Senior judges enter Strasbourg arena

The limits – or not – on judges in interpreting domestic law and in applying decisions from the European Court of Human Rights has been much on the mind of the judges themselves.

Delivering the Bentham Presidential lecture on 12 March, the Master of the Rolls, Lord Dyson, stated that Europe “has become a toxic and highly political subject. I regret that judges have descended into the arena. An impression has been created that the entire judiciary is critical of the European Court of Human Rights” thanks to some lectures given by “a few senior judges” who “have not claimed to speak on behalf of their colleagues or, so far as I am aware, anyone else”.


Descending into the arena himself, he declared that “the text of the Convention is admirable, the human rights enshrined in it are important and need to be protected.” The scope of the Convention has been extended in the light of “evolving social conceptions common to the democracies of Europe so as to keep it up to date”, a process which is analogous to the evolution of the common law. He had earlier in the lecture defended the role of the judges in deciding the meaning of statutes and other issues of interpreting documents, even though it was not always easy “to draw the line between a policy’s lawfulness and an assessment of its merits”.

Domestic judges are not too powerful; they develop the common law responsibly, and apply a number of “well established norms and the system works tolerably well” in balancing the question of moving the common law in a certain direction or leaving it to Parliament to change things.

Although the Strasbourg court cannot engage in a dialogue with the legislatures of the contracting states, in instances where the provisions of the Convention are expressed in rather unspecific terms the court inevitably fills in the interstices by case law. The court “sets out common ground rules of acceptable political practice” which have “strong substantive content” but allow a significant margin of appreciation to contracting states since “the court is acutely aware that it is not a representative or democratically accountable body”.

All this he felt was to the good. “The court emphasises in its case law that the Convention is intended to promote a pluralist, tolerant and broadminded society”, something which is “surely difficult to quarrel with”. “Parliament knew that Strasbourg regarded the Convention as a ‘living instrument’ when it passed the Act” and therefore Parliament gave the judges a power they had not previously possessed “to make value judgments which are different from those which, as custodians of the common law, they have been accustomed to making”.

Lord Dyson’s approach was supported by Lady Justice Arden, who delivered the Neill Lecture in Oxford on 28 February any published an article based on that. She noted an important characteristic of Strasbourg case law in its “plasticity, its genuine desire to respond to the needs of the contracting states” legal systems, in other words its receptivity of the need for change.

Receptivity is Strasbourg’s coping strategy” while plasticity is “a cause to celebrate. Strasbourg absorbs ideas from the legal systems of contracting states and it is capable of adapting itself when need arises.” Since there were only eight findings against this country in respect of 1,652 applications against the UK in 2013, we should not be concerned.

She had no time for those who worry about a “democratic deficit”. It is “a fool’s errand to seek a democratic system when assessing a supranational court”. Contracting states simply need to establish that there are “checks and balances in the system or that there are accountability mechanisms which as far as possible ensure a proper balance in the relationships”. Her own suggestion was that Strasbourg should adopt a new form of judgment, which she called a “provisional judgment”. It would not be initially binding but would give national courts “the opportunity and generous period of time to express their views on the practicality of this development” or give a time limit of say three years after which the new interpretation would be given to a certain right.

Meanwhile, in the Creaney Memorial Lecture on 26 February, Lord Justice Moses saw no problem with the ambiguous position of English judges when interpreting Convention rights: “The ability to define with anything approaching clarity seems to me a matter for optimism and not despair.” The Court of Appeal’s decision on whole life tariffs showed that “our law is not inconsistent with Strasbourg’s view of the Convention, contrary to popular superstition”. Those who argue between the “progressive protection by Strasbourg of Convention rights” and those who fear “the erosion of all that is so dear and fundamental to the British constitution” bear “many of the hallmarks of disputes as to the proper role of judges or of politicians since the dawn of judicial review”.

“Ambiguity gives scope for compromise,” he said. “Compromise seems a pretty dull goal but no-one has ever promised that the truth should be interesting.”

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