - UK Human Rights blog 29th September 2013.

Roger Masterman: A tale of competing supremacies - UK Constitutional Law blog


Speech by Chris Grayling to the Conservative Party Conference - Manchester 30th September 2013

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