Principled Criticism and a Warning from the ‘UK’ to the ECtHR?

Bates, Ed

doi:10.1007/978-3-662-58986-1_7

Ed Bates⁵

Part of the book series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht ((BEITRÄGE,volume 285))

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Abstract

The ‘UK’ has been a major critic of the ECtHR over recent years, and especially since 2009. This chapter provides a unique analysis and assessment of the criticism, and, importantly, the constitutional context that forms the backdrop to it. It distinguishes between bad faith, political criticism of the ECtHR, and other more measured criticism of the ECtHR emanating from the ‘UK’ which, in effect, called for more self-restraint from the Court (and which should not be readily dismissed as ‘Strasbourg bashing’ or ‘anti-Strasbourg’). As to the latter, the chapter argues that, taken overall, aspects of the UK criticism could be considered ‘principled’, and that its general effect was such that it may be said that a ‘principled warning’ was issued by the ‘UK’ to the ECtHR over the 2010s. It proceeds to argue that the evolved nature of UK-Strasbourg judicial relations constitutes an adequate and proportionate response to the criticism and the warning, highlighting how the senior UK judiciary is, especially post-2015, far more robust in its interactions with Strasbourg than it once was. The chapter concludes by reflecting on these developments, in terms of what they may mean for human rights protection in the UK under the Human Rights Act 1998, as well the dangers to guard against for Strasbourg.

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Notes

1.
P van Dijk/G van Hoof, Theory and Practice of the European Convention on Human Rights (2nd edn 1990), p 618.
2.
Lord Phillips, ‘European Human Rights – A Force for Good or a Threat to Democracy?’, 17 June 2014 (available at <www.kcl.ac.uk>) at p 13.
3.
See Ministry of Justice, Responding to Human Rights judgments (Report to the Joint Committee on Human Rights on the Government’s response to Human Rights judgments 2016-17), December 2017.
4.
Article 46 § 1 ECHR.
5.
The UK is identified as a ‘Strong Criticism’ State, in P Popelier/S Lambrecht/K Lemmens (eds), Criticism of the European Court of Human Rights (2016). See generally, R Masterman, ‘The United Kingdom: from Strasbourg surrogacy towards a British Bill of Rights?’, ibid, pp 449–478 and E Bates, ‘The UK and Strasbourg: a strained relationship – the long view’ in KS Ziegler/E Wicks/L Hodson (eds), The UK and European Human Rights: A Strained Relationship? (2015), pp 39–69.
6.
On the prisoner voting controversy see: E Bates, ‘Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg’ (2014) 14 Human Rights Law Review 504–540, and E Bates, ‘Democratic override (or rejection) and the authority of the Strasbourg Court: the UK Parliament and prisoner voting’ in M Saul/A Føllesdal/G Ulfstein, The International Human Rights Judiciary and National Parliaments: Europe and Beyond (2017), pp 275–303. See also text accompanying fn 106–126.
7.
See M Breuer, Chap. 1 (in this volume). All references to ‘principled resistance’ hereafter are based on how that concept is defined in Chap. 1.
8.
See Part VI below.
9.
See the final paragraph in my Conclusion.
10.
On the UK media and Strasbourg, see, generally: D Mead, ‘“You couldn’t make it up”: some narratives of the media’s coverage of human rights’ in Ziegler/Wicks/Hodson (fn 5), pp 453–472; and L Gies, ‘Human rights, the British press and the deserving claimant’, ibid, pp 473–492.
11.
See text accompanying fn 150.
12.
Cf the insightful comments within J Morgan, ‘On the Intractability of the Human Rights Debate’, <https://judicialpowerproject.org.uk/>.
13.
Paul Mahoney, former ‘British’ Judge at Strasbourg, and for many years before that a senior official in the Registry, working at Strasbourg since the early 1970s.
14.
Such persons are ‘regarded almost as renegades or traitors’, Mahoney lamenting the absence of ‘self-questioning and openness to criticism’ amongst ‘many leading lights of the European human rights movement’, P Mahoney, ‘Preface’ in M Bossuyt, International Human Rights Protection: Balanced, Critical, Realistic (2016), p ix.
15.
Quotation extracted from B Woodward/S Armstrong, The Brethren: Inside the Supreme Court (1979), p xvii.
16.
See, further, Bates, ‘Democratic override’ (fn 6).
17.
Fn 1.
18.
M O’Boyle, ‘The Future’, in JL Sharpe (ed), The Conscience of Europe. 50 Years of the European Court of Human Rights (2010), pp 190–201, at 192.
19.
Lord Phillips, ‘Force for Good’ (fn 2). In the context of potential UK defiance on the ‘prisoner voting’ issue, the Secretary General of the Council of Europe, Thorbjørn Jagland, spoke of the bad example being set by the UK as potentially marking ‘the beginning of the weakening of the Convention system and probably after a while’ its dissolution: see Draft Voting Eligibility (Prisoners) Bill, Session 2013–2014, 18 December 2013, (HL Paper 103; HC 924) at para 109.
20.
E Fribergh, ‘The European Convention and Court of Human Rights: our shared treasures’ (2015) 35 Human Rights Law Journal 313–317, at 314. See also Council of Europe’s Secretary-General, Thorbjørn Jagland, ‘ECHR Judicial Seminar 2018 – The Authority of the Judiciary’ (Strasbourg, 26 January 2018) available at <https://www.coe.int/en/web/secretary-general/> (institutions like the Court susceptible to ‘simplistic and misleading arguments’, ‘precisely because international institutions operate outside national control’).
21.
See Report of the Wilton Park Conference “2020 Vision for the European Court of Human Rights (17–19 November 2011, WP 1139)” DH-GDR(2012)001, p 2.
22.
Ibid.
23.
Cf comments made within, A Donald, ‘Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?’, 28 April 2017, <https://www.ejiltalk.org/>.
24.
See Part II, below.
25.
See Part II, below.
26.
See various of the chapters/essays in Ziegler/Wicks/Hodson (fn 5); N Barber/R Ekins/P Yowell (eds), Lord Sumption and the Limits of the Law (2016); see also C Gearty, On Fantasy Island. Britain, Europe and Human Rights (2016), cf review of this book by Lord Sumption, ‘Publication Review’ (2017) 133 Law Quarterly Review 338–340.
27.
See Part VI.
28.
The relevant lectures include: Lord Hoffmann, ‘The Universality of Human Rights’, 19 March 2009 (available at <https://www.judiciary.gov.uk>); Lady Justice Arden, ‘Peaceful or problematic?: The relationship between national supreme courts and supranational courts in Europe’ 29 (2010) Yearbook of European Law 3–20; Lady Justice Arden, in ECtHR (ed), Dialogue between Judges: ‘The Convention is Yours’ (2010), pp 22–29; Baroness Hale, in ECtHR (ed), Dialogue between Judges: ‘What are the Limits to the Evolutive Interpretation of the Convention’ (2011), pp 11–18; Lord Kerr, ‘The UK Supreme Court: The modest underworker of Strasbourg?’, 25 January 2012 (available at <https://www.supremecourt.uk>); Baroness Hale, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ (2012) 12 Human Rights Law Review 65–78; Lord Carnwath, ‘The subsidiary role of the European Court of Human Rights in the UK judicial system’, 20 September 2013 (available at <http://supremecourt.uk>, also in Italian); Lord Reed, ‘The Common Law and the ECHR’, 11 November 2013 (available at <https://d17g388r7gqnd8.cloudfront.net/2017/08/lecture_reed_2013.pdf>); Lord Sumption, ‘The Limits of Law’, 20 November 2013 (available at <http://supremecourt.uk>); Lord Justice Laws, ‘The Common Law and Europe’ (Hamlyn Lecture III), 27 November 2013 (available at <https://www.judiciary.gov.uk>); Lady Hale, ‘What’s the point of human rights?’, 28 November 2013 (available at <http://supremecourt.uk>); Lord Judge, ‘Constitutional Change: Unfinished Business’, 4 December 2013 (available at <http://www.ucl.ac.uk/constitution-unit/constitution-unit-news/181213>); Lord Mance, ‘Destruction or Metamorphosis of the Legal Order?’, 14 December 2013 (available at <http://supremecourt.uk>); Lord Phillips, ‘The Elastic Jurisdiction of the European Convention on Human Rights’, 12 February 2014 (available at <www.oxcis.ac.uk>); Lord Neuberger, ‘The British and Europe’, 12 February 2014 (available at <http://supremecourt.uk>); Lady Justice Arden, ‘An English Judge in Europe’, 28 February 2014 (available at <https://www.judiciary.gov.uk>); Lord Dyson, ‘Are the judges too powerful?’, 12 March 2014 (available at <https://www.judiciary.gov.uk>); LJ Moses, ‘Hitting the Balls out of Court: Are Judges Stepping Over the Line?’ (available at <https://www.judiciary.gov.uk>); Lord Phillips, ‘European Human Rights – A Force for Good or a Threat to Democracy?’, 17 June 2014 (available at <www.kcl.ac.uk>); Lord Neuberger, ‘The Role of Judges in Human rights jurisprudence: a comparison of the Australian and UK experience’, 8 August 2014 (available at <http://supremecourt.uk>); Lord Sumption, ‘The right to a court: Article 6 of the Human Rights Convention’, 13 November 2015 (available at <http://supremecourt.uk>); Lord Neuberger, ‘Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights’, 18 August 2016 (available at <http://supremecourt.uk>).
29.
See sub-heading ‘2’ in the Introduction.
30.
See sections 1, 2, 3, 6, 10 and 19 HRA.
31.
See Bates, ‘The United Kingdom and Strasbourg: a strained relationship – the long view’ (fn 5).
32.
See the diplomatic initiative launched in the context of the UK Foreign Office Memorandum of 1995, which sought (unsuccessfully) a political resolution from the Committee of Ministers encouraging the Court to apply the margin of appreciation doctrine, discussed in Bates ibid, pp 49–50.
33.
Lord Neuberger, ‘The British and Europe’ (fn 28).
34.
Neuberger (fn 28), para 40.
35.
M Elliott/R Thomas, Public Law (2017), p 795.
36.
Lord Neuberger, ‘The Role of Judges in Human Rights Jurisprudence’ (fn 28).
37.
See also Lord Neuberger, ‘Reflections on significant moments in the role of the Judiciary’, 16 March 2017 (available at <https://www.judiciary.gov.uk>); para 20.
38.
Lord Lester, ‘A Personal Explanatory Note’, Individual Paper included within A UK Bill of Rights: The Choice Before Us (Report of the Commission on a Bill of Rights), 231 at 233.
39.
Ibid.
40.
Cf discussion by Lord Lester, House of Lords, Hansard, 20 June 2013: Column 432.
41.
See Part III.
42.
Section 19, HRA.
43.
Section 4, HRA.
44.
See Section 3, HRA.
45.
Lord Chancellor Irvine, ‘The Tom Sargent Memorial lecture: The Development of Human rights under an Incorporated Convention on Human Rights’, 16 December 1997 (available at <www.roughjusticetv.co.uk>).
46.
See fn 3 above.
47.
On which see fn 6 and 106.
48.
For up-to-date accounts of section 2(1), see R Masterman, ‘Supreme, Submissive or Symbiotic? The United Kingdom Courts and the European Court of Human Rights’, The Constitution Unit/UCL, (October 2015), and H Fenwick/R Masterman, ‘The Conservative Project to “Break the Link between British Courts and Strasbourg”: Rhetoric or Reality?’ (2017) 80 Modern Law Review 1111–1136.
49.
R (Ullah) v Special Advocate [2004] UKHL 26.
50.
Lady Justice Arden, ‘An English Judge in Europe’ (fn 28), at paras 51–52, suggesting the ‘Mirror approach’ would not be accepted in other jurisdictions, and would have led to ‘an integrated legal order in Europe’.
51.
Hale, ‘Argentoratum Locutum’ (fn 28), p 71.
52.
See ‘Chris Grayling: Senior Judges Back Me over Human Rights Reforms’ Daily Telegraph (London, 26 March 2014), <www.telegraph.co.uk/news/politics/conservative/10724404/Chris-Grayling-Senior-judges-back-me-over-human-rights-reforms>. C Grayling was the Minister of Justice at the time.
53.
J Straw, Aspects of Law Reform: An Insider’s Perspective (2013), p 44.
54.
The other chief architect of the HRA, Lord Irvine, delivered a lecture making very similar arguments: see Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] Public Law 237–252.
55.
Also of relevance may be the preceding case of Secretary of State for the Home Department (Respondent) v AF (Appellant) [2009] UKHL 28, in which concerns had been expressed by Lords Hoffmann and Rodger about an over-eagerness to follow Strasbourg.
56.
R v Horncastle [2009] UKSC 14, paras 10–11, and 108 (Lord Phillips), 116–121 (Lord Brown).
57.
Manchester City Council v Pinnock [2010] UKSC 45, para 48 (Lord Neuberger).
58.
Ibid.
59.
In Pinnock (ibid), Lord Neuberger stated that Strasbourg law should not ‘[cut] across our domestic substantive or procedural law in some fundamental way’: para 49 (see also para 48). See further, R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63, Lord Mance, paras 27 and 35 and Lord Sumption, para 137 (‘fundamental feature of the law of the UK’). - However, in recent case law some judges have distanced themselves from suggestions that criterion (iii) as set out in Pinnock is definitive for the high threshold it apparently sets: see the reservations and qualifications set out in R (on the applications of Haney, Kaiyam, and Massey) v Secretary of State for Justice [2014] UKSC 66, paras 18–21, when Lord Mance and Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agreed) stressed that Pinnock criterion (iii) was no more than an attempt ‘at general guidelines’, and that a ‘context specific’ approach was always required, para 21. – And see now especially R (on the application of Nealon/Hallam) (Appellant) v Secretary of State for Justice (Respondent) [2019] UKSC 2 when the points made in Kaiyam (ibid) were reiterated by Lord Mance, para 72, and Lord Wilson, paras 89–90, with Lord Hughes suggesting that the UK court’s ‘ultimate responsibility is to arrive at its own decision on those Convention rights which are given domestic legal effect by’ (emphasis added) the HRA, albeit this was conditioned by a ‘desire if at all possible to maintain consistency of approach with the Strasbourg court’, para 126. By contrast, see Lord Reed who regarded Pinnock as ‘persuasive’, and who would require ‘compelling justification’ for taking the ‘exceptional step’ of not following a Grand Chamber ruling meeting Pinnock criteria (i) and (ii), para 175. On Nealon/Hallam see fn 201 below.
60.
Chester, ibid. Prior to this, but also before Pinnock, see Secretary of State for the Home Department (Respondent) v AF (Appellant) [2009] UKHL 28, per Lords Hoffmann at para 70 and Lord Rodger at para 98 (concerning fair trial standards and important anti-terrorism measures).
61.
Cf Lord Sumption’s strong criticism of the lack of coherence in Strasbourg’s position, and its failure to adopt a ‘more realistic assessment of the margin of appreciation’, Chester (fn 59), para 138.
62.
This would seem to be the view of Lord Judge, ‘Constitutional Change’ (fn 28) and Laws LJ, ‘The Common Law and Europe’ (fn 28). On the possible move away from Pinnock, see points made in Nealon/Hallam (fn 59).
63.
See Part VI.
64.
Lord Kerr, ‘The UK Supreme Court’ (fn 28): the UK judge should no longer be ‘the modest underworker [of Strasbourg]’; see also Lord Neuberger, ‘Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights’, 18 August 2016, [48] (UK judges ‘initially […] too readily prepared to follow decisions of […] Strasbourg’, but were ‘now more ready to refuse to follow, or to modify or finesse, their decisions, as we become more confident in forming our own views about Convention rights’. See also comments made by Lord Neuberger before the (Parliamentary) Select Committee on the Constitution (25 June 2014) (‘Revised transcript of evidence taken before The Select Committee on the Constitution’).
65.
See Part VI below.
66.
Recent case law has seen a renewed emphasis on the (limited) protection that the common law can afford: R Masterman/S Wheatle, ‘A common law resurgence in rights protection?’ (2015) 1 European Human Rights Law Review 57–65.
67.
See Lord Hoffmann, ‘Judges, Interpretation and Self-Government, in Barber/Ekins/Yowell (fn 26), pp 67–72, at 71–72.
68.
See Straw (fn 53) and Hoffmann ‘The Universality of Human Rights’ (fn 28), para 39 (‘we have not surrendered our sovereignty […]’ etc). See also the point made by Lord Sumption, text attached to fn 136 below (‘constitutional change’ not by ‘diplomats’).
69.
Cf comments made by Lady Justice Arden, ‘An English Judge in Europe’ (fn 28), at para 52.
70.
Cf when the matter was litigated under the HRA (in 2001, before Strasbourg heard the matter) the issue of law reform was regarded as ‘plainly a matter for Parliament not for the courts’, per LJ Kennedy in The Queen on the applications of Pearson and Martinez v The Secretary of State for the Home Department [2001] EWHC Admin 239 (4th April, 2001). See also Lord Sumption in Chester (fn 59).
71.
For a forthright view, see Sumption (fn 28) above. See also Lord Sumption, ‘Publication Review’ (2017) 133 Law Quarterly Review 338–340, at 338.
72.
Consider the following perspectives. Lord Judge, ‘Constitutional Change’ (fn 28), para 48, not ‘a pro or anti-European stance’, but arguing Strasbourg’s growing influence raised ‘a constitutional issue’ for reasonable people could take different view on matters such as prisoner voting rights and the whole life tariff; his ‘personal belief’ being that ‘parliamentary sovereignty on these issues should not be exported’. – Laws LJ ‘The Common Law and Europe’ (fn 28), paras 35–36. Laws LJ argued that the law of human rights should focus on the protection of ‘what are properly regarded as fundamental values’, not ‘marginal choices about issues upon which reasonable, humane and informed people may readily disagree’. He argued that ‘in a debate on Convention issues where there may be more than one civilised view, the balance to be struck between policy and rights, between the judiciary and government, is surely a matter for national constitutions’. See also Laws LJ, ‘Are Human Rights Undemocratic?’ in A Seibert-Fohr/ME Villiger (eds), Judgments of the European Court of Human Rights: Effects and Implementation (2014), pp 187–192, at 190–192.
73.
From many sources, see discussion in, Lord Hoffmann (fn 28), Lord Sumption (fn 28), and Lord Judge, ‘Constitutional Change’ (fn 28), and Laws LJ, ‘The Common Law and Europe’ (fn 28), above.
74.
This aspect is strongly argued in Straw (fn 53), pp 26 et seq. See also Lord Sumption, ‘A Response’ in Barber/Ekins/Yowell (fn 26), pp 213–224, at 224. The criticism was also implicit in Hoffmann (fn 28) (‘Universality’, and ‘Judges’), as well as Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] Public Law 237–252.
75.
Straw, ibid; see also Lord Judge, ‘The View From London’, Counsel, October 2014, and discussion in Bates, ‘Democratic Override’ (fn 6).
76.
Cf S 4 HRA.
77.
See Fribergh, ‘The European Convention’ (fn 20).
78.
See Jagland, ‘ECHR Judicial Seminar 2018’ (fn 20).
79.
See Report of the Wilton Park Conference “2020 Vision for the European Court of Human Rights (17–19 November 2011, WP 1139)” DH-GDR(2012)001, p 2.
80.
See fn 10 above.
81.
See Straw (fn 53); see also Lord Irvine (fn 54).
82.
See Hansard HC Debates Vol 523, 11 February 2011, Col 493.
83.
See, for example, comments made during the House of Commons’ debate on prisoner voting (10 February 2011): David Davis MP (fn 82), Col 497. See also Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws (3 October 2014), <www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf>.
84.
Straw (fn 53); see also, by implication, Irvine (fn 54).
85.
Hoffmann (fn 28), and see below Part IV.
86.
See fn 6 above and fn 106 below.
87.
See fn 212 below.
88.
See S Lloyd, ‘Deportation and the Human Rights Act 1998: Debunking the Myths’ in F Cowell (ed), Critically Examining the Case Against the 1998 Human Rights Act (2017), pp 136–150. The Immigration Act 2014 (section 19) constitutes an attempt by Parliament to guide the UK courts on the application of Article 8 ECHR, setting out relevant ‘public interest’ justifications for deportation. It identifies a presumption of deportation for non-nationals who have committed criminal offences and dictates that the public interest requires the deportation of a person sentenced to a period of imprisonment of four years or more, subject to very limited restrictions. For incisive analysis, from the perspective of UK-Strasbourg relations, see C Harlow, ‘The HRA and “Coordinate Construction”: Towards a “Parliament Square” Axis for Human Rights?’ in Barber/Ekins/Yowell (fn 26), pp 153–174, at 165–168, and 173–174.
89.
The Article 3 restrictions imposed by Chahal v UK [GC] Appl No 22414/93 (ECtHR, 15 November 1996) has been a source of some controversy for some time, and has been challenged by the UK in the past: see D Moeckli, ‘Saadi v Italy: the rules of the game have not changed’ (2008) 8 Human Rights Law Review 534–548. The Strasbourg jurisprudence established that robust and effective ‘Memoranda of Understanding’ may overcome the Chahal principle, as was demonstrated by the ‘Abu Qatada’ case itself: Othman (Abu Qatada) v UK Appl No 8139/09 (ECtHR, 17 January 2012). On the Abu Qatada case, see J Middleton, ‘Taking rights seriously in expulsion cases: a case study’ (2013) 5 European Human Rights Law Review 520. Although there was much political criticism of Strasbourg the UK fully complied with ECHR law in the ‘Abu Qatada’ case.
90.
For a summary of the political backdrop, and for analysis, see J Rooney, ‘Extraterritorial derogation from the European Convention on Human Rights in the United Kingdom’ (2016) 6 European Human Rights Law Review 656–663. The Conservative Party 2017 Manifesto (at p 41) states that British Armed Service Personnel would be subject to international law, ‘not the European Court of Human Rights’. There are strong arguments that the implications of the ruling in Hassan v UK [GC] Appl No 29750/09 (ECtHR, 16 September 2014) should mitigate many legal concerns about the extra-territorial application of the Convention, see [ibid].
91.
On which see fn 113 below.
92.
See also Conservative Party (fn 83). This proposed changing the UK’s human rights laws including the introduction of a British Bill of Rights and Responsibilities, should the Conservatives be elected in May 2015. Under new domestic human rights arrangements ‘Convention rights’ (notably those concerning Articles 3 and 8 ECHR in the context of immigration) would have been read in a British (in fact, Conservative) rather than Strasbourg way. Clear references were made to the Court’s illegitimate ‘mission creep’ (the aggrandisement argument). – The document was criticised for its inaccuracies, amongst other things, from academics and commentators, including the by-then former (Conservative) Attorney-General, Dominic Grieve QC MP, ‘Why Human Rights Should Matter to Conservatives’, lecture delivered at UCL, 3 December 2014 (available at <www.ucl.ac.uk>).
93.
For example, see comments made by Jack Straw MP, during the House of Commons’ debate on prisoner voting (fn 82) at Col 504.
94.
See A Follesdal, ‘Squaring the circle at the battle at Brighton: is the war between protecting human rights or respecting sovereignty over, or has it just begun?’ in OM Arnardóttir/A Buyse (eds), Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU and National Legal Orders (2016), pp 189–204. See various speeches delivered in connection with the UK Chairmanship: Dominic Grieve, ‘European Convention on Human Rights: current challenges’ (24 October 2011), and David Cameron, ‘Speech on the European Court of Human Rights’ (25 January 2012).
95.
On which, see D Walton, ‘Subsidiarity and the Brighton Declaration’ in Seibert-Fohr/Villiger (fn 72), pp 193–206, at 195.
96.
Brighton Declaration, para 12(a). See also paras B 11, B 12 (b), and (d) and 25(c). See also High Level Conference on the Implementation of the European Convention on Human Rights, ‘Brussels Declaration’ (27 March 2015), (inviting the Court to ‘remain vigilant in upholding the States Parties’ margin of appreciation’, para 7). See also the Copenhagen Declaration (April 2018), especially at paras 6–11 and 26–32.
97.
Brighton Declaration, para 12(b), emphasis added.
98.
Joint Committee of Human Rights, ‘Protocol 15 to the ECHR’ HL Paper 71/HC 837, para 3.17. See also R Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487–502 and ‘The future of the European Court of Human Rights: subsidiarity, process-based review and the rule of law’ (2018) 18 Human Rights Law Review 473–494 (Robert Spano is a judge at the Court); see, by the former President of the Court, D Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine — Waiver or Subsidiarity of European Review?’ (2012) 14 Cambridge Yearbook of European Legal Studies 381–418, and ‘Whither the Margin of Appreciation?’ (2014) 67 Current Legal Problems 49–65.
99.
See Spano, ibid; see also E Bates, ‘Activism and self-restraint: the margin of appreciation’s Strasbourg career – its coming of age?’ (2016) 36 Human Rights Law Journal 261–276. On the broader ‘rebalancing’ effects of the reform process, see MR Madsen, ‘Rebalancing European Human Rights: Has the Brighton Process Engendered a New Deal on Human Rights in Europe?’ (2017) Journal of International Dispute Settlement 1–24.
100.
Conservative Party (fn 83).
101.
Lord Faulks QC and Jonathan Fisher QC, individual Paper included within A UK Bill of Rights: The Choice Before Us (fn 38), p 182.
102.
The Conservative Party Manifesto 2015, p 60. A British Bill of Rights’ would ‘restore common sense to the application of human rights in the UK’. It would remain ‘faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights’, but it would ‘reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society’, ibid at p 73. The document went on: ‘[a]mong other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation’.
103.
She stated that it could ‘bind the hands of Parliament’, yet it ‘add[ed] nothing to our prosperity, ma[de] us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of Governments like Russia’s when it comes to human rights […]’, The Guardian, ‘UK must leave European convention on human rights, says Theresa May’, available at <www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum>.
104.
The (post-Brexit) Conservative election manifesto of 2017 stated that the UK would remain a Member State to the Convention ‘for the duration of the next Parliament’. It added that the Conservatives will not ‘repeal or replace’ the Human Rights Act ‘while the process of Brexit is underway’, but that ‘we will consider our human rights legal framework when the process of leaving the EU concludes’.
105.
See fn 6 above.
106.
S3 of the Representation of the People Act 1983.
107.
Hirst v UK No 2 [GC] Appl No 74025/01 (ECtHR, 6 October 2005).
108.
See Lord Sumption’s criticism of Strasbourg’s position, Chester (fn 59) at paras 131–138. See also J Finnis, ‘Judicial law-Making and the “Living” Instrumentalism of the ECHR’ in Barber/Ekins/Yowell (fn 26), pp 73–120.
109.
Fn 107 above, joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens.
110.
It stated: ‘That this House notes the ruling … in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand’, carried by 234 to 22 (twenty two) votes, fn 82 above.
111.
See Scoppola v Italy No 3 [GC] Appl No 126/05 (ECtHR, 22 May 2012). See the separate opinion of Judge Björgvinsson claiming the Court had backtracked.
112.
HC Deb, vol 517, col 921 (3 Nov 2010).
113.
Report of the Joint Select Committee on the Draft Voting Eligibility (Prisoners) Bill (18 December 2013): <www.parliament.uk/business/committees/committees-a-z/joint-select/draft-voting-eligibility-prisoners-bill/>. The Report did acknowledge concerns about Strasbourg activism in relation to Parliament, see para 230, but took the view that, on balance, the UK should comply with Hirst, see chapter 8 of the Report.
114.
See fn 59.
115.
A declaration of incompatibility (s 4 HRA) had already been issued in an earlier court ruling; diplomatically the UK Supreme Court declined to issue a new declaration in Chester.
116.
F de Londras/K Dzehtsiarou, ‘Mission Impossible? Addressing non-execution Through Infringement Proceedings in the European Court of Human Rights’ (2017) 66 International and Comparative Law Quarterly 467–490, at p 477. See also the discussion of the UK perspective at pp 476–478, and regarding ‘principled non-execution’, cf discussion by Donald (fn 23).
117.
Resolution CM/ResDH(2018)467, adopted by the Committee of Ministers on 6 December 2018 at the 1331st meeting of the Ministers’ Deputies.
118.
DH-DD(2017)1229 of 2 November 2017.
119.
On the closing of the case by the Committee of Ministers, see Andreas von Staden, ‘Minimalist Compliance in the UK Prisoner Voting Rights Cases’, available at <http://echrblog.blogspot.com>; von Staden suggests that the closure of the case may have been to ‘cut the UK […] some slack’ and/or that the Committee of Ministers wished ‘to signal to the Court that it considers the latter’s jurisprudence with respect to prisoner voting rights as too activist and the margin of appreciation granted to states as too narrow’.
120.
See comments made by the Lord Chancellor and Secretary of State for Justice (Mr David Lidington), HC Debates, 2 November 2017, Vol 630 Col 1007.
121.
For lessons that may be learned by Strasbourg regarding the handling of the prisoner voting matter, see Bates, ‘Democratic override’ (fn 6), pp 291–295.
122.
This was the minority view in Report on the Draft Voting Eligibility (Prisoners) Bill (fn 113), p 81.
123.
See text accompanying fn 113.
124.
Fn 113 above (Report) para 113, and see Jagland (fn 19).
125.
See Part VI below.
126.
Fn 1.
127.
See fn 28, and E Bates, ‘The Senior Judiciary on “Strasbourg” – More Supportive Than Some Would Have You Believe’, 25 May 2015, available at <http://ukconstitutionallaw.org>.
128.
Fn 28; Lord Hoffmann, ‘Judges, Interpretation and Self-Government’, in Barber/Ekins/Yowell (fn 26), pp 67–72.
129.
Lord Judge, ‘Constitutional Change: Unfinished Business’ (fn 28); see also Lord Judge, ‘The View From London’ (fn 75).
130.
Fn 28; see also Lord Sumption, ‘A Response’ in Barber/Ekins/Yowell (fn 26), pp 213–224.
131.
Fn 28; see also Laws LJ, ‘Are Human Rights Undemocratic?’ (fn 72).
132.
In late March 2014, The Daily Telegraph reported on an interview with the then Minister of Justice in which he maintained that ‘Britain’s most senior judges are increasingly supportive of the Conservative view that the European Court of Human Rights has “gone badly wrong” and should have less influence in this country’ (26 Mar 2014, ‘Chris Grayling: Senior judges back me over human rights reforms’, The Daily Telegraph).
133.
See especially Hoffmann ‘The Universality of Human Rights’ (fn 28).
134.
See fn 28 above (Laws LJ and Lord Judge).
135.
Ibid, see also Hoffmann ‘The Universality of Human Rights’ (fn 28), para 44.
136.
Lord Sumption, ‘A Response’ in Barber/Ekins/Yowell (fn 26), p 224 (‘serious constitutional implications’ of what was occurring, ‘which need to be recognised and discussed, by judges among others […]’; critical of Strasbourg’s approach to Article 8 ECHR, ‘which really has converted the Convention into a permanent engine of legal change without any kind of democratic endorsement’, at p 217).
137.
Laws LJ, ‘The Common Law and Europe’ (fn 28), and Laws LJ, ‘Are Human Rights Undemocratic?’ (fn 72), p 190.
138.
Lord Phillips, ‘Force for Good’ (fn 2), p 9.
139.
Sumption, ‘The right to a court: Article 6 of the Human Rights Convention’ (fn 28), and Hoffmann ‘The Universality of Human Rights’ (fn 28).
140.
Fn 136 above.
141.
Fn 53 above.
142.
Hoffmann ‘The Universality of Human Rights’ (fn 28), para 27.
143.
Ibid para 38.
144.
Ibid para 39.
145.
Laws LJ, ‘The Common Law and Europe’ (fn 28), para 9.
146.
Ibid.
147.
See also L Hoffmann, ‘Judges, Interpretation and Self-Government’ in Barber/Ekins/Yowell (fn 26), pp 67–72 (critical of the Court’s purported illegitimate use of the living instrument doctrine; highlighting distinctions between domestic constitutions and international treaties, such as the Convention, and necessitating judicial self-restraint being exercised by Strasbourg (at pp 71–72). The factors in question were, in his opinion, ‘quite antithetical to the way in which the jurisprudence of the Court has developed’ (p 72)).
148.
Lord Phillips (former President of the UK Supreme Court) ‘Force for Good’ (fn 28), stressing that, generally, the Court did appreciate the necessary limitations on its role, and did not freely ignore carefully-considered British views on Convention rights.
149.
Regarding the margin of appreciation see, amongst others: Lady Justice Arden in Dialogue Between Judges (fn 28), pp 22–29 at 27; Baroness Hale in Dialogue Between Judges (fn 28), pp 11–18 at 17–18 and Lord Phillips, ‘Force for Good’ (fn 28), p 7 (‘insufficient margin of appreciation’; hoping Court will ‘pay regard’ to Protocol No 15), also p 13.
150.
N Bratza, ‘The Relationship between the UK Courts and Strasbourg’ (2011) 5 European Human Rights Law Review 505–512; J-P Costa, ‘The Relationship between the European Court of Human Rights and National Constitutional Courts’ (2013) 3 European Human Rights Law Review 264–274 (Costa was one-time President of the Court, as was Bratza); P Mahoney, ‘The Relationship between the Strasbourg Court and the National Courts’ (2014) 130 Law Quarterly Review 568–586.
151.
Article 19 ECHR.
152.
Article 46 § 1 ECHR.
153.
Since the argument relates to the extent of Strasbourg’s role, it is not automatically defeated by the case that may be made that, overall, the Convention regime is consistent with political constitutionalism: on the latter, see, R Bellamy, ‘The Limits of Lord Sumption: Limited Legal Constitutionalism and the Political Form of the ECHR’, in Barber/Ekins/Yowell (fn 26), pp 193–211.
154.
Cf Sumption (fn 28); this was also a very strong theme presented by Straw (fn 53).
155.
Cf comments made by Mahoney (fn 14).
156.
Comments made (in criticism) by L Wildhaber/A Hjartarson/S Donnelly, ‘No Consensus on Consensus? The Practice of the European Court of Human Rights’ (2013) 31 Human Rights Law Journal 248–263, at 256.
157.
Cf 2015 speech of then retiring Registrar of the Court, Erik Fribergh, who stated that he could understand why some politicians (and presumably some national Judges) were now tempted to criticize the Court, compared to past years when Strasbourg tended to attract universal praise. In his view, ‘this [relatively new] development [was at least partly] explained by the proportions our Court has taken’, with the ‘decisions of the Court influenc[ing] political decisions to a much larger extent today [than in the past]’, Fribergh, ‘The European Convention’ (fn 20), p 315.
158.
The former President of the Strasbourg Court, Luzius Wildhaber, recognised that, whilst some criticism of Strasbourg was overtly political, what was occurring could also be seen as push-back on the ‘Strasbourg Convention system and its Court’ as a ‘veritable growth machine in practically every respect’. As he saw it, ‘[w]ith the increase in size, dimensions and impact of the parameters of the Convention, the system was bound to be confronted with an increase of criticism’, L Wildhaber, ‘Recent criticism of the European Court of Human Rights’, in G Hafner/F Matscher/K Schmalenbach (eds), Völkerrecht und die Dynamik der Menschenrechte: Liber Amicorum Wolfram Karl (2012), pp 160–172, at 160–161.
159.
Registrar Erik Fribergh expressed the view that it should not be suggested that ‘all the criticism [of the Court] is simply wrong and [that] the Court is always right’. He said that he found ‘some of the criticism is justified but most of it is not’. In his personal view, he thought ‘the Court ha[d] gone too far in some judgments’, although these were ‘few’ in number. But he also thought there were ‘examples where the Court has not been courageous enough to come to a finding of a violation’. ‘In reality’, Fribergh noted, ‘the Court is criticised both for going too far and for not going far enough’, depending on the perspective adopted toward it, Fribergh, ‘The European Convention’ (fn 20), p 315. See also M O’Boyle (then Deputy Registrar of the Court), M O’Boyle, ‘The Legitimacy of Strasbourg Review: Time for a Reality Check?’ in P Titiun (ed), La conscience des droits : mélanges en l’honneur de Jean-Paul Costa (2011), pp 489–498, at 495 (‘the Court [should] strive for a better balance between judicial self-restraint and judicial activism in its decision-making’).
160.
In this connection, arguably Strasbourg has responded: see Bates, ‘Activism and self-restraint’ (fn 99), pp 270–275.
161.
Wildhaber (fn 158), p 162.
162.
Wildhaber (fn 158), p 165.
163.
See Walton (fn 95).
164.
See, for example, the (Council of Europe) Steering Committee on Human Rights/CDDH, ‘CDDH Collective Response to the Court’s Jurisconsult’s notes on the principle of subsidiarity and on the clarity and consistency of the Court’s case-law’ (Appendix to: CDDH contribution to the Ministerial Conference organised by the United Kingdom Chairmanship of the Committee of Ministers, Adopted by the CDDH on 10 February 2012) at paras 3–14.
165.
See, Report of the Wilton Park Conference “2020 Vision for the European Court of Human Rights (17–19 November 2011, WP 1139)” (DH-GDR(2012)001, at p 5 (criticism of ‘living instrument’ approach, which ‘may now have reached its limits’; call for greater emphasis on subsidiarity, and ‘a need to “rebalance” relations between the Court and national courts, because the Strasbourg Court has become too “interventionist”’).
166.
See Part IV.
167.
Fn 74 above (Straw and Irvine).
168.
See text accompanying fn 17.
169.
M O’Boyle, ‘The Legitimacy of Strasbourg Review: Time for a Reality Check?’ (fn 159), p 494.
170.
Spano (fn 98).
171.
See materials referred to in fn 98–99, and fn 95.
172.
Fn 98 above.
173.
See, for example, UK Joint Committee on Human Rights, ‘Written evidence from Dr Alice Donald (HRA0021): 20 years of the Human Rights Act inquiry’, 14 September 2018 at pp 2–4 (citing Ndidi v UK Appl No 41215/14 (ECtHR, 14 September 2017) (Article 8 deportation/immigration); Ibrahim and Others v UK [GC] Appl Nos 50541/08, 50571/08, 50573/08 and 40351/09 (ECtHR, 13 September 2016) (criteria for the assessment of fairness in criminal cases); National Union of Rail, Maritime and Transport Workers v UK, Appl No 31045/10 (ECtHR, 8 April 2014) (ban on taking secondary industrial action) and Shindler v UK, Appl No 19840/09 (ECtHR, 22 April 2013) (voting rights of non-resident citizens)).
174.
A leading, comprehensive work is L Glas, The Theory, Potential and Practice of Procedural Dialogue in the ECHR System (2016).
175.
See fn 56–65.
176.
LJ Arden, ‘An English Judge in Europe’ (fn 28), at para 52; C Harlow suggests the UK Supreme Court has started to take its ‘rightful place amongst the supreme courts of other nations’, in terms of its ability to warn off Strasbourg from taking decisions that are too expansive, C Harlow, ‘Administrative Justice and the Parliament Square Axis’ (Judicial Power Project, September 2017) at p 8. See also Harlow, ‘The HRA and “Coordinate Construction”’ (fn 88), p 164 (UK Supreme Court starting to ‘reclaim the authority of British courts in human rights adjudication’).
177.
Bratza (fn 150).
178.
See, for example, Paulo Pinto de Albuquerque (Judge of the Strasbourg Court), ‘Plaidoyer for the European Court of Human Rights’ (2018) 2 European Human Rights Law Review 119–133.
179.
Animal Defenders International v UK [GC] Appl No 48876/08 (ECtHR, 22 April 2013).
180.
R (Animal Defenders International) v Secretary of State for Culture, media and Sport [2008] UKHL 15: cf Lord Bingham’s comment referring to ‘the importance of this case to the functioning of our democracy’ and to relevant ‘very familiar but fundamental principles’, para 26; and Baroness Hale’s concerns, para 48.
181.
[2008] UKHL 15 at [35].
182.
Fn 179 above, joint dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vučininć and De Gaetano, para 1.
183.
Harlow, ‘The HRA and “Coordinate Construction”’ (fn 88), p 173.
184.
See text accompanying fn 57 above.
185.
Lord Irvine (fn 54) above.
186.
R v Horncastle [2009] UKSC 14.
187.
Al-Khawaja v UK [GC] Appl Nos 26766/05, 22228/06 (ECtHR, 15 December 2011).
188.
20 January 2009.
189.
In the UK Supreme Court’s opinion, the relevant Strasbourg standard on Article 6 § 1 and 6 § 3(d) ECHR amounted to ‘inflexible, unqualified principle’ (Lord Brown, fn 186, para 113). If Strasbourg’s standard was adopted, the result would be ‘many guilty defendants […] going free’, Lord Brown ibid.
190.
‘Minutes of Evidence Taken Before Joint Committee on Human Rights (Uncorrected Transcript)’, 15 November 2011, HC 873-ii per Lord Phillips, at Q78.
191.
Ibid per Lord Judge, at Q78.
192.
[2017] UKSC 36 (10 May 2017).
193.
Fazia Ali v UK Appl No 40378/10 (ECtHR, 20 October 2015).
194.
Ibid, para 60.
195.
Ibid, paras 74–88. The UK government did not seek a rehearing before the Grand Chamber.
196.
[2010] 2 AC 39.
197.
See Lord Carnworth (fn 192), paras 19, and 32–33.
198.
Ibid, para 37.
199.
Vida Poshteh v UK Appl no. 78375/17, 20 December 2018.
200.
See text accompanying fn 63.
201.
Fn 59. See L Graham, ‘Hallam v Secretary of State: Under What Circumstances Can the Supreme Court Depart from Strasbourg Authority?’, 4 February 2019, available at <http://ukconstitutionallaw.org>.
202.
R (Adams) v Secretary of State for Justice [2012] 1 AC 48 (11 May 2011).
203.
Allen v UK [GC] Appl No 76574/01 (ECtHR, 12 July 2013).
204.
Nealon/Hallam, Lord Reed para 175, fn 59. Lord Kerr was also in the minority.
205.
As noted above, all three judges argued that a loose approach be adopted to the ‘Pinnock criteria’, see discussion in fn 59.
206.
Lord Wilson, para 83.
207.
Lord Mance para 73 (Lord Hughes spoke of ‘considerable difficulties in application, frequently leading either to inconsistent outcomes or to over-sophisticated semantic analysis in an effort to achieve the right result’, para 126; Lord Wilson, regarded the Strasbourg case law as ‘not just wrong but incoherent’, para 90).
208.
Lord Wilson para 85.
209.
Ibid.
210.
Lord Mance, para 74, and Lord Wilson para 94(c) (‘conscientiously unable to subscribe to the ECtHR’s analysis’).
211.
See text following fn 58.
212.
Vinter and Others v UK [GC] Appl Nos 66069/09, 130/10, 3896/10 (ECtHR, 9 Jul 2013).
213.
The Court of Appeal is the second most senior court in the UK.
214.
R v McLoughlin, R v Newell, Court of Appeal, Criminal Division, 18 February 2014 [2014] EWCA Crim 188.
215.
Hutchinson v UK [GC] Appl No 57592/08 (ECtHR, 17 January 2017).
216.
Ibid, paras 35–40.
217.
Ibid para 36. On the general matter, see the incisive analysis provided by L Graham, ‘From Vinter to Hutchinson and back again?’ (2018) European Human Rights Law Review 258–267.
218.
See Vinter paras 119, 121, 135 (last para within) and 130. See also Concurring opinion of Judge Mahoney at para 17.
219.
Ibid para 122 (penultimate sentence).
220.
See ibid para 125, suggesting Vinter would support this.
221.
J Bild, ‘Whole Life Orders: Article 3 Compliant After all’ (2017) 76 Cambridge Law Journal 230–233, at 230.
222.
Ibid at 231.
223.
Cf comments made by Laws LJ, ‘Are Human Rights Undemocratic?’ (fn 72) and Lord Judge, ‘Constitutional Change’ (fn 72).
224.
Fn 55 (AF), para 98.
225.
Fn 54 above.
226.
Ibid at p 247.
227.
Fn 98 above.
228.
See Part VI above.
229.
See, especially, M Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28 European Journal of International Law 763–785. For the ‘UK’ political constitutionalist critic, however, the response would be that the excellence of laws cannot be justified by a lack of a legitimate (Strasbourg) mandate to impose them, cf Lord Sumption, ‘Publication Review’ (fn 26), p 340; see also Lord Hoffmann, ‘Judges, Interpretation and Self-Government, in Barber/Ekins/Yowell (fn 26), pp 67–72, at 72 (arguments for a ‘benevolent dictatorship’ should not be accepted).
230.
See, by comparison, fn 38 above.
231.
Cf fn 37 above (Lord Neuberger).
232.
Bates (fn 5).
233.
Fn 212–223.
234.
Fn 119.
235.
Fn 2.
236.
Fn 1.

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Bates, E. (2019). Principled Criticism and a Warning from the ‘UK’ to the ECtHR?. In: Breuer, M. (eds) Principled Resistance to ECtHR Judgments - A New Paradigm?. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 285. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-58986-1_7

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