Chapter 7

The Supremacy of Strasbourg?

The European Court of Human Rights is intensely maligned but what are the true facts about its operation and its relationship with the Human Rights Act?  Despite all the hostile energy generated by criticism of the Strasbourg Court, Parliament’s Joint Committee on Human Rights has found that the proportion of cases in which the UK actually lost was remarkably low, not much more than 1 per cent. Even this puny success rate has been ‘steadily reducing in recent years: it was approximately 1.3% in 2010, 1% in 2011 and .6% in both 2012 and 2013’.

Now if this were a court in Belarus or Kazakhstan a very obvious rat would no doubt long have been smelt and human rights groups would be (surely rightly) up in arms about the government’s routine 99.5 per cent success rate before its judges. Not only is that not the case with the Strasbourg Court—advocates strongly support it and certainly no one treats it as a comic camouflage for state power—but the main point of discussion in Britain is—amazingly it might be thought—about how Strasbourg is exceeding its remit, pushing the UK too far, forcing its continental laws on us, and so on. It has been Britain that has been in the van of ‘reining in’ Strasbourg with various declarations and summits and so on, behaving a bit like a football team that reacts hysterically to a referee after a match in which only one foul was given against them, a hundred appeals from the other side being ignored.   Nowhere is the mismatch between fantasy and fact clearer than in how the media presents the Strasbourg Court to British audiences and what that body in fact actually does.

And what exactly does the Human Rights Act have to say about this Strasbourg tribunal? Of course when making the Convention part of UK law it was necessary to think about what to do with all that Strasbourg stuff which told you more about what each right meant. This is what the relevant bits of the section dealing with this issue (section 2) say:

(1)        A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)        Judgment, decision, declaration or advisory opinion of the European Court of Human Rights

. . .whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

And that’s it. The intention is clearly to take into account in the sense of have regard to rather than automatically to follow all Strasbourg decisions. The fuss that section 2 has caused ever since has been the result not of its drafting but of how the courts initially approached it. In a very early case, Lord Bingham of Cornhill made an important intervention, declaring that the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. Over the years the judges allowed the permissive language of section 2 to harden into an unavoidable obligation. Even the lords were prepared (sometimes grumpily it has to be admitted) to change their minds after a Strasbourg decision or not to develop a line of argument because the European Court has already predetermined the outcome: in the dramatic phraseology of Lord Rodger of Earlsferry in an important terrorism case in 2009, ‘Argentoratum locutum: iudicium finitum—Strasbourg has spoken, the case is closed.’

Now well-meaning though all this was, it simply did not accord with the intention of section 2, as evidenced not only by its words but by the clear statements in Parliament explaining its intention (not that the judges were supposed to look at the latter, of course). So in 2009, in R v Horncastle,  the new Supreme Court mustered an unusually large bench—seven of their number—to speak with one voice through its President, Lord Phillips, recalibrating the British courts’ relationship with this important European institution:

The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

The Strasbourg Court has since broadly accepted the Horncastle approach when similar cases (not least Horncastle itself) have come before them.

The politicians may not quite have kept up with it but since Horncastle there has indeed been a new mood of—not defiance exactly—but more calm co-responsibility so far as the UK courts have been concerned. In R (Haney, Kaiyam, Massey) v Secretary of State for Justice; R (Robinson) v Governor of Her Majesty’s Prison Whatton and the Secretary of State for Justice, the authority of a Strasbourg decision was almost casually swatted aside. The norm remains that of the regarding of Strasbourg rulings as presumptively correct, especially if these are pronounced by its ‘Grand Chamber’ in which as many as seventeen of the judges gather for cases they regard as particularly important. These are to be followed more or less as a matter of course, even where the judges might not like the consequences. But the mood changes when a case like Vinter v UK comes along. Here the Grand Chamber found that whole life orders of imprisonment violated article 3’s prohibition on ‘inhuman and degrading treatment or punishment’ because the prisoners in jail for life (including those before it in this case) had no real prospect of ever being released: this could occur only at the discretion of the Secretary of State and then solely on ‘compassionate grounds’, such as, for example, a terminal illness or a serious incapacity. In R v Newell; R v McLoughlin a troupe of the most senior judges in the land gathered to lay waste to the Strasbourg decision in Vinter. The Lord Chief himself pronounced the burial rights: the law in the UK was fine by article 3 and the view in Vinter that it was not proceeded from a faulty understanding of what the relevant legislative scheme entailed. Properly explained (as the judges were now doing) the national law was not at all uncertain or unclear, and life prisoners did have a chance to get out which was wider than had been supposed and so in practice Convention compatible: this was because the Secretary of State was ‘bound to exercise’ the relevant power of exceptional release ‘in a manner compatible with principles of domestic administrative law and with article 3’. Once again the Strasbourg court has (so far at any rate) raised the white flag.

There is a large potential consequence in this Horncastle turn in UK law. ‘If so august a body as the UK Supreme Court can dispense at will with Strasbourg decisions then why should not we do the same?’ is a question that can now be asked across Europe’s other constitutional tribunals. The Council of Europe Human Rights Commissioner Nils Muižnieks has already warned a Westminster parliamentary committee that if other countries follow the UK lead in claiming that ‘compliance with certain judgments is not possible, necessary or expedient’ then this ‘would probably be the beginning of the end of the ECHR system’. In the spirit of Horncastle a new Russian law now enables the Russian Constitutional Court to declare rulings of international bodies ‘impossible to implement’: the bill entered into force when it was signed off by President Putin on 14 December 2015. The vote in the Duma (lower house) came the same day as a Strasbourg ruling against Russia on a matter related to state spying. If fictions about Strasbourg influence at home only serve to stimulate or ease the introduction of much harsher conditions for human rights abroad, then here is an export from fantasy island that collides in a most unfortunate way with brutal realities elsewhere.

Britain, Europe and Human Rights