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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Royal Marine sentenced for murder

On 11th November, the case of "Marine A" (as he was then to be known) was covered - Murder in Helmand.   The Court Martial has imposed  a sentence of life imprisonment with the minimum term of imprisonment before eligibility for parole set at 10 years (less some time on remand).  The sentencing remarks of His Honour Judge Jeff Blackett are here.  In addition, the Marine is to be reduced to the ranks and dismissed with disgrace from Her Majesty's service.

The sentencing remarks state that the court felt it important to send out a strong deterrent message.  Service personnel who commit crimes of murder, or other war crimes or crimes against humanity while on operations will be dealt with severely.  The deterrent message was also intended to reassure the international community that allegations of serious crime will be dealt with transparently and appropriately. 
This message was, in the court's view, delivered by the sentence of life imprisonment (mandatory for murder).  Setting the minimum term reflects the seriousness of the offence while taking account of the unique and special circumstances of the case and personal mitigation.

Interestingly, Judge Blackett also commented that the defendant had been judged by a 'Board made up of Service personnel who understand operational service because they too have experienced it. That is one of the strengths of the Court Martial system.'

An order of the Court Martial permitting the marine to be anonymous was lifted - Judiciary UK - Orders of 5th December 2013    Fuller reasons are to be given at a later date - See now R v Marines A to E [2013] EWCA Crim 2367 (17th December 2013).
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... and now a look at Lord Judge's entry to the competition

Almost as soon as one speech touching on human rights is digested, another appears.  This time it is former Lord Chief Justice, Lord Judge who delivered an address at University College London - 4th December 2013 - Constitutional Change: Unfinished Business

In fact, Lord Judge's speech is wide ranging and his views about the European Court of Human Rights come in the final paragraphs.

In the first two-thirds of the speech, Lord Judge asserts that all power must be based on law and that independence of the legal professions, press and media and also the police is essential to the maintenance of the rule of law.  The Judges are the guardians of the rule of law.  Lord Judge notes the influence of the executive over Parliament (para 8) and he reiterates the traditional (Diceyean) theory of the sovereignty of Parliament (9). He is clearly highly concerned at the way in which various changes, affecting the administration of justice, have been brought about with some proposals being deliberately withheld from the judiciary (15 and 18).  He deprecates
the fact that the judiciary no longer has as influential a voice in government as was the case before the Constitutional Reform Act 2005 reformed (and weakened) the office of Lord Chancellor (20).    He goes further and argues strongly for the Lord Chief Justice (as Head of the Judiciary) to be required to agree with funding proposals (28-30) (though, in the event of disagreement, Parliament would have the final say)  and he urges reconsideration of the prohibition on the Lord Chief Justice speaking in the House of Lords (17 and 32).

Turning to matters European, Lord Judge noted that our constitutional arrangements have bestowed authority on judicial bodies in Europe (3).  He sees little of difficulty with the Court of Justice of the EU making judicial decisions in relation to economic matters (39).  His concern lies with the European Court of Human Rights.

Lord Judge asks - what do the words "must take into account" mean in the Human Rights Act 1998 s2(1).  They cannot mean that English courts are required to apply or follow matters such as judgments of the European Court of Human Rights. In para 41 Lord Judge said:

'Personally, I have never doubted, and have spoken publicly to the effect that the words mean what they say. To take account of the decisions of the European Court does not mean that you are required to apply or follow them. If that was the  statutory intention, that would be the language used in the statute. The principles of stare decisis, that is, the principle that superior courts bind inferior courts, principles which govern the way in which our domestic courts work, has been erroneously applied to the decisions of the Strasbourg Court, in effect, with a few limited exceptions, the suggestion is that our courts, if not bound to do so, should follow the Strasbourg court.'

He then turns to the "living instrument" doctrine (42).

'In my view, the Strasbourg Court is not superior to our Supreme Court. It is not, and it is important to emphasise, that it has never been granted the kind of authority granted to the Supreme Court in the United States of America, authority, let it be emphasised, which is well established in the constitutional arrangements of that country. Nevertheless, although not in any sense a Supreme Court of Europe, which, I repeat, does not consist of a federation of states as the United States of America does, by using the concept of a “living instrument”, the Court appears to be assuming, or seeking to assume the same mantle.'

Here, there is no balance.  There is no mention of the benefits which the living instrument doctrine brings to human rights development and that such developments have been carefully handled by the E Ct HR so that the court has followed, rather than led, developments in social attitudes across European Convention States (and, sometimes, elsewhere).

Next in the crosswires was the recent decision of the E Ct HR in Del Rio Prada v Spain.  At para. 44 Lord Judge said (link added):

'Let us now consider a very recent decision, Del Rio Prada v Spain, a decision of the Grand Chamber given on 21 October 2013, where the Court referred to the “progressive development of the criminal law through judicial law-making” as a well entrenched and necessary part of the legal tradition in the convention states in a way which suggested that the Court itself was vested with the power progressively to develop the criminal law throughout Europe. Later in the judgment, addressing Article 46 of the Convention, the Grand Chamber unequivocally stated that its effect was that when the Court finds a violation of the Convention, the state against whom the finding is made is under a “legal obligation” not only to pay the sums awarded by way of just satisfaction, but to take individual or, if appropriate, “general measures in its domestic legal order to put an end to the violation found by the Court and to redress its effects”. Notice, this is not a recommendation. Although the judgment then acknowledges the freedom of the state to choose the means by which the “legal obligation” will be discharged, it is left with no alternative, and the Court may order the particular measures required to remedy the violation. All this is said to arise from a Convention obligation. This is no longer a question of the meaning of statutory construction of s2(1). If this observation of the Grand Chamber means what it says, the court in a foreign jurisdiction is asserting an unappealable right to impose legal obligations with which this country, and ultimately every country in Europe, must comply.'

It is correct to say that there is no authority for the E Ct HR to progressively develop the criminal law throughout Europe.  (Interestingly, it is the EU which has tended to be at the forefront of any such process - e.g. European Arrest warrants etc).  The E Ct HR may only adjudicate in relation to the specific rights granted by the convention.

The convention is an international treaty and, in international law, the United Kingdom is bound by judgments to which it is a party (Art 46 of the Convention).  Surely then, the UK is required by this obligation to take measures in its domestic legal order to put an end to the violation found by the Court and to redress its effects.  Of course, the UK may choose not to do this.  In that event, the UK will breach its international law obligation and must be willing to accept whatever consequences arise.

The Human Rights Act 1998 treads a fine line between the sovereignty of Parliament and convention rights.  The power of Parliament to enact any legislation it wishes remains and that includes legislation which is contrary to the European Convention.  If the courts find an incompatibility then there is the power in the HRA 98 to make a declaration of incompatibility and then the matter rests with Ministers and Parliament.  A declaration of incompatibility does not, in itself, alter the law.

Lord Judge then goes on to suggest amendment of section 2(1) of the HRA 98.  At para 46:

' .... It would, I believe, make sense for s2(1) of the 1998 Act to be amended, to express (a) that the obligation to take account of the decisions of the Strasbourg Court did not mean that our Supreme Court was required to follow or apply those decisions, and (b) that in this jurisdiction the Supreme Court is, at the very least, a court of equal standing with the Strasbourg Court.highly...'

One might have thought that suggestion (a) was unnecessary because "take into account" is clear enough.  Also, Lord Judge's suggestion would probably not change the fact that the courts would still generally choose to follow a consistent line of Strasbourg decisions.  Why?  Simply because it normally makes good sense to do so since a decision of the E Ct HR is, as Lord Sumption said in Chester -  '... more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject.'

When it comes to the meaning of the Convention itself, it IS the E Ct HR which gives definitive rulings.  It seems inherent in section 2(1) of the HRA 98 that the Supreme Court of the UK could decide to go against E Ct HR decisions.  In Chester, the Supreme Court asserted its right to do this but would only do so in certain circumstances.  Suggestion (b) therefore seems legally unnecessary even if it might be attractive to some politicians.

Finally, it is interesting to speculate about what would happen if the Supreme Court were to move further away from the Ullah principle and begin to go against Strasbourg decisions more frequently.   What would it put in place instead of the Strasbourg ruling?   The Strasbourg decision says "X" but we will do "Y".  On what basis would "Y" have been chosen as the preferred solution.  Might choosing "Y" not then leave the Supreme Court open to accusations of judges legislating?   

Relevant Links:

Jerry Hayes - Shades of Grayling ...


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My thoughts (as a citizen) on Lord Sumption's Azlan Shah lecture

On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   A further lecture on human rights was delivered in Warwick by Lady Hale (Deputy President of the Supreme Court) on 28th November - Lady Hale at the Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

These speeches / lectures are not only legally informative but they reveal something of the personalities of the speakers and their attitudes to the vastly important topic of human rights protection as it applies both in Europe and in the UK.  Given the fact
that these speeches are by senior judges, politicians are likely to latch on to them when they are thought to support a particular political stance.  It is of course no secret that some members of the present government do not come across as particularly supportive of the present human rights arrangements - see, for example, Theresa May and Chris Grayling on Human Rights - (Public Law for Everyone 30th September 2013)..  Thus, judges enter risky territory when making speeches of this nature.  They must not only maintain their judicial impartiality but must be seen to do so.

Lord Sumption -  The Limits of Law.
 
At one point in his lecture, Lord Sumption said this:

'The text of the Convention is wholly admirable. It secures rights which would almost universally be regarded as the foundation of any functioning civil society: a right to life and limb and liberty, access to justice administered by an independent judiciary, freedom of thought and expression, security of property, absence of arbitrary discrimination, and so on.'  He added:  'Nothing that I have to say ... is intended to belittle any of these truly fundamental rights.'

At another point, Lord Sumption said:

'Personally, if I may be allowed to speak as a citizen, I think that most of the values which underlie judicial decisions on human rights, both at Strasbourg and in the domestic courts of the United Kingdom, are wholly admirable.   But it does not follow that I am at liberty to impose them on a majority of my fellow-citizens without any democratic process.'

Here is the nub of Lord Sumption's problem with the present system of human rights protection.  He views it as having gone too far to the detriment of political solutions to rights problems.  For Sumption, the European Court of Human Rights (E Ct HR):

' ... has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying.  It has over many years declared itself entitled to treat the Convention as what it calls a 'living instrument'.  The way that the Strasbourg court expresses this is that it interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date. Put like that, it sounds innocuous, indeed desirable. But what it means in practice is that the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty. A good example is the steady expansion of the scope of Article 8. The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court. The effect of this kind of judicial lawmaking is in constitutional terms rather remarkable. It is to take many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transform them into questions of law to be resolved by an international judicial tribunal.'

Here, there is much to take issue with and in a post of this nature I must confine my comments to just a few points. 

a) The Sumption lecture lacks balance in that it fails to put the case FOR the living instrument doctrine. I touched upon the FOR case in my previous post (here) and need not repeat it.  I gave an example - (gender recognition) - of how the living instrument doctrine enabled the law to develop and to eventually encourage democratic parliaments to take action which they might well not have done otherwise.  The living instrument doctrine is not applied in as cavalier a manner as Sumption's lecture might suggest.  Typical Strasbourg judgments are replete with references to numerous international rights documents and the practices of other democratic states - as the prisoner voting case itself illustrates - Hirst v United Kingdom (No.2) 2005.    Perhaps to a point the E Ct HR is reflecting its own view BUT it is a view based on evidence of actual practice as it has developed across Council of Europe States and elsewhere.  This is far from being the personal opinion of individual judges.

b)  ' ... so as to reflect its own view of what rights are required in a modern democracy.'  Sumption goes on to illustrate his point by citing Article 8:

Article 8 – Right to respect for private and family life
 
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It is true that this has seen a remarkably extensive application to actual cases.  Nevertheless, it is not difficult to see how this right will become engaged in many of the situations where Sumption is critical of its application:  the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant etc.

Speaking here as a citizen, I find it difficult to support Sumption's view that - 'None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.'

The very text of the Convention requires the judges to apply Convention rights to actual cases and "express language" is neither required nor desirable to enable the right to be upheld in relation to matters such as the deportation of an individual with a family etc.  The writers of the Convention deliberately avoided the excessively detailed approach to drafting which characterises UK legislation.  A straightforward statement such as - "Everyone has the right to respect for his private and family life, his home and his correspondence" - is a clear invitation to the E Ct HR (itself created by the convention) to apply that right to the multitude of factual situations which arise and many of which could not be foreseen.  Indeed, in the future, new situations will inevitably arise.  Should we have to await a cumbersome process of amending the Convention when 47 States are involved?

c)  The Sumption view that rights should only be developed via political processes is itself problematical.  Political processes are not always minded to address matters of concern, especially where the matter affects a relatively small number of individuals.  Furthermore, politicians often become highly concerned with State power (or their legal authority as an executive) and, in doing so, fail to consider the impact of their policies on the individual.  It is precisely here where rights protection becomes important since the Convention system stands between citizen and State. 

d)   Another problem inherent in the democratic process is that the political party in power will consider that it has a mandate to do certain things.  This has led to many 'political footballs' in the UK: such as Education and Health Care.  Political Party A does this and then Party B gets into power and does that.   The time taken over such political battles tends to leave little time for proper attention to protection of rights.  To my mind, the Sumption view of the democratic process appears to be somewhat idealistic.  He seems to consider that it will inevitably develop rights and thereby make it unnecessary to have an approach to development of rights such as the living instrument doctrine.  Even if he is correct, there could well be a very lengthy time lag before politicians are persuaded that there will be votes in making a change or, perhaps more likely, votes to be lost if they do not act.  Furthermore, they may choose not to act at all.

e) Sumption also uses the prisoner voting issue to challenge the E Ct HR.  He sees a democratic deficit and illustrates this by reference to the Hirst and Scoppola judgments.  'In both cases, the Court’s reasoning revealed its limited interest in the democratic credentials of such policies.'   However, his lecture might usefully have pointed out that it is only the total ban which the court found to be objectionable and, in doing so, the court examined practices across Europe.  Even a cursory glance at the Scoppola decision will show that the E Ct HR did not find a problem with the Italian system which is more restrictive than the UK policy in that it permits, in some instances, a ban on voting to continue after release from imprisonment. It remains fully open to the UK Parliament to introduce a quite minimalistic compliance with Hirst No.2 and, indeed, this is currently under consideration.

In his lecture, Sumption said that in R (Chester) v Secretary of State for Justice (previous post) the Supreme Court held that it was bound to follow the law repeatedly declared by the Strasbourg court.  Such a simplistic statement would attract criticism from any examiner of a first Law Degree answer paper.  Why?  Because it is not an accurate summary of the Supreme Court's decision which recognised that in some situations the Supreme Court might not follow even a consistent line of Strasbourg decisions.  This would be when the Strasbourg decision(s) challenged a fundamental feature of the laws of the UK.

f)   It is, I think, instructive to consider what Lord Sumption said at para 121 of his judgment in Chester.

'A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.'

That is, of course, a correct statement of the law as developed from the Ullah principle.   However, in his lecture, Sumption implies strongly that the judges ought to have agreed with the Attorney-General when he asked the Supreme Court not to apply Hirst and Scoppola.  In Chester, it was open to Lord Sumption to have given a dissenting judgment accepting the Attorney's position.  He did not do so.

Finale:

There is much more in Lord Sumption's speech but, speaking as a citizen, I have made the points that I wish to make.  The future of human rights protection is in the balance in this country.  I do not have faith in many modern politicians to bring in adequate protections in the event that they get their way and take us out of the European Convention.  It is, to say the least, very doubtful whether there would be adequate protection in the event of withdrawal from the convention and repeal of the Human Rights Act 1998 - (on this see Oxford Human Rights hub - Professor Brice Dickson).  Ultimately, one has to ask why would a politician wish to hazard rights protection.  The answer lies, to my mind, in a single word: POWER.

I will look at the views of Laws LJ and Lady Hale in a later post.

Sumption and Laws - (1) - Background Notes

Other links:

UK Constitutional Law blog - George Letsas - Lord Sumption's attack on Strasbourg: More than political rhetoric?

The above post was reproduced by LEGAL BUSINESS on 10th December (Human Rights Day 2013)
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Lady Hale joins in ~ speech at Warwick 28th November ~ and the Attorney-General's view on 'Europe'

Following hard on the heels of Lord Sumption and Lord Justice Laws, Lady Hale (Deputy President of the Supreme Court) has joined the fray on human rights.  Here is a link to her speech at Warwick on 28th November.   Here is an antidote to the speeches of her male judicial colleagues.

Lady Hale at the Warwick Law Lecture 2013 (PDF)
What’s the point of human rights?
28 November 2013

The Attorney-General has spoken about The future of Europe: Opportunities and Challenges - (Published 3rd December 2013).  Attorney General says that he believes that European institutions should ensure they abide by the rule of law.
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Sumption and Laws ~ Background Notes

Lord Sumption

Laws LJ
We have become accustomed to various government Ministers raising questions about the European Convention on Human Rights (E Conv HR), the European Court of Human Rights (E Ct HR) and the future of UK human rights protection.  See, for example, Theresa May and Chris Grayling on Human Rights - (Public Law for Everyone 30th September 2013).

Some judges are now expressing (extrajudicially) their opinions about what the proper role of the European Court of Human Rights should be.  On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.



I hope to consider the two speeches in a subsequent post but, before doing so, it is worth recalling certain basic matters relating to the E Conv HR to which some 47 States (with some 820 million people) have acceded.  This post also takes a brief look at how the E Ct HR interprets and applies the convention.

The European Convention - some basic points:


a)  The Preamble to the Convention (which is relevant to interpretation of the Convention) refers to 'securing the universal and effective recognition and observance of the rights' in the convention.   'Maintenance and further realisation of human rights and fundamental freedoms' is seen as a method of achieving greater unity between Council of Europe members.  The signatory States affirm their 'profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an affective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.'


 b)  Article 19 establishes the court to 'ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto ...'  Art 32 - The jurisdiction of the court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto ....   Art 35 - All domestic remedies must be exhausted before the court may deal with a matter.  (This is based on the notion that recourse to the court is a final step when national courts have not, for whatever reason, given satisfaction to the applicant).  Art 45 - reasons must be given for judgments.  Art 46 - States are bound by the final judgment of the court in any case to which they are a party. 

The interpretative obligation in the Human Rights Act 1998:

The Human Rights Act 1998 does NOT state that courts in the UK must abide by decisions of the E Ct HR as if they are binding precedent.  However, courts in the UK are mandated to 'take into account' judgments, opinions and decisions set out in section 2 of the Human Rights Act 1998.  Situations can therefore arise where the E Ct HR decides "X" but the UK court is only mandated to take "X" into account.  At this point, the principle set out in R v Special Adjudicator ex parte Ullah [2004] UKHL 26 enters the fray.  Lord Bingham said (at para 20):

'In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.'

This statement (the Ullah principle) remains good law but the elements highlighted in purple are worth noting.  The principle recognises the non-binding nature of Strasbourg case law but requires UK courts to abide by it in the absence of 'special circumstances' or 'strong reason.'  The UK courts must keep pace with Strasbourg 'as it evolves over time.'


The phrase 'over time' is perhaps a reference to the fact that Strasbourg regards the Convention as a "living instrument" which has to be applied in the light of conventional attitudes - e.g. the meaning of 'family' has developed over time as a result of this doctrine. See Gresham College 16th June 2011 - Beanstalk or living instrument? How tall can the European Convention on Human Rights grow?

Note also the recent Supreme Court decisions in Chester and McGeogh where the Supreme Court followed (with some detectable reluctance in some of the judgments) the line of decisions of the E Ct HR Grand Chamber relating to prisoners and voting - post of 21st October 2013.

Interpretation of the Convention:

a)  Much has been written about how the convention should be interpreted.  The principal aim of the E Ct HR has been to ensure that the 'object and purpose' of the convention is fulfilled.  Part of this entails, as the Preamble indicates, the maintenance and further realisation of human rights and fundamental freedoms.  Given that the essence of the Convention is protection of individual human rights from violation by States, any limitations or qualifications of the rights set out in the Convention are to be narrowly construed - e.g. Marckx v Belgium (1979) 2 EHRR 330 para. 31.

b)  The E Ct HR will endeavour to make rights practical and effective and not theoretical or illusory: Marckx v Belgium and also Golder v UK (1979) 1 EHRR 534.

c)  The E Ct HR has developed its own interpretation of certain terms used in the convention.  For example, 'criminal charge' and 'civil rights and obligations' in Article 6 are not construed according to national classifications.

d)  More controversial is the living instrument (or dynamic interpretation) approach.  The convention need not, and should not, be interpreted as it would have been in the 1950s.  In Tyrer v UK (1978) 2 EHRR 1, the phrase 'living instrument' appeared.  The convention has to be interpreted in the light of present day conditions.  It almost goes without saying that social attitudes to many matters have changed markedly whilst the convention has been in existence.  A good example of the development of the convention through the living instrument approach is the treatment of transsexuals - see the line of cases from Rees v UK (1987) 9 EHRR 56, via Cossey v UK (1990) 13 EHRR 622 and Sheffield and Horsham v UK (1998) 27 EHRR 163 to Goodwin v UK (2002) 35 EHRR 18.  Over those 15 years, the case law of the E Ct HR came to recognise that lack of legal recognition of a person's new gender was a violation of Article 8.  Developments in the law such as this are now seen as beneficial and have been accepted by the UK Parliament - Gender Recognition Act 2004. 

The living instrument approach has come under fire recently from politicians and also in some judicial speeches - notably that of Lord Sumption - to which I shall return in a later post so I will save his arguments for that post.

e) A further interpretative aid is recourse to other human rights instruments and to practices within democratic States.  An appropriate example of the court doing this is the prisoner voting case itself: Hirst v United Kingdom (No.2) 2005.  Here, the E Ct HR looked at relevant domestic law and practice; a considerable number of relevant international documents such as the International Covenant on Civil and Political Rights; law and practice in other Council of Europe States and law practice in some non-Council of Europe States - e.g. Canada..

Earlier posts:

Domestic Law and the European Convention on Human Rights - No. 4 - with links to 3 other posts looking at how the E Ct HR has considerably influenced, in a beneficial way, English law.


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A mother was given a caesarean section while unconscious

Updated 4th December

Christopher Booker in Sunday Telegraph (1st December 2013) - "Operate on this mother so that we can take her baby" - 'A mother was given a caesarean section while unconscious - then social services put her baby into care.'  The mother had been "sectioned" under the Mental Health Act 1983 s.3.

Some more light is thrown on the case by a response from Essex County Council dated 2nd December 2013.   According to this response it was the  Health Trust's clinical decision to apply to the court for permissions to deliver her unborn baby by caesarean section because of concerns about risks to mother and child.  (The application would have been to the Court of Protection).

A fuller article about the case is at Marilyn Stowe Blog where caution is urged in relation to comments -

'Unless and until the full judgment is released, (which I hope it is) we will find out exactly what did happen and until then I would urge no wild speculation, no unwise comment and only the greatest caution. It is not my experience that a High Court judge would make any order unless absolutely satisfied such action was in the best interests of both mother and child and there was no alternative. Furthermore that sectioning a patient is also never done unless there is the greatest need ....'

Of course, the matter raises acutely the need for judgments to be published in all cases by the Court of Protection so that the public can see the reasoning for particular decisions.  Many judgments are available via Bailii - Court of Protection.



Mother is seeking the return to her of the child and the Judicial Office has stated that these latest court proceedings are being transferred to the High Court ...




Other blogs:

Another look at this case is at Pink Tape blog - Never let the facts get in the way of a good story, eh?   See also Tues 3rd : Judgment of His Honour Judge Newton in care proceedings (final care and placement orders) now released on bailii (P (A Child) [2013] EW Misc 20 (CC) (01 February 2013)).

Suesspicious Minds blog - Untimely ripped 

Another day in the Court of Protection by John Bolch

Previous posts:

Court of Protection - an overview 25th April 2013 and links therein.  Little is known by the general public about the Court of Protection.  It was created, from 1st October 2007,  by the Mental Capacity Act 2005 s45.  It has the same powers, rights, privileges and authority as the High Court.  A general description of the court's work is available via the Judiciary website.  Court of Protection Rules provide that the court usually sits in private (Rule 90).  The court may authorise publication of information about proceedings but, in doing so, is entitled to insist on the parties remaining anonymous. Many judgments have been published.

Update 4th December 2013:
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Weekend reading ~ a "conference" of speeches

3rd December - Updated with further links

Whether or not there is a collective noun for "speeches" - (perhaps a "conference" of speeches?) - there have been many in recent days. 

Lord Judge - former Lord Chief Justice - Bar Council Annual Law Reform Lecture 21st November - The evidence of child victims: the next stage

Speeches by Supreme Court Justices:

Lord Sumption - 27th Sultan Azlan Shah Lecture, Kuala Lumpur - The Limits of Law

Lord Justice Laws - Hamlyn Lectures 2013 - Lecture 3 Common Law and Europe  The first two Hamlyn lectures are entitled - 1. Common Law and State Powre - 2. Common Law and Extremism.

In an article, Lord Neuberger (President of the Supreme Court) expressed views about short term prison sentences sentencing - Daily Mail 26th November - "One of the country’s  most senior judges provoked fury last night when he criticised short jail sentences for interfering with the home lives of criminals.  Lord Neuberger, president of the Supreme Court, said he rejected the idea that a couple of months behind bars – and what he called ‘the clang of the prison gates’ – could help bring criminals to their senses.  Instead, he warned such sentences ‘can be disruptive’ for the prisoner’s job and home life. The judge made his comments after visiting Holloway women’s prison in North London."

Sir Rabinder Singh - The Unity of Law - or the dangers of over-specialisation - Society of Legal Scholars Centenary Lecture 28th November.

Speeches by serving judges are, of course, extra-judicial matters and are not necessarily indicative as to how the particular judge would decide any actual case.  However, speeches reveal not only information about the law and legal practice but also reveal something of the personality and attitudes to law of the speaker.  Things have moved on considerably from the days of Lord Chancellor Kilmuir - (post of 2nd December 2011).  At the present time, there seems to be an excess of speech-making and it may (emphasis on "may") be that  certain judges are risking an appearance of aligning themselves with some members of the present government who undoubtedly wish to limit the influence within the UK of bodies such as the European Court of Human Rights.  Such an "impression" would be singularly unfortunate.   I leave it to the reader to look at the speeches and form a judgment on this point.

Links:

27th November 2013 - The Guardian - Joshua Rozenberg - Laying down the Laws: human rights court shouldn't have the last word.

2nd December 2013 - Francis FitzGibbon QC - Conspicuous Sumption

3rd December - Spare us from radical judges

3rd December - Thinking Legally - Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it



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Scotland ~ Independence White Paper

Sgurr na Banachdich, Skye - 3166 ft
On 18th September 2014 (the 700th anniversary of the Battle of Bannockburn - see post of 26th January 2012), a referendum will be held in Scotland to enable the Scottish electorate to decide whether to proceed to an independent Scotland.  If there is a YES vote then the aim is to create an independent Scotland from 24th March 2016 (BBC - Proposed date for Scottish independence named).  24th March 1603 was the date of the Union of the separate Crowns of England and Scotland.

The Union of England and Scotland dates from 1st May 1707 - see  Act of Union with Scotland 1706 and the Act of Union with England Act 1707 ). Those Acts stated: 'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain And ...'   Independence would bring to an end this historic Union which has withstood the fierce furnaces of major events for over 300 years.

The Scottish government  has put forward the case for independence in a White Paper - Scotland's Future (670 pages).  here is some of the media reaction to the White Paper:  BBC; The Scotsman; The Telegraph; Daily Mail. 



There is a considerable amount of material to be considered.  Numerous questions arise and the answers are not necessarily very clear.  Clarity is essential so that voters are able to make a fully informed decision.  There is danger here of a lot of political "spin" tending to obscure the difficulties.  Hence, more on this will follow.  As to whether the pathway to independence after even a YES vote will be difficult see The Guardian: Alex Salmond faces Westminster hurdles over an independent Scotland

Previous posts:

7th May 2011 - No to AV ... but what lies ahead?

26th October 2011 - Scotland and the EU ~ a tricky point

10th January  2012 - Scotland: we need to talk

21st January  2012 - Scotland's Constitutional Future: an influential Scottish voice

26th January  2012 - Scotland's (and UK's) future

2nd October  2012 - Scotland - Constitutional Futures Forum

27th October 2012 - Scotland and the EU - No.1

31st October 2012 - Scotland and the EU - No.2

Relevant legislation:

Scotland Act 1998 (Modification of Schedule 5) Order 2013 - an Order in Council made under powers in the Scotland Act 1998 sections 30 and 113.

Scottish Independence Referendum (Franchise) Act 2013 - (Scottish legislation)

Edinburgh agreement - October 2012

Scotland - 8th October 2013 - analysis paper on defence

Additional:

Brian Barder blog - Give Scotland the option of what most Scots want - full self-government within the UK
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    HS2 ~ Hybrid Bill published

    There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013.   It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network.

    A Bill, in two parts, has now been presented to Parliament - see Department of Transport.   The Bill may be read via the website of Parliament - High Speed Rail (London - West Midlands) Bill 

    Bill (as introduced) - The Bill has 65 sections and 31 very detailed Schedules.


    The Department of Transport said:


    'HS2 will take a major step forward today (25 November 2013) with publication of the Bill for phase one of the country’s new railway between London and Birmingham.  The hybrid Bill, effectively the planning application for the scheme, will give the government the powers to construct and operate the railway. It will also give those affected by the proposed line the opportunity to petition Parliament, both for and against the proposals, and have their case heard by a committee of MPs.'

    An interesting feature is that the Bill is a HYBRID Bill.  Bills are usually either Public Bills (e.g. the High Speed Rail (Preparation) Bill itself ) or Private Bills (see Private Bills 2009-10) but a Hybrid Bill  has features of both.  Private Bills  only change the law as it applies to specific individuals or organisations, rather than the general public.

    Opposing a Bill may not necessarily be as easy for individuals as perhaps the Department of Transport announcement suggests.  Opposition may require technical analysis as well as the need to address some difficult legal issues.  For example, there will be legal issues relating to compulsory purchase of land, compensation for such purchases and planning law.  Furthermore, much of the Act is concerned with overriding matters such as consecrated land and disapplying controls under various local Acts of Parliament relating to Oxfordshire, Staffordshire and West Midlands.  The right of a petitioner to be heard in opposition to a private or hybrid bill (locus standi) depends on whether his personal property or interests stand to be adversely affected by the passage into law of the measure concerned.  It is possible for counsel to represent parties making representations about a bill - How to petition against a private Bill.

    A Library Note relating to Hybrid Bills was published by Parliament on 19th November 2013 - Hybrid Bills - note .

    Links of interest:

    Parliament - Living Heritage - Roads and Railways

    Parliament - Living Heritage - Roads and Railways - Private Acts


    Local and Personal Acts of Parliament - Wikipedia

    Phase 1 - Environmental impact

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