A Three-Way Tug of War

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Francis FitzGibbon QC and Abigail Bright examine how human rights law has been articulated and interpreted by the European Courts, the United Kingdom Courts and the British Government, and the political reality of “Bringing Rights Home”.

Our law is saturated with human rights principles. It is almost impossible to practise law of any kind without at least a passing knowledge of the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA). (The practice of politics is another matter.) The Act has had a palpable impact on relations between the State and the citizen in almost every sphere of interaction.

 


Human rights did not suddenly spring into existence in our law with the Human Rights Act, but the HRA did three big things. First, it made the ECHR justiciable in domestic courts. Secondly, it granted domestic remedies for breaches. Thirdly, it gave the higher courts the power to declare that statutes were incompatible with the Convention. The slogan was ‘Bringing Rights Home’ – and this is exactly what happened. It was no longer necessary to petition the Strasbourg Court when seeking redress for a breach of a protected right. In practice, the three-way relationship between UK courts, government, and Strasbourg, has not always been smooth. However, the architecture of the relationship does not give Strasbourg unlimited power over British law, as some opponents of the ECHR claim. Lord Reed described the relationship between those three, in Osborn v Parole Board [2013] UKSC 61.

“The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states…the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system... The importance of the [Human Rights] Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.”

The Act has channelled a distinct and comprehensible set of human rights guarantees into our law, through the ECHR.

The ECHR founds a minimum, universal standard of protection with a guarantee that certain forms of behaviour by ‘public authorities’ will not be tolerated. The HRA is subtle, pragmatic and thoroughly British in character: the power to declare that legislation is ‘incompatible’ is not a power to strike it down; it means that Parliament has to reconsider. Hence, Parliament remains sovereign, but having adopted the ECHR into law, it must ensure that the laws it passes uphold those minimum standards. Of the 28 declarations of incompatibility made since 2000, 20 have survived appeal and have caused Parliament to amend and improve the law. It is not Strasbourg that brings about these changes, but our own Parliament, when prompted by the courts. And the HRA does not set up the Strasbourg Court as a higher authority whose decisions must be treated as binding precedents: our courts must merely ‘take account’ of Strasbourg’s judgments. Nowhere was this better demonstrated than with the public exchange between the UK domestic courts and the Strasbourg Court, in the Al-Khawaja; Tahery line of appellate case law. The dialogue produced a workable solution to a problem in the use of hearsay evidence.

Conventions

Was Lord Reed in Osborn v Parole Board looking ahead to a post-HRA world? Parliament, being sovereign, can repeal the HRA, and the government can even withdraw the UK from the ECHR. But while we remain in the European Union, we are bound by EU human rights instruments, such as the European Charter of Fundamental Rights and the Refugee Qualifi cation Directive, and withdrawal from the EU would not affect our obligations under myriad other international human rights conventions, such as the UN Conventions on Torture and the Rights of the Child. The human rights bell was rung long ago, and it can’t be unrung. It is paradoxical that people who should know better vilify the HRA and the ECHR at home, while telling the rest of the world to uphold human rights standards in their own countries.

Lord Bingham’s challenge to those who would be rid of the ECHR – name the protected right you would like to give up – is unanswerable and remains unanswered. A ‘British Bill of Rights’
would probably not look much different from the ECHR, and it would be difficult to see how the Courts could bar submissions based on the ECHR where they are relevant to human rights issues. These rights belong to us all. They give us some protection against wrongdoing by the State. Those individuals who are subject to the coercive parts of the State are most likely to feel they are being treated wrongfully – prisoners, the mentally ill, asylum seekers – so it is not surprising that they claim protection under the ECHR. It could be said that they fight their battles on behalf of all of us, and their cases hold up a mirror in which we can see how we behave to those who are, variously, the least popular, the weakest, and the most despised.

The three-way relationship at work: prison sentencing...

Prison law often lays bare the tensions between UK courts, the UK government, and Strasbourg. According to Sir Stephen Sedley (in the London Review of Books 12/09/13), it is “an area of legal practice which since 1980 has let much needed daylight into a system which until then stood largely outside the law”. For a potted history of the development of prisoners’ rights law, see, generally, R v Home Secretary, ex p Doody [1994] 1 AC 531, at 551-553, per Lord Mustill. It is also a classic pre-HRA case of the assertion of human rights in the language of the common law and principles of natural justice. The House of Lords rejected the arguments that judges were best placed to decide the question of minimum terms, and there should be symmetry between discretionary and mandatory life sentences as both types of sentence share punitive and protective stages. The appellants won on the issue of the requirement for procedural safeguards, with a simple and intuitive submission: in determining the punitive period, the Home Secretary was exercising a quasi-judicial function, and natural justice requires judicial-like safeguards. Any judicial review of a decision of the Home Secretary could only be effectively exercised where the safeguards proposed were in place. The rules of natural justice applied “partly from the obvious desire to be told the reason for a decision so gravely affecting his future, and partly because he hopes that once the information is obtained he may be able to point out errors of fact or reasoning and thereby challenge the Secretary of State to change his mind, or if he fails in this to challenge the decision in the courts” (see 551 of the judgment). The Home Secretary duly gave effect to these procedural requirements.

A series of important, Strasbourg-based decisions followed: Thynne, Gunnell & Wilson v UK (1991) 13 EHRR 666 (continued detention past the tariff period re: justification on grounds of risk) and R v Secretary of State for the Home Department Ex p. Venables [1998] AC 407.

In the recent case of R v Oakes and others [2013] 3 WLR 137, whole-life orders were challenged on human rights grounds, specifically: that a whole life order was incompatible with Article 3. Judge LCJ dismissed the appeal but (at 141 of the judgment) noted that this question “had been well debated” and that “there are those who view the whole life order with grave disquiet”, but that “contrary views have been expressed by eminent jurists.” The judgment provides important clarification as to the specific circumstances where a whole life order would not offend Article 3. Only one appellant succeeded in having his whole life order commuted to a term of some forty years. The Strasbourg Court was next to consider Vinter v UK (Applications nos. 66069/09, 130/10 and 3896/10, Grand Chamber, Judgment, 9 July 2013), in which Strasbourg found that the current whole life regime violated Article 3. Vinter made clear that it is a matter for domestic courts to institute a system of review whereby risk can be reviewed periodically such that every prisoner – no matter how heinous their index offending – is entitled to such review. This is consistent with the Court in Oakes and others having observed that a whole life term conceivably remains justified in rare cases, on grounds that the function of punishment requires it.

... and prisoners’ rights to vote

The continuing differences of opinion between Strasbourg and the UK over prisoners’ voting rights have led to some lively and emotional statements by politicians. But Strasbourg did not
tell the UK to give every prisoner the vote. In the case brought by a lifer, it gave a more nuanced ruling: a “blanket ban” on all prisoners was in breach of article 3 of Protocol 1 of ECHR (free elections), but it fell to national parliaments to determine which categories of prisoners can and cannot vote (Hirst v UK [2005] ECHR 681). There is room for debate over whether the Court strayed into matters of policy rather than law, but so far the noise has drowned out the subtlety of the decision. In any event, on 16 October of this year, Lord Mance’s judgment in an appeal brought by two convicted murderers, Peter Chester and George McGeoch ([2013 UKSC 63), should have made matters clear. Lord Mance made abundantly clear that EU law did not provide an individual right to vote, and found there was no need to depart from the decision in Hirst v UK in respect of rights under the ECHR: “Eligibility under EU law is a matter for national parliaments.” Whether his judgment will quieten the diehards remains to be seen, but David Cameron said it was ‘victory for common sense’.

No British opt-out

Meanwhile, the Charter of Fundamental Rights of the European Union waits in the wings – or has perhaps come on stage, if the decision by Mostyn J in R(oao AB) v SSHD [2013] EWHC 3453 (Admin) is correct. On 7 November 2013 he ruled that a 2011 decision by the European Court in Luxembourg struck down the British opt-out from the Charter:

The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.

Whatever shape the future dispensation of human rights law takes in the UK, the frictions between the Courts, the executive, and Parliament will continue, and so they should in a healthy, mature democracy that claims to uphold the rule of law.

Thanks are owed to Toby Collis, Solicitor (Australia) and researcher to Geoffrey Robertson QC, author of ‘A Life(r)s Work: Edward Fitzgerald QC and Reform of Life Sentences’ (2013) Issue 5, European Human Rights Law Review 532.

Francis FitzGibbon QC & Abigail Bright Doughty Street Chambers

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Abigail Bright

Abigail, Doughty Street Chambers, specialises in extradition. She was recently led in a successful challenge to a Moldovan request, discharge having been ordered pursuant to the Article 3 challenge alone. The Court relied on two final judgments on Article 3 of the European Court of Human Rights against Moldova. Moldova declined to exercise its automatic right of appeal against the ruling.

Francis Fitzgibbon QC

Francis (Call 1986, Silk 2010) is a specialist criminal silk at Doughty Street Chambers, with
extensive experience in homicide, fraud, drugs cases and other serious crime. Francis sits as an Immigration Judge and is an accredited mediator. He is a contributing author on A Practitioner’s Guide to the Law and Regulation of Financial Crime (Sweet & Maxwell 2011).