Judges should not be criticised for trying to interpret UK laws in line with the European Convention on Human Rights
The year ends on a depressing note for those of us who support the European Human Rights Convention and the Human Rights Act.
The two political architects of the HRA in the Blair Administration were the Home Secretary, Jack Straw, and the Lord Chancellor, Lord Irvine of Lairg. Each takes justifiable pride in their achievements in reconciling the need to provide effective legal remedies with respect for the legislative supremacy of the Westminster Parliament.
But Jack Straw, like David Davis MP, now asserts that the Strasbourg Court has over-reached itself, and that Parliament does not have a duty to comply with the Strasbourg Court?s judgments involving the UK, and he went to Strasbourg to remonstrate with the renowned President of the Human Rights Court, Sir Nicolas Bratza.
The Prime Minister and Home Secretary have said that they would like to repeal the HRA. And last Wednesday Lord Irvine publicly lectured our Supreme Court , inviting the court ?to re-assess all its previous statements about the stance it should adopt in relation to the jurisprudence of the ECHR?.
Lord Irvine?s lecture emphasised the obvious but important truth that nothing in the HRA requires our courts to treat the Strasbourg case law as binding precedent, and that they should decide the cases before them for themselves without being hamstrung by Strasbourg.
It is also important to emphasise the need to approach European law through and not round our legal system. It is the task of our courts to weave the Convention rights and case law into the fabric of our legal system, rather than tearing holes in the system. That is especially so in the absence of a written constitution that protects the integrity of our legal system.
Public confidence is lost if the HRA is used in a way that alienates rather domesticates the protection of our basic civil rights and liberties.
To that extent Lord Irvine is right, and eminent jurists, such as Baroness Hale and Lord Reed, newly appointed to the UK Supreme Court, have reached the same conclusion.
But Lord Irvine?s lecture to the Supreme Court went further, ignoring everything in the HRA except Section 2 (requiring our courts to ?take into account?, where relevant, the Strasbourg case law). He argued that it is Parliament that is ?principally responsible for the UK?s compliance with its Treaty obligations?, and that it is not the function of our courts ?to determine cases of high constitutional importance with far-reaching consequences for our democracy and the citizens of the UK on the basis of their view of the importance of the UK?s standing as a good global citizen. That is an issue far better left to the Foreign and Commonwealth Office and Parliament.?
That is a narrowly restrictive and insular view of the judicial function. It flies in the face of the terms of the Human Rights Act and the devolution settlement, as well as the well-established jurisprudence of British courts laid down a generation ago by great jurists, such as Lords Reid, Diplock, Scarman and Wilberforce.
Long before the HRA, British courts did their best to interpret legislation taking account of the Strasbourg case law, and acting on the presumption that Parliament intends to comply with Convention obligations when making the law. They also declared the common law taking into account that body of Convention case law, for example, in requiring damages for libel to be proportionate, and in ruling that government bodies cannot use libel law to chill free speech.
They did so even though Parliament had not given legal effect to the Convention rights because they recognised that it is the function of our courts, subject to Parliamentary sovereignty, to give effect to our international treaty obligations.
The purpose of the HRA was to give effect to the Convention by securing Convention rights and freedoms in UK law and providing effective remedies in British courts for alleged breaches ? ?bringing rights home?.
Both Mr Straw and Lord Irvine now question the results of their great political achievement.
The subtle means chosen in the HRA require our courts, to ?take into account? judgments of the European Court of Human Rights (Section 2); and, where possible, to read and give effect to UK legislation in a way compatible with the Convention rights (Section 3); and to act in a manner compatibly with Convention rights, notably when interpreting and applying the common law (Section 6).
Where our courts cannot interpret legislation compatibly with Convention rights, the HRA empowers them to make a declaration of incompatibility (Section 4), leaving it to the Government and Parliament to decide whether to amend the legislation. The Act does not empower our courts to strike down incompatible legislation, as they may under European Union law.
As part of the constitutional resettlement, Tony Blair?s Government also embedded the Convention rights in legislation devolving powers to Scotland, Northern Ireland and Wales, to ensure that the devolved legislative and executive authorities use their public powers compatibly with the Convention.
The genius of the HRA is that it is holistic ? not exclusively court-based but applying to all three branches of government. It recognises that the responsibility for securing and protecting Convention rights is not only that of Parliament and the executive but also of the courts, while preserving the legislative supremacy of the Westminster Parliament. It is a fair criticism that our most senior judges have sometimes gone too far in treating Strasbourg case law as determinative, but it is misguided to criticise the late Lord Bingham of Cornhill and Lord Rodger ????, among others, for striving to interpret and apply our laws, where possible, compatibly with the Convention.
It is essential to provide effective remedies in British Courts, and to avoid adding unnecessarily to the crushing burdens of the overloaded European Human Rights Court, and undermining the European rule of law. Our judges need no more lectures from politicians.
The author is a leading silk in administrative and public law and human rights and civil liberties