THE HUMAN RIGHTS ESSAY

SEVERING THE JUDICIAL TIES WITH STRASBOURG: COSMETIC OR SUBSTANTIVE REFORM?

Conor Fegan

13 November 2015

Introduction
In The Sunday Times on 8 November 2015, details emerged of the Government’s much awaited Human Rights Act reforms. However, the details which we have are sketchy, and tell us nothing about how the Government proposes to reform some of the key aspects of the Human Rights Act. For example, we have no details on whether the interpretative obligation under Section 3 will survive. Instead, the primary focus seems to be on severing the judicial tie between UK Courts and Strasbourg, and initiating a closer relationship with Commonwealth jurisdictions on matters concerning human rights. This piece seeks to consider this narrow aspect of the reform proposals in light of the information revealed in The Sunday Times.
The current situation

Under Section 2(1) of the Human Rights Act, UK Courts must “take into account” the jurisprudence of the European Court of Human Rights where it is “relevant” to the proceedings at hand. Judges have a discretion under this section; while they must “take into account” relevant jurisprudence, they are not bound to follow such jurisprudence. Once “taken into account” the judiciary may choose to accept the jurisprudence, reject it or adopt a course somewhere between these two extremes.

The early case law surrounding Section 2(1) is shaped by Lord Bingham’s articulation of the “mirror principle” – that it is the “…duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less” (Ullah [2004] UKHL 26, at [20]). This gave rise to a degree of inflexibility in the consideration of Strasbourg jurisprudence; national courts would lean more naturally towards following Strasbourg jurisprudence as opposed to rejecting it – Lord Rodger’s statement that “Strasbourg has spoken, the case is closed” (AF [2009] UKHL 28, at [98]) is an extreme example of this attitude.

However, as Roger Masterman has persuasively argued, with reference to a number of recent cases, the mirror principle is not as strong as it once was. A more sophisticated approach where national courts engage in constructive dialogue with Strasbourg is evident in the most recent case law, with R v Horncastle [2009] UKSC 14 demonstrating this point vividly. National courts understand that they are not bound to follow Strasbourg and will – in appropriate cases – challenge Strasbourg and hold firm in their domestic interpretations.

In light of this recent move towards a more sophisticated and less deferential approach, one wonders why the proposed reforms need to “tell judges they will not have to follow rulings of the European Court in Strasbourg” and also consider whether this is merely a cosmetic change which will have no practical effect, as some have suggested?

Cosmetic or substantive reform?

In light of the present Section 2(1) jurisprudence, is it the case that telling judges they will not have to follow the rulings of the European Court of Human Rights in Strasbourg merely a cosmetic, or symbolic gesture?

In a very narrow and legalistic sense, if the proposed reform merely states that national courts are under no duty to follow Strasbourg jurisprudence it would change nothing. The courts have stated this from day one; they have never expressed that they are legally bound by Strasbourg. Perhaps the Government realises that this is a legally vacuous reform and is proceeding with it anyway just so it can point to a provision which tackles the (erroneous) public opinion that European judges are telling our courts what to do. There has been much criticism of “European” judges and their human rights rulings on this ground, and the inclusion of this reform accommodates these concerns while, in reality, changing nothing.

However, it could be the case that the reform is more than a merely cosmetic one designed to assuage public fears that national courts are being forced to follow European rulings. There are two readings of the leak in The Sunday Times which may suggest that Section 2 reform may be more substantive than initially apparent. On a narrow reading of the proposed reforms, the Government would state that national courts are not bound by Strasbourg jurisprudence but should instead take account of jurisprudence from Commonwealth countries. One could argue this changes nothing; the courts regularly take into account Commonwealth jurisprudence and are free to do so under the current arrangements. Similarly, they understand they are not bound by Strasbourg. However, the very inclusion of such statements would represent a shift in focus for national courts – Parliament would be positively stating that Commonwealth jurisprudence should be considered and negatively reminding the courts that Strasbourg need not be followed. The focus would shift from Strasbourg to Commonwealth jurisprudence, and the intention of Parliament would be clear on this front if the proposed reforms included a positive command in relation to the treatment of Commonwealth jurisprudence and a negative command in relation to Strasbourg jurisprudence, as I have outlined above. National courts could begin to cite Commonwealth jurisprudence against European rulings confident that they were acting in line with Parliament’s intent. European jurisprudence would still be relevant, but hierarchically of less normative significance than Commonwealth jurisprudence.

Of course, such a conclusion is highly speculative at this point. Indeed, the courts would also have to grapple with the presumption that Parliament does not legislate in breach of the UK’s treaty obligations and reconcile this with a preference for Commonwealth jurisprudence even where it is clear that such a move would be in breach of the UK’s obligations under the Convention. In cases where ECHtR jurisprudence is “clear and constant” (Alconbury [2001] UKHL 23 at [26]) the national courts would most likely still follow it notwithstanding Commonwealth jurisprudence. But it seems to be the case that the reforms impliedly suggest - on a narrow reading - that national courts should focus on Commonwealth jurisprudence which is somehow painted as being more acceptable than reliance on European jurisprudence. The thrust of this suggestion is that this might lead to some recalibration in how national courts deal with Strasbourg jurisprudence vis-à-vis Commonwealth jurisprudence.

Secondly, on a more expansive reading of the reforms, it could be argued that “will not have to follow” implies the Government is looking at expressly prohibiting national courts from following Strasbourg, perhaps in the realisation that if they do not, national courts will sink back into an Ullah-like adherence to Strasbourg jurisprudence so as not to put the UK in breach of its treaty obligations. If this was the case, then the effect would be radical. Commonwealth jurisprudence would take a central role, and the interpretation of rights in this country would diverge markedly from the interpretation given to rights across Europe by the ECHtR. Judicial enforcement or protection of ECHR rights could quickly fall out of line with the protection required under the Convention, and the political branches would be required to take up the mantle of ensuring effective protection so as to avoid a proliferation of claims at Strasbourg.

Both of these readings argue, in different degrees, that the reforms suggested will be substantive as opposed to cosmetic. I don’t profess to offer any conclusion on which reading is most likely to come to fruition, but I remain sceptical of the view that the reforms are purely cosmetic and will have no practical effect. Tackling the perception that the ECHtR is telling our judges what to do and taking ownership of rights again (two key aspects of Conservative Party rhetoric in relation to human rights) requires substantive reform, and section 2(1) reform is the manner in which this perception can be tackled. Cosmetic reform is unlikely to be enough to sell the reforms to the public or elements within the Conservative Party.

Conclusion

This piece has considered the proposed reforms of Section 2 of the Human Rights Act in light of the information made available in The Sunday Times on 8 November. I have argued that the reforms may take a number of forms, all of which point to some form of a substantive change in our relationship with Strasbourg and with other Commonwealth countries. The conclusions reached are highly speculative in light of the information available, but the thrust of this piece remains defensible: it is unlikely that the Government will settle for cosmetic reform of Section 2(1).

Conor Fegan is a Year 2 LL.B. student at the University of Durham. He tweets @Conor_Fegan