The authoritative source for independent research on UK-EU relations

30 Mar 2022

Constitution

Governance after Brexit

I. Introduction

Professor Barnard, conference, it is a pleasure to be here this morning, and I think the first thing we should do is remind ourselves that we are in the privileged position of living in a mature democracy where free and open debate, despite the navel-gazing of the culture wars, remains possible.  The fact that the Council of Europe no longer includes Russia is sad confirmation that the Whig theory of history is misplaced, and that the price of freedom is eternal vigilance.  I wanted to use my time before you to further develop what was in my mind as I worked to implement the Government’s 2019 manifesto commitment, which I helped to draft, of updating the Human Rights Act.  Updating, not replacing, you will note.  I am someone who has long-defended the European Convention on Human Rights, but who has also advocated further reform and improvement.  My address today is the latest in a line of lectures that flesh out my thinking.  This is an issue that cannot be dealt with in sound bites or media headlines.   I believe that we have neglected the details for too long, and the debate has suffered for it.  I have lost count of the times when the European Convention has been confused with the EU Treaties, for example.  Brexit should mean that there is no longer any excuse for this!

II. The problem with the ECHR

In my recent Society of Conservative Lawyers lecture, I set out what I regard as a key issue with the Human Rights Convention, namely that a wide array of possible interpretations are going to be compatible but not necessarily required by the text or the surrounding preparatory work, known as the “travaux” of the ECHR.

This, I think, is the problem with the Convention. It does not so much set out clear rules that can easily be applied but rather, it enacts values stated at a high level of generality and then instructs States to act compatibly with those values. Some of these values clash, and so states are required to strike a fair balance between them.

When in doubt, its worth going back to Thomas Aquinas. As he outlined, there are two ways in which positive laws can be derived from natural law.  The first is a simple process of logical deduction and the second is what he termed “determinatio”, explaining with an architectural analogy. An architect takes a general idea, such as a door, and from there constructs a specific door.[1] It cannot be said that the particular size of the door follows as a matter of logical deduction. Instead, a choice has to be made on its precise size, and, as Professor Finnis pointed out, that choice involves, in a benign sense, arbitrariness.

In his famous lecture The Nightmare and the Noble Dream which I have referred to previously, Prof HLA Hart argued that in many cases judges simply apply the law, but in others they have a discretionary field of judgement and actually have a choice to make about what the law should be.

Given the nature of the open-ended nature of the Convention’s text, it should come as no surprise that most of the seminal cases involve not a direct deduction from the text but rather a process of “ determinatio”.  The Court decides how to further specify the principles represented in the text. Sometimes this takes the form of new rules which do not follow as a matter of logical deduction from the text – for example, the duty to investigate breaches of Article 2 and 3. At other times, it takes the form of broad standards.   The key point, however, is that in all of this the Court is making a choice which is not required by the text itself. The very nature of the enterprise the Court is engaged in has a legislative quality, therefore.

If we were starting from scratch, I would have wanted us to draft the ECHR with a far greater level of specificity.  An interesting example of specific drafting is the UN Convention on Torture adopted in 1984, which provides in 16 substantive Articles what the ECHR does with just one – Article 3. Whilst some of the obligations which the Strasbourg court has fleshed out from Article 3 ECHR are present in the UNCAT, there are differences.[2] It seems to me that applying the principle that a law governing a specific subject overrides a law governing only general issues (lex specialis) and Article 31(3)(c) of the Vienna Convention on the Law Of Treaties (any relevant international law rules applicable between the parties shall be taken into account), the Strasbourg Court ought not to have interpreted Article 3 ECHR as going further than UNCAT.

The choice of how to specify the Convention rights is of course not unconstrained; a further specification cannot be made if it would contradict the text of the treaty.[3] Not all of the Articles of the Convention are equally susceptible to wide specification.  Articles 2 to 7 are already more specified than Article 8 to 11 and Article 14.

III. The role of the Strasbourg Court

But even that constraint gives the Court an incredibly wide margin of manoeuvre. What should it do? At one end of the spectrum, the Court could conduct the specification entirely by itself. At the other end the Court could let the exercise of specification be conducted entirely by the member states; in such an instance the Court’s role would be limited to considering whether the specification given by member states could be said to be within the limits of the meaning that the Convention can bear.[4]

Historically the approach of the Court appears to have been to conduct the specification itself. Following the Brighton process ten years ago, the Court now affords greater deference to member states. As President Spano has put it, we are now in an age of subsidiarity.[5]  However, we are not entirely at the stage where the Court gives the full power of specification to member states.  The scope of margin of appreciation given to states is for the Court to decide; it does vary and that variation is not explicable solely on the basis of the text of the Convention itself. In particular, the Court uses the concept of European consensus to widen or narrow the scope of the margin.

So, what are the Court’s key characteristics?  There are three key features to bear in mind.  First, by its very nature, the Strasbourg Court has certain limitations to its institutional competences. This is particularly so in areas such as contentious moral or ethical issues, economic matters, national security and diplomatic relations. Judges Pejchal and Wojtyczek put it so well:

‘Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.’[6]

Second, the Strasbourg Court is an international Court with jurisdiction over – now – 46 countries. The diversity of legal, political, social, and religious traditions between all those countries strongly militates against taking a “one size fits all” approach.

Third, the prospect of amending the treaty to correct an erroneous interpretation by the Court is a difficult one. If the Court finds that something breaches the Convention it binds all states but if it does not, this doesn’t prevent individual States from adopting this standard for themselves.

In my view, therefore, the Court should continue the process it started at the Brighton Declaration and increase the scope of the margin of appreciation it gives to States. Furthermore, it should also seek to prune back on some of the specific determinations that it made in the past and return greater discretion to member states.  In some areas, such as the interaction between the Convention and International Humanitarian Law, the Court has started this process.[7]

Sticking to the principle that the best things come in threes,  the Court’s role should therefore be threefold.  First, it should continue to adjudicate on clear breaches of the Convention, that is, acts or omissions of states that can be established as a matter of pure deductive reasoning.  Second, it should give states the widest possible margin of appreciation which is consistent with the text of the Convention, but it should ensure that states do not go beyond that margin.  Third, it can still find that states breached the Convention if the process they took to arrive at this decision was flawed because of a failure to consider relevant considerations or was otherwise arbitrary.

To put the point in the language of English administrative law – albeit a somewhat imprecise anlaogy– the Court should construe the text of the Convention so that it gives a very wide permitted field to nation states (the limits of which being decided on a reasonableness test) but within that permitted field it can still find a violation because of a procedural failing.

But when considering Parliamentary decision-making it is important to remember Lord Reed’s observation that ‘Parliamentary methods of resolving disputes are very different from judicial methods’[8] and that ‘courts have to be careful not to undermine Parliament’s performance of its functions by requiring it, or encouraging it, to conform to a judicial model of rationality.’[9]

To be fair to the Strasbourg Court, there has been a shift away from the Court making its own independent assessment of the Convention towards looking at whether the issues have been properly considered by the domestic decision-maker.[10]

My concern is that some of the principles which the Court fleshed during what President Spano called the “substantive embedding phase” can cause problems and indeed would not have been done by the Court during its current phase. To be fair, a lot of those norms are perfectly fine and are no longer contested by member states. Nonetheless, the Court needs to engage in both a formal and informal dialogue with the States to prune back some of those norms that cause difficulties for member states.

IV. Role of Parliament

The Convention requires an assessment of whether a restriction on a qualified right is proportionate, that is: does it strike a fair balance?  As the late Sir John Laws pointed out ‘there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government.’[11] The solution to this problem, as Lord Reed said, is a strong dose of deference grounded in due respect for the differing roles of the Court and Parliament.

There are, therefore, one first order and one second order question. The first order question is: how should the correct balance be struck between the public interest and the competing rights? The second order question is: how wide is the decision-maker’s discretion in answering the first order question?

Since the first order question is political and does not have a single right answer, it should be answered by the political branches of the state or, at any rate, by bodies under the control of the political branches.  The second order question is one for courts, both Strasbourg and the domestic courts.

However, there are some unfortunate instances where courts or other non political bodies have been required to answer the first order question. There are two that I will focus on here.

The first arises because Parliament has not done its job properly and not answered the first order question so that other bodies are required to do so. The leading example is the development of the tort of breach of privacy. Under the test as developed by the courts, applying the Convention principles, a court must strike a balance between the claimant’s Article 8 privacy rights and the defendant’s Article 10 freedom of expression rights. These are two values that do not have a common standard of measurement. How to strike the balance between them is a political question. This is an area of quite a bit of controversy to say the least and as a result of those decisions the courts are in the limelight. It is not fair to ask our courts to strike that balance without any guidance from Parliament.

Of course, it would be unrealistic to have legislation that sets out rules that cover every possible permutation. There necessarily will be a certain amount of discretion.  But there is a difference between court discretion that is bounded by factors identified by Parliament and an unbounded one in which the court is asked to strike a fair balance between two important rights.

I note that the Government’s Human Rights Act consultation wants to strengthen freedom of expression vis a vis privacy. It seems to me that the best way of doing so is to legislate to say precisely in what sort of situations the privacy interests will outweigh the freedom of speech one.

We have a good example of Parliament legislating to provide a scheme which balances the public interest and human rights, namely the Police and Criminal Evidence Act.  Take detention prior to charge, for example. PACE provides that the maximum length – outside of terrorism cases – is 96 hours. It provides certain tests and safeguards that need to be made in order to continue detention up to that 96 hour point. These provisions of PACE are Parliament’s specification of the political issue of how to balance the liberty of the subject – which finds expression in Article 5 – and the public interest.

This provides a relatively straightforward tool for lawyers, police officers, magistrates, and judges to apply. It would be infinitely more complicated if police officers or magistrates were required to consider whether further detention would strike the right balance between the liberty of the subject and the public interest.

As the authors of the excellent book Legislated Rights: Securing Human Rights through Legislation[12] have pointed out since the European Convention is incompletely specified (because it is too vague and open ended), it needs further specification and that specification needs to be done in the first instance by legislatures. As they say

Human rights need positive law not only to add security for the respect of the rights of persons, but also to realise – by specifying in law – the requirements of human rights. Legislatures should be understood as full partners in this enterprise of promoting and protecting human rights, and not as a standing threat to rights against which courts must serve as guardians.’[13]

Finally the issue can arise when the courts make an improper use of s. 3. When Parliament has engaged in specification, the task of the courts should be to apply that specified scheme and they should not seek to directly apply the rights that have been so specified, whether they be Convention rights or common law rights. To do otherwise would be to usurp the role of the legislature.

The HRA gives the ability to the courts to consider whether the statutory scheme is itself compatible with Convention rights. Such complaints can therefore be considered but, subject perhaps to s. 3 HRA, they ought to do so without disturbing or modifying the specified scheme which Parliament has created. In such an instance, the question the Court should ask itself is not the first order question of how the balance should be struck, rather than it should be the second order question: does the outcome which the Parliamentary scheme gives in this particular case go beyond the margin of appreciation which Strasbourg would grant to the UK?

If the answer to that question is yes, the Court must then consider what should be done.  It can use s. 3 if the defect in Parliament’s legislation is a minor one and correcting it would be possible.  But what is possible has to include constitutional constraint.  It is one thing to make use of s. 3 so that, for example, an additional factor can be considered because new case-law from Strasbourg says it ought to be.  It is quite another to use it to read in a requirement that the primary decision maker should themselves conduct the proportionality analysis.  Doing so amounts to undoing or usurping the legislature’s specification.

I was concerned that, for example, through the use of s. 3 and s. 6, the Supreme Court said last year that a court when trying someone for obstruction of the highway ought to consider for itself whether ‘the arrest and removal of the protesters strike a fair balance between the rights and interests at stake?’[14]

Similarly, in a recent case the High Court held that the Police are obliged to conduct a proportionality assessment themselves when policing protests, even in the context of the Covid pandemic.[15]

When it comes to protest, the Public Order Act is Parliament’s specification of the balancing act between the right to protest, the rights of others and the public interests. It is that which the police and courts should be applying, and not a general proportionality assessment.

The question of what is a fair balance between the rights of some to protest and the rights of others to use Her Majesty’s highways is one which as Lord Reed put it involves ‘weighing up incommensurable factors’ and so it does not have a single right answer.  Reasonable people – including judges – can and do disagree over how such a question should be answered.  In a democratic society that decision should be made by Parliament or by Ministers accountable to Parliament. These constitutional considerations mean that courts should strive to reach interpretations that do not require either them or other public authorities that are not directly accountable to Parliament or the people, to answer such first order questions.

Furthermore, this sort of “weighing up” of factors, is contrary to legal certainty and it seems to me is also contrary to the rule of law.  For if the rule of law means anything at all it must include, as the US legal academic Lon Fuller argued, governance on the basis of rules.[16]

It must be recognised that it is not possible to always ensure that a public authority would never have to consider the first order question itself.  This is because it is unrealistic to expect Parliament to provide a specification for every single possible issue that might arise.  But where Parliament has occupied the field, its own scheme should be applied in place of a first order proportionality analysis by the court.

V. Role of the domestic courts

This why I am in total agreement with Sir Peter Gross’s recommendation in the IHRAR Report that, before going to Convention rights, the domestic courts should first apply UK statutes and the common law.  This is because our domestic law contains the specifications that Parliament has provided or which, within their narrower role, our courts have done in developing the common law.

Secondly, the domestic courts must continue to remember the distinction between the first order proportionality question and the second order one.  Whilst the decision in Ziegler is not ideal in that regard, the judgment in SC is preferable.  There, the Court recognised that the answer to the first order question was ultimately a political one which the Court was not competent to answer. It therefore confined its analysis to the second order question: how much margin does Parliament have and does that decision fall within the margin.

But how should the Court approach that second order question and its link to the Strasbourg Court jurisprudence?

As I said in the Society of Conservative Lawyers lecture, the domestic courts can go wrong by gold-plating the ECHR, either by finding a violation in instances where it is not clear that Strasbourg would find a violation or by holding that they can still find a violation in matters falling within the UK’s margin of appreciation.  Fortunately, the Supreme Court has last year corrected both of those errors in AB and Elan-Cane.[17]

The role of our domestic courts is to determine what are the UK’s international obligations under the ECHR without needing a trip to Strasbourg and, subject to Parliament having decided otherwise, to prevent public authorities from acting contrary to those obligations.

It is not the task of our courts to decide for themselves what they would like the rights listed in Schedule 1 of the HRA to mean.  Those rights do NOT have an autonomous domestic meaning that is for our courts to figure out. This was the heresy rightly rejected by the Supreme Court in Elan-Cane.

This, of course, does not mean that the UK courts should be bound by every decision of the Strasbourg Court, not least because the Strasbourg Court is not itself bound by its decisions.  It is important that there is space for judicial dialogue between the Courts and that dialogue must include occasional disagreement.  But the framework under which such dialogue must take place is one where one asks what the UK’s obligation under a particular treaty is, and the judgments of the Court given the task of interpreting that Treaty must necessarily take pride of place.

If our courts forget this, or if Parliament instructs them to treat the rights in Schedule 1 as having an autonomous domestic meaning, there will be two very undesirable consequences.  Firstly, it will very likely lead to our courts going beyond Strasbourg as we saw prior to AB and Elan-Cane. Secondly, it will upend the constitutional position of our courts because it will require them to come up with what they take the meaning of a vague, open-ended text to be. That will inevitably put them in the position of making judgments on the merits of Parliamentary action and this will not be good for our constitutional balance.

It is for this reason that I am very concerned that the Government is proposing to replace the Human Rights Act with a Bill of Rights which will have the same text as the ECHR but which, at least according to some aspects of the Consultation document, have an autonomous domestic meaning which should be determined without reference to the Strasbourg case-law.

As Richard Ekins and John Larkin put it, prior to the recent change in jurisprudence of the Supreme Court, the domestic courts were ‘increasingly approaching the HRA on the footing that it empowers them to develop a kind of British bill of rights chosen by our judges themselves, which would gold-plate the ECHR, imposing further limits on government and Parliament.’[18]

Yet it would appear that this is what the Government is now consulting on.  The proposed Bill of Rights will retain the same text as the ECHR but, at least according to some aspects of the Consultation document, it would have an autonomous domestic meaning which should be determined without reference to the Strasbourg case-law.[19]

This would undo all the gains that have been made in the recent Supreme Court decisions.  I strongly agree with the responses to the Consultation of the Society of Conservative Lawyers and of Policy Exchange which advocate codification of those recent Supreme Court decisions rather giving those rights an autonomous domestic meaning.

To be fair, the Government did also contemplate codifying the principle Lord Reed laid down in AB, and Elan-Cane was handed down the day after the Consultation document was published. I very hope that the Government opts for this course of action in light of these encouraging developments.

VI. Conclusion

To conclude, the domestic courts should do well to remember Lord Reed’s observation in a number of cases that whilst the HRA might have given the courts more power, it has not removed the limitations of the court process to decide certain issues, nor has it altered the relative institutional competences of the courts, executive and Parliament in relation to their composition, expertise, procedures, accountability and legitimacy. It is unfortunate that these observations were made in dissenting judgments, but it is heartening that they now seem to represent the unanimous view of the Court. Long may that last.

As for Government and Parliament, I do not think that we should seek to replace the Human Rights Act with a Bill of Rights. Doing so runs the risk of introducing an autonomous meaning doctrine and this would upset our constitutional balance. Instead, the starting point of the Government should seek to codify the new approach of the Supreme Court.  There are then other changes that might be worth doing to the HRA framework some of which have been suggested by the Gross Review. Another worthwhile change would be to legislate to overturn Ziegler unless the courts beat us to it correct course before we do so.

Parliament must also be much more willing to engage in specific changes. It should do this, to start with, in areas such as privacy law and deportations under both Articles 3 and 8. In the course of doing so Ministers must not be afraid to make a s. 19(1)(b) certificate of incompatibility.

At the Strasbourg level, now that Protocol 15 is in force, it ought to be full speed on the move to process-based review.  In the course of doing so, the Strasbourg Court should be willing to revisit some of the norms it developed during its substantive phase if these pose problems for Member States.  In parallel, the UK could work with other member states to identify some of these problems.  This could either form the basis of a new Protocol or it could persuade the Strasbourg Court to revisit its case-law.

In short, we should abandon the uncertainty of a Bill of Rights, make targeted and specific domestic reforms instead and seek to work at for further reform at international level.  That would be a truly Tory approach to human rights reform.

Lecture by Rt Hon Sir Robert Buckland KBE QC MP at UK in a Changing Europe’s Constitution and Governance in the UK Conference, QEII Centre, Tuesday 29 March 2022. Notes below. 

[1] Thomas Aquinas, Summa Theologica, pt I-II, q. 95, art 1.

[2] For example, UNCAT prohibits deportation of people who would face torture abroad but this obligation does not apply for treatment merely regarding as degrading or inhumane. By contrast, the Strasbourg Court has interpreted Article 3 to prohibit any deportation to another country where there would be a real risk of a breach of Article 3.

[3] So, for example, the Court has refused to interpret Article 8 read with Article 14 as granting a right to same sex marriage because to do so would be inconsistent with the lex specialis of Article 12: Oliari v Italy. See also Day v Governor of Cayman Islands [2022] UKPC 6

[4] For example, there are many different ways of striking the balance between privacy and free speech but there could be some schemes which favour one to such an extent that it cannot be said they are striking a balance between the two.

[5] R Spano, ‘Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487; Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18 Human Rights Law Review 473.

[6] JD v United Kingdom [2019] ECH 753, Joint Dissenting Opinion at [11]. That statement was approved in SC v Secretary of State for Works and Pension [2021] UKSC 26 at [162].

[7] See e.g. Georgia v Russia (II)

[8] SC at [171]

[9] SC at [172]

[10] Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18 Human Rights Law Review 473, 480.

[11] Miranda v Secretary of State for the Home Department [2014] EWHC 255 (Admin) at [40].

[12] Grégoire Webber and others, Legislated Rights: Securing Human Rights through Legislation (1st edn, Cambridge University Press 2018).

[13] Grégoire Webber and others, Legislated Rights: Securing Human Rights through Legislation (1st edn, Cambridge University Press 2018) 14.

[14] DPP v Ziegler [2021] UKSC 23.

[15] Leigh v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin).

[16] Lon Fuller, The Morality of Law.h

[17] AB v Secretary of State for Justice [2021] UKSC 28 and Elan-Cane [2021] UKSC 56.

[18] R Ekins and J Larkin, Human Rights Law Reform: How and why to amend the Human Rights Act 1998 (Policy Exchange, 11 December 2021), [17].

[19] NIHRC [2018] UKSC 27 at [344]; Nicklinson v Ministry of Justice [2014] UKSC 38 at [296].

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