The Relationship between domestic courts and the European Court of Human Rights
The initially prevailing approach to the interpretation of s2(1) Human Rights Act (HRA) 1998 demonstrated a strong collective presumption on the part of the judiciary that relevant Strasbourg authority should be applied. The development of this so-called ‘mirror principle’[2] gave life to the suggestion that the Strasbourg authority ‘creat[ed] legal precedent for the UK (sic)’;[3] this stance is best delineated in Ullah by Lord Bingham: ‘… a national court subject to…s2 should not without strong reason dilute or weaken the effect of the Strasbourg case law…..The duty of national courts is to keep pace with the Strasbourg jurisprudence….no more, but certainly no less’.[4]
But more recently the growing evidence of ‘exceptions’ to the mirror principle reflects the pragmatic acceptance that the Strasbourg jurisprudence does not provide determinative authority for every arising human rights dispute,[5] and that an uncritical stance towards the European Court of Human Rights’ case-law effectively inhibits dialogue initiated by national courts.[6] This acceptance appears to be symptomatic of a judicial response to the political disquiet surrounding the disempowerment of national institutions supposedly prompted by the enactment of the HRA.
In embracing an approach to the application of Strasbourg jurisprudence which is contextual, increasingly critical and eschews the precedential approach[7] characterising the early HRA years, the domestic judiciary is moving towards a position in which the main objections to the impact of s.2 are being neutered.[8] The stance that the courts are now taking therefore reflects more accurately the wording of the section and the original intention underlying it.[9]
Further, in the earlier cases, soon after the introduction of the HRA, the courts at times applied Strasbourg jurisprudence that had been influenced by the margin of appreciation doctrine, without recognising that that was the case.[10] Therefore, in effect, in some instances they imported an international law doctrine into domestic law. However, in a number of the more recent cases, that approach has been rejected. Where a margin of appreciation would be likely to be afforded, or in a relevant decision has already clearly been accorded, to the member states, the domestic courts have recently shown greater confidence in finding that the question to be resolved is one for the domestic authorities to ‘decide for themselves’,[11] and that trend is only likely to strengthen. If it is reasonably clear that the decision to be made does fall within the margin that the Court has decided to leave to the member states, the court need not be constrained in its decision by any relevant jurisprudence, although it might seek some guidance – if any was available – from such jurisprudence.
The courts, having familiarised themselves with relevant Strasbourg jurisprudence, are currently gaining confidence and finding, especially where the decision falls within the margin of appreciation accorded to member states, that they can take a more activist approach to the European Convention on Human Rights (ECHR) guarantees, than the Strasbourg court itself would, since its approach is trammelled, not only by the influence of the margin of appreciation doctrine, influenced by consensus analysis,[12] but also by concerns as to the reception a decision might have in the more socially conservative member states – the obvious example being Russia.[13] The UK Supreme Court, unlike the Strasbourg court, need not concern itself with such a reception or with the number of member states that have provided protection for certain interests that potentially could fall within the scope of an ECHR right. The Supreme Court, admittedly, has been increasingly confronted with a socially conservative political climate in the UK, particularly from the viewpoint of right-wing ideologues in the Conservative party, who have directly attacked the HRA/ECHR on a number of occasions. As argued above, the recent growth in the range of ‘exceptions’ to the mirror principle, and in reliance on sources for the development of human rights law in the UK other than Strasbourg jurisprudence, appears to be attributable, in part, to a response to such attacks. Distancing that development from such jurisprudence tends to have the consequence of neutralising some of the socially conservative concerns that may underlie certain attacks. On the other hand, judicial creation of a vibrant domestic human rights jurisprudence can readily be attributable to a range of other motivations; moreover, the institutional position of the UKSC differs strongly from that of the Strasbourg Court, which is currently confronting a crisis of legitimacy fuelled by concerns that its judgments may be marginalised or disregarded in certain member states.[14] In other words, even if the changed stance described here taken by domestic judges to s2 HRA is partly attributable to confronting domestic socially conservative forces, the outcomes in human rights disputes are less likely to display the caution shown at Strasbourg when confronted with cognate forces, emanating from certain member states.[15]
Thus the development of human rights in the UK was initially shaped by absorbing Strasbourg jurisprudence into domestic law,[16] with the result that a remedy was potentially available domestically which previously would probably only have been available at Strasbourg, meaning, prior to the inception of the HRA, that vindication of human rights was severely delayed and available only to determined litigants.[17] But currently it is being shaped by a more dynamic approach to human rights which goes ‘beyond’ the Strasbourg stance in a range of instances[18] and draws on a range of sources other than the Strasbourg case-law.[19]
Those developments also mean that the HRA has in a number of instances allowed the UK courts to hold the executive and legislative branches of government to account in the protection of human rights, initially by applying the Strasbourg jurisprudence less deferentially in ECHR-based disputes,[20] but somewhat more recently, in certain instances, by applying a more activist, rights-protective version of the ECHR in relation to such disputes.[21]
[1] This partly draws on: Fenwick and Masterman, ‘The Conservative Project to “Break the Link between British Courts and Strasbourg”: Rhetoric or Reality?’ (2017) 80 Modern Law Review 1111; R. Masterman, Supreme, Submissive or Symbiotic? UK Courts and the ECtHR (London: Constitution Unit, 2015).
[2] J. Lewis, ‘The European Ceiling on Rights’ [2007] PL 720.
[3] Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws (October 2014), p.5.
[4] R (on the application of Ullah) v Special Adjudicator [2004] 2 AC 323, [20].
[5] Ambrose v Harris [2011] UKSC 3; [2011] 1 WLR 2435, [129]. In Poshteh (Appellant) v Royal Borough of Kensington and Chelsea (Respondent) [2017] UKSC 36 the Supreme Court found ‘[the relevant Strasbourg decision] is one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime [36]. This is a case in which the….Court should not regard the Chamber’s decision as a sufficient reason to depart from its own [previous] fully considered and unanimous conclusion’ [37].
[6] Manchester City Council v Pinnock [2011] 2 AC 104, [48].
[7] See: R (Hallam) v Secretary of State for Justice [2019] UKSC 2, [90]; P v Surrey CC [2014] AC 896.
[8] R (on the application of Quila) v Secretary of State for the Home Department [2012] 1 AC 621, [43]; R v Horncastle [2010] 2 AC 373 [11] (Lord Phillips).
[9] Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104, at [48].
[10] Thus, R v Perrin [2002] EWCA Crim 747 applied Handyside v UK (1976) 1 EHRR 737, a decision heavily influenced by the margin conceded to the UK.
[11] See In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, [31]. In R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38 it was found: ‘[in the instant case, where the Court had already found that the matter was within the member states’ margin of appreciation] the national courts therefore must decide the issue for themselves, with relatively unconstraining guidance from the Strasbourg court…’ [70]. See also R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin). The approach of the Strasbourg Court to the margin of appreciation need not be replicated domestically: see Steinfeld and Keidan v Secretary of State for International Development [2018] UKSC 32: ‘…the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified’ ([28]).
[12] See H Fenwick ‘Same sex unions at the Strasbourg Court in a divided Europe: driving forward reform or protecting the Court’s authority via consensus analysis?’ (2016) 3 EHRLR 249-272.
[13] See H Fenwick ‘Finding ‘East’/’West’ divisions in Council of Europe states on treatment of sexual minorities: the response of the Strasbourg Court and the role of consensus analysis’ (2019) 3 EHRLR, 247-273 (with D Fenwick).
[14] In particular, an amendment to the law on the Constitutional Court of the Russian Federation came into force on 14 December 2015 to accord the Constitutional Court the power to declare it ‘impossible to implement’ judgements of a human rights body (including, obviously, the Strasbourg Court) on the ground that its interpretation of the international treaty provisions underpinning the judgement would be inconsistent with the Constitution of the Russian Federation.[15] See Oliari v Italy App nos. 18766/11 and 36030/11, judgment of 21st Oct 2015. The Court sought to confine the findings to the local situation in Italy, arguably due to concerns as to the reception that would have been accorded to more universally applicable findings in member states that have introduced no
registered partnership scheme for same-sex couples.
[16] See eg McKennitt v Ash [2007] 3 WLR 194.
[17] The ‘living instrument’ approach at Strasbourg nevertheless still enabled development.
[18] See R (on the application of Jalloh v Secretary of State for the Home Department [2020] UKSC 4, finding that counsel for the Secretary of State was attempting ‘to restrict the classic understanding of imprisonment at common law to the very different….concept of deprivation of liberty under the ECHR. The Strasbourg court has adopted this approach [needing to] draw a distinction between the deprivation and restriction of physical liberty….the common law [need not] draw such a distinction and [there is] every reason for [it] to continue to protect those whom it has protected for centuries against unlawful imprisonment, whether by the State or private persons’ [33]. See also: R (TT) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
[19] See Osborn v The Parole Board; Booth v The Parole Board [2013] UKSC 61: ‘the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system’, [55]. See also: Rabone v Pennine Care Foundation NHS Trust [2012] UKSC 2; [2012] 2 AC 72, [113]; Kennedy v Charity Commission [2015] AC 435 [133].
[20] See in particular: A (FC) and others (FC) v. Secretary of State for the Home Department [2004] UKHL 56; Secretary of State for the Home Department (Appellant) v. JJ and others [2007] UKHL 45.
[21] See the examples in n14 and n10.
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