Keep calm and apply the European Convention on Human Rights – Paul Harvey

4 June 2013 by Guest Contributor

The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.

It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously.  He would, no doubt, be surprised at the evolution of the Convention into the system it is today.  But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.

In keeping with its genesis, the European Court of Human Rights is perhaps the most British of the international institutions in which we as a country participate. The Court sits on the Quai Ernest Bevin (inexplicably named for Davies’ boss at Foreign Commonwealth Office rather than Davies himself). English is one of its two working languages. Three of its eleven presidents have been British (more than any other country), including, most recently, Sir Nicolas Bratza whose term as President was characterised by the same grace, dignity and fortitude which defined his service as the first permanent UK judge on the Court.

It is therefore a source of surprise – and, to anyone with a sense of history, a source of dismay – that there is a small but growing group of skeptics in politics, in the media and the legal profession who advocate withdrawal from the Convention system which we have done so much to create.

Strands of skepticism

Perhaps the most common source of skepticism is the view that there is nothing wrong with the Convention itself, but that it has been seized upon by continental European judges as a means of imposing their own philosophical views of human rights on the British legal system.

Ironically, the most common criticism of the Strasbourg court in continental countries is that there is nothing wrong with the Convention itself… but that has been seized on by common law judges as a means of imposing their alien, Anglo-Saxon philosophy of human rights.

In any event, as exciting as this debate between Anglo-Saxon and continental philosophy sounds, I am sorry to say it is not borne out by the facts. Last year, the Strasbourg decided well over 1,000 cases which had been lodged against the United Kingdom. The vast, vast majority were summarily dismissed by the Court without adversarial argument. Violations were found in just ten cases. That is a statistically insignificant 0.01 %.

It is worth pausing briefly to consider what Strasbourg is actually doing in cases which are not summarily dismissed by it.  In such cases, Strasbourg is normally adjudicating between competing views which have been expressed in British courts. For instance in Othman (abu Qatada) Strasbourg came to endorse the views of the unanimous Court of Appeal (which had found for Qatada) over the views of the House of Lords (which had found for the Home Secretary). In other cases, Strasbourg is deciding on novel and important points of law which are of general importance for the Convention system. An example of this (and one where no violation was found) were the US extradition cases where the Court had to consider the extent to which the Article 3 prohibition on ill-treatment applied – if at all – to life sentences served in another, non-Contracting State and whether, as the House of Lords had suggested, the extradition context had to be borne in mind, notwithstanding the absolute character of Article 3. One can disagree with Strasbourg’s conclusions in these individual cases, but it is surely the true that, as long as there is a Strasbourg court, these are the kinds of cases it should be deciding.

Prisoner votes

The second source of skepticism is that these controversies are not for the courts at all, but for Parliament. Currently, this particular strand of skepticism is almost wholly the result of a single judgment of the Court – now nearly eight years old – which applied the well-established common law principle that prisoners do not lose all of their civil rights upon incarceration and added that, in contrast to the United Kingdom, most other European countries do not apply a blanket ban on voting irrespective of the reasons for incarceration.

Beyond the facts of this particular controversy, it is worth retaining some sense of perspective. Parliamentary sovereignty and the idea of review by a supranational court are ideas which have now co-existed for over sixty years without much difficulty for either institution. We should also remember that while Parliament may be sovereign, it is not infallible. There is surely nothing wrong with a court pointing out that a particular State has fallen out of step with other States and asking it to reconsider its position accordingly.

It has been said that the only means of properly protecting Parliamentary sovereignty would be to withdraw from the Convention system.  However, and if I may be forgiven the pun, this is a legitimate aim which could only be obtained at a grossly disproportionate cost.

What are perhaps not fully appreciated by United Kingdom commentators are the international ramifications such an act would have. It would damage our reputation among democracies of Europe because we would be seen as turning our back on our own heritage. It would weaken our ability to protect human rights throughout the world because it would leave us open to charges of hypocrisy and duplicity. Above all, it would deal a perhaps fatal blow to the Convention system itself because it would implicitly give permission to other signatories – some much less democratic than we – also to denounce the Convention. British democracy could survive withdrawal from the Convention; democracy in many Eastern European states could not.

Honourable compromise?

Rightly conscious of the international consternation that withdrawal would cause, some commentators have suggested that the honourable compromise would be for the United Kingdom to remain a signatory of the Convention but for the Human Rights Act to be repealed, perhaps to be replaced by a United Kingdom Bill of Rights.

This is a principled stance which, for that reason, must command respect. However, if implemented, this would prove unsatisfactory and even counter-productive. The Human Rights Act had two central pillars. In the first, the duty of public authorities to act compatibly with Convention rights and the duty of the courts to take account of Strasbourg jurisprudence, the purpose of the Act is to ensure that human rights disputes were dealt with at the domestic level and thus remove the need to go to the Strasbourg Court. In the second, the system of declarations of incompatibility where the courts cannot interpret legislation compatibly with the Convention, the Act strikes an elegant balance between Parliamentary sovereignty and protection of human rights. These are aims which correspond in large part to the goals sought by skeptics of the Strasbourg Court and, for the most part, the two pillars of the Act work well in practice.

On the other hand, there are clear advantages to the path the United Kingdom has chosen. Most significantly, the Act has enhanced the United Kingdom’s status in the Convention system. One sees this most clearly in the influence the Act has given the UK judiciary in the Strasbourg Court. This means not only the ability of UK judges to influence the thinking of those Strasbourg judges who decide UK cases, but more generally. Whether on questions of Roma rights, immigration law, or family law, the views of UK judges are read and considered by the Strasbourg Court when it considers cases of general importance against other countries.

Repeal would, moreover, be of questionable utility. The great advantage of the Act is that it allows human rights controversies to be dealt without the need to go Strasbourg. Repeal would, in effect, subvert the principle of subsidiarity and flood the Strasbourg Court and mean years of Strasbourg litigation to determine what, if any domestic remedies should be exhausted before bringing a case before the Strasbourg Court.  We must really ask ourselves if it is in anyone’s interest to return to the days when human rights law was about debating whether this or that tort could be evolved to cover this or that act of a public authority.

Finally in respect of the Human Rights Act, we should not forget the extent to which, after thirteen years of operation, it has become part of the legal fabric of the country. Not only is it a vital and – daresay I say, popular –  part of the devolution settlements for Scotland, Wales and Northern Ireland, it has been entirely assimilated into the work of every public authority in the country.  Repeal of the Act would leave the entire public sector without any clear idea of their legal obligations since they would not know whether to continue to apply the policies which they have carefully developed in order to comply with the Act/Convention.

II Keep calm

Does this mean that, for better or worse, we are stuck with the present system and stuck with the Strasbourg Court? One is tempted to turn the question around and ask –  provocatively – is the Strasbourg Court stuck with the United Kingdom and stuck with much of the unfair and unfounded criticism of it which the United Kingdom generates? If the answer is yes, is the only solution for Strasbourg to do what it has always done and – to paraphrase the now ubiquitous poster – to keep calm and apply the Convention?

I should say immediately that I do not think either the UK or the Stasbourg court  is “stuck” with the other because, at its heart, their relationship is positive and fruitful for both sides.

However, to the second question – whether Strasbourg should keep calm and carry on – I would prefer to give a more qualified answer. If keeping calm means continuing to apply the Convention without fear or favour, and irrespective of how unpopular its judgments in favour of notorious applicants may be, then the answer must surely be an emphatic yes.  There is, though, a case for saying that the time has come for the Strasbourg Court – in respective of its more advanced signatory States at least – to think more seriously about how it interprets and applies the Convention.

When it comes to interpreting and applying the Convention, Strasbourg has no shortage of interpretative tools in its disposal. However, what has been regrettably absent in recent years, particularly as the Court decides ever more cases, is any sort coherence in the application of these tools. Too often Strasbourg says the outcome depends on “all the circumstances of the case” and too frequently whatever principle could be extracted from a judgment is obscured by meaningless verbiage in which it is written. In the words of Lord Hope, too many judgments of the Strasbourg Court bear the hallmark of having been written by a civil servant accorded to a pre-determined formula.

It would be impossible and inappropriate for me to set out a comprehensive theory of interpretation of the Convention. However, it would be useful for the Strasbourg Court to recognise that, when it comes to interpreting and applying the Convention for countries such as the United Kingdom, it is, in reality, dealing with four categories of rights, each of which demands a different approach on the part of the Court.

• The first category covers the absolute rights set out in Articles 2, 3 and 4 of the Convention.
• The second category covers the due process rights set out in Articles 5, 6 and 7 of the Convention (covering deprivation of liberty, the right to a fair trial and the prohibition on punishment without law).
• The third category covers the qualified rights set out in Articles 8 – 11 (private life, freedom of religion, expression and association).
• The fourth and final category covers still more qualified rights set out in Protocol No. 1 (property, education and voting rights).

Categories I and IV can be deal with shortly since currently, I do not detect any great criticism of the degree of scrutiny Strasbourg gives to national courts’ decisions (higher in respect of category I rights like the prohibition on torture,  a great deal lower in respect of category iv rights like property). Nor is any great opposition to the procedural and substantive standards it had laid down in respect of these Articles.

Category II, the due process rights, is perhaps the most difficult area for Strasbourg. On the one hand, such cases will normally have been argued through domestic courts which have no trouble understanding concepts such as “fairness” or ‘arbitrariness”.  On the other hand, proper regard must be had to the importance of these rights and it would be very strange if a human rights court had nothing to say on such matters. Perhaps the added value of the Strasbourg Court in this field is two-fold.

First, it is better placed than national courts to determine the current international law standards of due process. The Salduz case is a good example of Strasbourg finding that international standards have evolved to the stage where Article 6 had to be interpreted as requiring access to a lawyer in police custody.

Second, Strasbourg must stand ready to give authoritative rulings on due process cases which questions of general importance affecting more than one State and which even conscientious national courts find difficult. The kettling case of Austin, the speed camera case of Francis and O’Halloran and the Belmarsh detainees case of A and others provide good examples authoritative Strasbourg rulings in this category.

I come finally to category III.  Here, the emphasis should be much more in providing a clear framework by which national courts can determine for themselves first there has been an interference and second, whether an interference has been proportionate. For the first, in my view, Gillan and Quinton and S and Marper were particularly good examples of the Court setting out its reasons why it felt the national courts had erred in finding that there had been no interference with Article 8.  Equally for the second, the Court’s judgments in Von Hannover  (no 2) and Axel Springer against Germany provided clear guidance for domestic courts how to strike the difficult  balance between the privacy of public figures and freedom of the press to report on them. There remain however, examples from other countries where judgments have almost accidentally expand the scope of Articles 8 – 11 and, even if the final result was correct, there was not the same the clarity and depth of analysis as in the four judgments I have just mentioned.

Of course, all of this is a far cry from the Palazzo Barberini where, sixty-two years, six months and twenty-three days ago, Ernest Davies put pen to paper. Of course, no one can know for sure what Mr Davies would have thought of the current Convention system. But if was anything like the great Prime Minister who appointed him, he would have listened carefully to the criticisms of the Convention system, he would have raised a wry smile, and he would have told everyone to keep calm and apply the Convention which he had the singular honour to have signed.

Paul Harvey is a UK lawyer in the Registry of the European Court of Human Rights. This post is an edited version of a lecture given at the School of Law, University of Leeds on 17 April 2013.           

Read more:

• What would happen if the UK withdrew from the European Court of Human Rights?
• Apocalypse soon? The UK without the European Convention on Human Rights
• How the most English of poems inspired a Scot to champion European Human Rights