1 May 2015

The future of the UK’s relationship with the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) has not been a major political issue in the run up to the election. In their manifestos, most political parties have made some mention of it but only UKIP promises immediate withdrawal from the ECHR system of supervision. ECtHR bashing in the media has also been relatively light compared to 2014. In an article published in April, a journalist from The Daily Mail came close to praising the ECtHR for its decision that the application of a “Lithuanian gangster”, opposing his deportation from the UK on human rights grounds, was manifestly ill founded. In early April it had reported with delight that the ECtHR had decided that Russia was “justified in deporting a 45 year old man for breaking immigration laws even though he went to live there more than 20 years ago and has a Russian wife and son.” Could it be that the ECtHR no longer needs “sorting out” as David Cameron promised to do in September 2014? Could it be possible that the record of the UK before the ECtHR in 2014 has prompted a change of heart? Criticising a supranational human rights court becomes far more difficult when it is either finding in favour of the UK or making dry and complex judgments that not even the most accomplished special adviser could spin into a calculated attack on the sovereignty of the UK.
The figures
In its latest country profile concerning the UK, the ECtHR states that it dealt with 1,997 applications against the UK of which 1,970 were declared inadmissible or struck out. It delivered 14 judgments (concerning 27 applications) and in only four of these judgments a violation of the ECHR was found. This is in stark contrast to the UK’s record in 2002 when the impact of the Human Rights Act 1998 (HRA) had still not filtered through and in 40 judgments concerning the UK, violations were found in 30. Considering the figures for 2014, it is possible to conclude that the ECtHR only finds 1 percent of all applications made against the UK admissible, and only finds the UK in breach of the ECHR in one in four of its judgments. Such figures could conceivably inspire a story about the “draconian” court and its harsh approach to victims making human rights claims against the UK – a story which would be greatly enhanced if an application found inadmissible had been made by a media organisation. It is clearly now much more difficult for UK based opponents of the ECtHR to illustrate their arguments with recent examples. This is why we still hear so much about the ECtHR’s judgments on prisoner voting, night flights and Abu Qatada – the ECtHR has simply not obliged with the provision of fresh gripes.
Violations found
Nevertheless, four judgments finding a violation on the part of the UK were delivered in 2014. These were obviously quite dull as only one, trading on memories past, made headlines in the national media. In the first, Paulet v UK, the applicant complained that a confiscation order made against him was a disproportionate interference with his right to peaceful enjoyment of possessions as protected by Article 1 of Protocol No.1 to the ECHR. He had been working in the UK illegally using a false French passport. He was convicted of dishonestly obtaining a pecuniary advantage by deception and a confiscation order was sought in respect of his earnings depriving him of the savings he had made during his years of employment although he had paid all the tax and national insurance due on what he had earned. His HRA claim had failed and the ECtHR determined that the national judges had not applied the correct “fair balance” test to the confiscation – a test which is now applied in the UK as a result of a decision of the Supreme Court in 2012. There was little media interest with a few reporting that the ECtHR had thrown into doubt the UK’s ability to strip criminals of illegal earnings, not appreciating that exactly the same legal test has been applied by UK courts for some time as the result of a judgment of our own Supreme Court.

The next judgment was McDonald v UK which is generally seen more as a victory for the UK as whilst the ECtHR did find a violation of Convention rights, it found no violation on what was considered to be the most important issue. Ms McDonald’s application concerned the decision of Kensington and Chelsea local authority to withdraw her night-time care and provide her with incontinence pads instead. Under the HRA a majority of the Supreme Court had decided that her human rights were not even engaged and, on the assumption that they were engaged, that the decision of the local authority was compatible with her right to respect for private life taking into account the demands on the local authority’s resources and the deference to be afforded to public authorities making decisions of this nature. The ECtHR essentially agreed with this assessment although importantly it did find that such decisions do engage a victim’s right to respect for their private life as considerations of human dignity are engaged. The violation on the part of the UK was essentially a technical one as one part of the decision making process was not in accordance with the law, in other words, the local authority had no lawful power to withdraw the care for the first 12 months – this power was only provided from November 2009 onwards. From this point on the ECtHR found no breach of Article 8 and afforded the UK a wide margin of appreciation as this was an issue of general policy. Most media reporting on this judgment did appreciate its landmark nature, in particular the fact that failure to consider a person’s dignity in such contexts can be a breach of human rights.

The only judgment to make serious news in 2014 was Firth v UK, the latest judgment given on the numerous applications brought against the UK’s blanket ban on prisoner voting. Whilst this may have constituted an unexpected gift for opponents of the ECtHR in the run up to the general election, most were disappointed. With little consideration, and in accordance with its previous judgments, the ECtHR found that the ban on prisoners voting in the elections to the European Parliament was incompatible with Article 3 of Protocol No.1 to the ECHR. Given that the Court has made the same finding in a number of other judgments, this was hardly newsworthy. However, referring to its warning in Greens and MT v UK in 2010, the ECtHR held that no award was to be made to the applicants for their costs and expenses as these were not reasonably and necessarily incurred. As the Court noted, it had been established since 2005 that the UK ban on prisoner voting was incompatible with Art.3 Protocol No.1. Subsequent applicants only needed to complete an application form in which they cite Article 3, allege that they had been in post-conviction detention on the date of the election and confirm that they would have been otherwise eligible to vote in the election in question. Understandably, in the view of the ECtHR, there was absolutely no need to engage the services of a lawyer in order to do this. Non pecuniary damage was also not awarded to the applicants, the Court concluding that the finding of violation was sufficient just satisfaction. In The Daily Mail this was hailed as a “victory for the taxpayer” as it was thought to save the UK £1million in compensation. It was reported that it was also seen as a “conciliatory gesture in Whitehall”.

The final judgment where a violation was found on the part of the UK was delivered in December 2014. This was another in the many judgments where the UK has been found in breach of the Article 2 ECHR duty to investigate deaths arising from The Troubles in Northern Ireland. Proceedings under the HRA to challenge the failure to investigate were not possible as the death took place prior to 2 October 2000. In this particular judgment, the ECtHR found that the 17 year delay of the investigation into the death of the applicant’s son was incompatible with Article 2.
Violations not found
Often overlooked in shallow assessments of the role played by the ECtHR in the UK are those judgments where it has found that the UK is not in violation of the Convention. Often in reaching its conclusion, the ECtHR confirms the approach taken by the national court in a HRA claim, thereby demonstrating the enormous value of the HRA to the UK’s record before the ECtHR. There were ten of these judgments in 2014 and a number were of great significance. For example, in Jones v UK, decided in January 2014, the ECtHR agreed with the approach to state immunity taken by the House of Lords when it determined that it was not incompatible with the Article 6 right of access to court to extend state immunity to foreign state officials accused of torture. In a claim brought by the National Union of Rail, Maritime and Transport Workers, the ECtHR confirmed that current statutory ban on secondary strike action (sympathy strikes) was compatible with Article 11, the right to freedom of association. In Hassan v UK the ECtHR concluded that there had been no violation of Article 5, the right to liberty, arising from the capture and detention of an Iraqi civilian by British armed forces and in two cases brought by UK prisoners, it concluded that a real opportunity for rehabilitation had been provided and that there was no unreasonable delay in either prisoner’s release in breach of Article 5. Over this period the ECtHR also confirmed that retired and serving police officers can serve on a jury compatibly with Article 6 (the right to a fair trial) and that a delay in access to legal advice during an initial police interrogation can be compatible with Article 6 provided there is a compelling reason for the delay and there is no undue prejudice to a fair trial by the admission of statements made to police without the benefit of legal assistance. The ECtHR also agreed with an important judgment of the Supreme Court on the principles governing the admission of absent witness evidence to ensure a fair trial in accordance with Article 6.
Some have speculated that the ECtHR is so terrified that the UK may leave its embrace that in recent times it has moderated its stance, and is letting the UK literally get away with it. According to The Daily Mail, following Conservative threats to leave the ECHR system “a string of verdicts have gone Britain’s way” including the judgment that it is “acceptable to hand whole-life sentences to the worst killers” (a judgment delivered in 2015). It also reported that a senior government source had said that Strasbourg “knows the Conservatives are serious when they say they want a fundamental shift in power”. This is highly unlikely to be the case. The ECtHR deals with 47 Contracting States, many of which are still struggling with democracy, the rule of law and effective implementation of national human rights law. As a result, the ECtHR considers applications detailing the most appalling human rights abuses. By comparison, the applications it considers concerning the UK are essentially fine tuning on issues of human rights law which have already received detailed consideration at the national level.

Why the ECtHR’s relationship with the UK has greatly improved is because almost all of the hard work is done at home by our own judges and our own courts interpreting and applying the HRA. The Council of Europe and the ECtHR would of course be disappointed to see the UK leave, particularly as this would set a disgusting examples for Contracting States with real human rights problems, but little sleep would be lost over the prospect of a UK exit. As the ECtHR continues to drown under the numbers of applications from across the other Contracting States raising gross violations of human rights, what would cause a serious loss of sleep would be if the UK were to remain in the system but alter its national human rights protection to something far less than the standard set by the ECHR. This would greatly increase the number of applications against the UK which the ECtHR would have little choice but to find admissible, adding to an already overburdened system. As a proper analysis of the judgments against the UK delivered in 2014 demonstrates, the ECtHR is not the sovereignty sapping monster it is made out to be. As efforts to spin its work in this direction become ever more desperate, hopefully the falsity of the claims made will become ever more evident.