Note: for those interested in the “gays in the military” case search “Smith v UK” below
Three giants of law have entered the somewhat confected debate on the Britain’s relationship with the European Convention on Human Rights and the Strasbourg human rights court. Former House of Lords judge Lord Hoffmann, current UK Supreme Court justice Lord Sumption and Court of Appeal judge Lord Justice Laws have given significant intellectual underpinning to the simplistic arguments of the Conservative Party sceptics who claim to see a democratic deficit between government policies and Strasbourg judgments. The first out of the traps was Lord Hoffmann, giving the Alba seminar in October.
In his section of the seminar Hoffmann declared himself wholly happy with the majority view in Liversidge v Anderson AC 206 (1942).
No news there, one might think – retired judge backs even more ancient judges in 70-year-old court case. But history’s view has hitherto been different. The case hinged on an emergency wartime order used by Home Secretary Sir John Anderson to imprison Robert Liversidge (aka Jack Perlzweig) without trial and without apparent reason except to say he had “hostile associations”. Liversidge had sued for false imprisonment.
The order, Regulation 18(b) of the Defence Regulations 1939, said: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … he may make an order against that person directing that he be detained.”
The issue therefore was what is meant by “reasonable cause” – and in particular, can the court decide on reasonableness or should it simply defer to the judgment of the Home Secretary – a man in place as a result of a constitutional democratic process and there to protect us all?
Four of the five Law Lords preferred judicial deference – if the Home Secretary said there were “reasonable grounds” then that should be accepted. This is Hoffmann’s position, but lawyers and scholars have generally been more interested in Lord Atkin’s minority view: that Parliament meant there to be plausible evidence for detention; if there was not, and such evidence was not presented to the court, then the judges should declare the detention unlawful. The majority decision was, on this view, unconstitutional because it substituted the judges’ view – and indeed the Government’s view – for the will of Parliament.
Hoffmann does not seem to understand this. He takes a purposive view of the legislation and so believes the judges were right to “correct” it. Since the purpose of the statute was to protect the country from Nazi spies and the like, then the powers should be whatever was required to do that. In particular, whatever the Government (not Parliament) thought was required. The “reasonable cause” qualification could be interpreted subjectively to mean “if the Home Secretary felt he had reasonable cause”. Defence of the realm trumped constitutional niceties regarding the supremacy of Parliament.
Hoffmann brings all this up to date with a discussion of Section 3 of the Human Rights Act 1998. This says that when a British court considers a case: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [European] Convention rights.” Any judgment must be broadly in conformity with the human rights laid out in the ECHR. Hoffmann says that in the past the judge’s job in construing legislation was to correct language when there was ambiguity. He thinks that is what happened in Liversidge. Section 3, he complains, seems to be about correcting meaning – in other words in effect replacing words in the legislation with words from outside the legislation, in the Convention and in Strasbourg human rights judgments. He asks whether it is democratic for judges to “correct” legislation in this way.
‘So close an adherence to Strasbourg gravely undermines the autonomous development of human rights law by the common law courts’ – Lord Justice Laws
Dinah Rose QC, at the same event, pointed out that, yes, it is democratic because a democratic Parliament passed Section 3. But Hoffmann seems to want to treat Section 3 as the majority in Liversidge treated Regulation 18(b) – it was passed by Parliament but the Government doesn’t like it so judges should defer to the Executive, not to the Legislature. The Government should get its way in the courts. This will be pleasing to the Conservative human rights sceptics – and to pretty much any Government. It suggests the courts are not there to interpret the will of Parliament as evinced on the face of the legislation (which is what we always thought judges were there to do) but in crucial areas to interpret the will of the Executive and to ensure it is given precedence – over Parliament and over the Government’s treaty obligations under the ECHR.
Lord Justice Laws
So to Lord Justice Laws’ third Hamlyn Lecture of November, which can be found here. Laws too looks at an important judgment of past years, that of R v Special Adjudicator (ex parte Ullah)  UKHL 26. This was an Article 9 freedom of thought, conscience and religion case.
Laws takes issue with this from Lord Bingham: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time.” This implies quite strongly that British courts should, for the most part, follow the judgments of the Strasbourg court, treating them as precedents and hence binding on British courts.
The Human Rights Act Section 2(1) says: “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights …”.
Laws examines this language, sees it as merely suggesting that courts consider Strasbourg jurisprudence and asks: “Are our courts more subservient than they need be to the jurisprudence of the European Court of Human Rights?”
Bingham had acknowledged that the wording of S.2 meant such jurisprudence was not “strictly binding” but “it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”. Laws, however, says “this approach represents an important wrong turning in our law”. “Take into account” does not mean “abide by”. He complains that otherwise: “So close an adherence to Strasbourg gravely undermines the autonomous development of human rights law by the common law courts.”
In other words he wants to see a British road to human rights, informed by Strasbourg, but not following its map (or satnav perhaps) at every turn. His words will be music to Tory ears not least because he implies strongly that UK judges should have agreed with the Attorney General when he asked the Supreme Court in R (Chester) v Secretary of State for Justice  UKSC 63 not to apply the principles in the two Strasbourg decisions relating to prisoners’ voting rights (Hirst v UK (No 2) and Scoppola v Italy (No 3)). The court rejected the AG’s position and the Government has been looking for some other way to avoid bringing in prisoner voting ever since.
Laws quotes Lord Sumption in Chester on the “take into account” issue: “A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject.”
This is a statement of the long-standing principle that judges may assume governments intend in their actions to abide by international treaties that they are signed up to (albeit via previous governments). Article 46.1 of the Convention provides: “The High Contracting Parties undertake to abide by the final judgment of the [Strasbourg] Court in any case to which they are parties.” So there would seem to be a triple lock binding British law to Strasbourg jurisprudence: Section 2 of the HRA, longstanding treaty law, and the Art 46 words of the treaty itself – all sanctioned by interpretations in the highest British court in the land.
But this is not enough for Laws. He insists there should instead be “a domestic law of human rights, taking account (in the proper but limited sense of the term) of the Strasbourg cases”. Art 46.1, he says, relates only to United Kingdom cases decided at Strasbourg, not foreign cases that “on the facts may have nothing whatever to do with the United Kingdom”.
But this must surely be absurd. Britain may go its own way on prisoner votes, for example, but once it is taken to Strasbourg, that court will consider the matter according to its own precedents. In taking account of Strasbourg jurisprudence (in the stricter sense of assessing whether the foreign cases are comparable with the British case and, if so, applying their principles to the British case) then UK courts are simply following the Human Rights Act and cutting out the necessity of one more stage of appeal. If they fail to apply Strasbourg jurisprudence, there will always be grounds to appeal – with the cost and delay and the justice denied that that implies. And Britain will always lose.
Laws believes, however: “There may perfectly properly be different answers to some human rights issues in different States on similar facts. I think the Strasbourg court should recognise this. The means of doing so is readily at hand: the doctrine of the margin of appreciation.”
Well, yes, and the Strasbourg court does recognise this – that the histories and cultures of different countries within the Convention mean distinct approaches to human rights, but only as long as the tendency is in the same direction – as long as human rights are extended to people, not denied them. So Strasbourg has not demanded votes for all prisoners. The extent to which Britain brings in prisoner voting remains Britain’s affair, within the margin of appreciation, but it cannot simply refuse to do so at all.
Laws says “political controversies and resentments concerning Europe, in which of course I have no voice and claim none, may undermine the confidence which thinking people ought to have in the Common Law’s catholicity”. In other words the people of Britain will resent the importation of European legal concepts of “proportionality” and the teleological approach – interpreting the words of the document, the legislation, in the light of developing social values – and where social values are tending, not just where they are now. Laws in fact has a rather strong voice – and it will be heard with pleasure by the Conservative human rights sceptics (as the Guardian notes).
All of which brings us neatly to Lord Sumption’s 27th Sultan Azlan Shah Lecture, in Kuala Lumpur, also in November 2013.
It is exactly the teleological approach that Sumption objects to and the suggestion that human rights are fundamental, universal and acknowledged by all so they can be established without political-constitutional context. And that judges’ role is to apply the known and absolute values in real world circumstances.
Sumption takes a narrow view of the word “democracy” – it is to do with the outcomes of a democratic constitution, whether the laws or the specific policies of the governments produced by a democratic constitution; it is not to do with a suite of agreed rights. He says that “the Convention and the Strasbourg court use the word [democracy] … as a generalised term of approval for a set of legal values which may or may not correspond to those which a democracy would in fact choose for itself”.
But worse than that, Strasbourg “interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date” .
What he is saying, and what he fears, is that ideas of what should be human rights are evolving, and Strasbourg lawyers have an eye to the future when making their judgments. This European teleological process is anathema to English law, with its doctrine of precedent and insistence on legal certainty – that when you enter a court you should know that judges will assess your case pretty well on the basis of how such cases have been assessed in the past.
‘To give the force of law to values for which there is no popular mandate is democratic only in the sense that the old German Democratic Republic was democratic’ – Lord Sumption
The problem with the Strasbourg approach, as far as Sumption is concerned, is that judges are deciding where “social conceptions” are going rather than parliaments making those decisions with a democratic mandate to do so. The Strasbourg approach “has involved the recognition of a large number of new rights which are not expressly to be found in the language of the  treaty”.
As an example he cites the expansion of Article 8, protection for family life, privacy of the home and private life – and here he is at one with the Government (Tory, Labour or Coalition) outraged at being balked in its immigration decisions in particular by family life claims. (See, among other pieces: Theresa May’s meaningless statement on immigration.)
So Sumption says: “This perfectly straightforward provision [Art 8] was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides.” These are “contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention”. Now they are questions of law in which governments and parliaments are prevented from immediately getting their way; they can only argue their position before a court of law.
Sumption quotes (disapprovingly) Prof Ronald Dworkin: “I cannot imagine what argument might be thought to show that legislative decisions about rights are inherently more likely to be right than judicial decisions.” Sumption’s problem with this is put thus: “How do we decide what is the ‘right’ answer to a question about which people strongly disagree, without resorting to a political process to mediate that disagreement?” He, like Laws, looks at Hirst and Scoppola and says: “In both cases, the [Strasbourg] Court’s reasoning revealed its limited interest in the democratic credentials of such policies.”
But those credentials for Sumption seem to come down far more to the will of the Executive than that of the Legislature (as we have seen in Hoffmann’s arguments on Liversidge above), though Sumption does not say this. The Government should have its way on these tricky human rights issues – never mind by what arcane process that Government came to power, by whatever backroom deals, according to whatever powerful political voices that have to be appeased or according to whatever personal favours have to be done – and however far from the direct control of the people the Government is. It all counts as “democratic” in his narrow sense because it emerges from the politico-constitutional system – however undemocratic it might be in a wider sense.
But is Sumption right to have such faith in Executive, Legislature and demos to come up with the “right” answers?
Smith v UK
Take Smith and Grady v UK (1999) 29 EHRR 493. This is the famous “Gays in the military” case in which homosexuals were discharged from service in the Royal Navy and won their case at the European Court of Human Rights at Strasbourg on the grounds that the ban breached their right to a private life under Article 8 – just the sort of extension of the principle of private life that Sumption deplores.
The Common Law had not helped them; the British Parliament had not helped them (since no law had been passed preventing such a ban); the Government had not helped them since it in effect instituted the ban.
The British courts’ position was that the exclusion was “Wednesbury reasonable” that is, not “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223.) So, the argument ran, governments, a product of a democratic constitution, should be deferred to by the courts unless their decisions were wholly irrational.
But instead Strasbourg applied its own principles to the ban: was it “proportionate”? Was it “necessary in a democratic society”? The answer was no and the ban was declared unlawful.
We now know that having gays in the military is perfectly all right. Soldier Magazine has celebrated gender diversity with a gay serviceman on its cover. The Ministry of Defence has apologized (in 2007) for its former policy.
The English courts had been convinced it was perfectly all right to ban gays. They did not think teleologically: “How do we extend human rights from the current base of principles to cover more people, more minorities, to reduce discrimination in our laws and practices.” So those courts, based no doubt in “an active civil society”, came to the wrong decision and the ECtHR came to the right one.
But Sumption must surely disagree. His view seems not to be that he had enunciated in Chester. Instead he says: “To give the force of law to values for which there is no popular mandate is democratic only in the sense that the old German Democratic Republic was democratic.”
If we are bandying oppressive regimes, the reality is that to take Sumption’s position, that “democratic” is only that which is sanctioned by the people through the distorting prism of the constitution, is as democratic as that other miserable period of German history, the Nazi era.
The European Convention does indeed suggest a definition of democracy based on wide principles that include measures of protection for individuals and families and ethnic groups and political groups and gender groups – and other oppressed minorities that might emerge over time. It did that (as Sumption acknowledges) in recognition of how badly wrong things had gone in Nazi Germany when Hitler gained power by the process of winning an election according to the German constitution and fashioning a cynical parliamentary coalition which in effect gave support to his policies.
It bears repeating that the ideas behind the Convention were British, based on the Common Law that these mighty legal figures, Hoffmann, Laws and Sumption, suggest we return to. We don’t need to “return” to the principles of the Common Law because they are enshrined in the Convention – and have been developed by Strasbourg jurisprudence for the more complex modern age that we are living in and for the purpose of extending human rights whenever it is right to do so, not when the demos or its governments or its legislatures are ready to do so.
Lord Justice Laws insisted in his lecture that “the constitutional balance has evolved through the benign force of our constitution’s unifying principle, the common law … This benign continuum of developing law has been the means by which legislature and government are allowed efficacy but forbidden oppression.” Note the use of “benign” – which overlooks the civil wars, robber barons, evil monarchs, beheadings, invasions, riots and oppressions that were the crucible of the British Constitution.
In contrast the ECHR was developed out of the rather benign coming together around tables of modern, right-thinking people who wanted never to see a European cataclysm again. They considered the matter on the basis of agreed principles – based in the Common Law but not rigidly bound by it.
The archaic Common Law does not protect human rights in a modern world. It did not “forbid oppression” in the case of Smith; it deferred to the narrow, oppressive and wholly pointless prejudices of an elite, officers and gentlemen all. It did so on the dubious grounds that a government that made the decision to ban gays had a hold on power after a general election; that the courts should defer to such a government on defence issues (as in Liversidge).
The Common Law alone is not a fitting instrument to curb the overweening Executive claiming democratic sanction when making incursions into those wider democratic rights that Sumption sees in the Convention and apparently objects to. That is why the current overweening Executive wants to banish the European Convention. It is a shame such powerful legal figures are giving that project such intellectual credibility.
Laws LJ has practised his doctrine of “judicial deference” in the bedroom tax case MA and Others, which is examined here: Laws’ law of non-intervention. In it he said: “The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy.
Those interested in longish pieces about deference and the rule of law may like this item on Bingham’s rule of law: outdated? Utopian? It suggests there is currently a political and legal assault on the very notion of the rule of law.
These issues are also covered regularly in the eclectic and somewhat more populist Alrich blog. Sumption’s (and the Tories’) relativist approach to human rights is critiqued here: Conservative bill of rights – they are all relativists now.
In particular those interested in the ECHR may want to read about Lord Neuberger’s view on the matter: Judges too keen to use Human Rights Act powers. He was then Master of the Rolls but is now President of the Supreme Court. He said: “There is an argument that the judiciary, having been given this new power under the Human Rights Act, have become a little too enamoured with it, too keen to exercise it because it is a new power, and it may be that, as things settle down, the judiciary will pull back a bit from what it has been doing.”
Lord Judge also gave his view in 2011, in discussion with Lord Phillips, then Supreme Court President. See: Lord Judge says ignore Europe on human rights. Or does he? Judge asserted that European Union law is supreme in Britain, owing to the way the EU treaties and UK legislation on them are framed, but Strasbourg jurisprudence regarding the ECHR is not supreme. So: “I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the [EU] court of Luxembourg has to win because the legislation says so.”
Alrich may be followed on Twitter for updates on that blog and Thinking Legally: @alrich0660
Francis FitzGibbon QC takes a critical stance on Sumption in his Nothing like the Sun blog here
Mark Elliott looks at the Sumption speech in Lord Sumption on the limits of the judicial role and says a more developed doctrine of judicial deference would allow judges to “tailor their approach to judicial review to the institutional and constitutional circumstances of the case”.
Dan Bunting takes issue with Sumption and says: “Just because an issue raises political issues (or allocation of resources) or is of interest to politicians, does not mean that it is therefore a political question and beyond the reach of the courts.” He writes here.
Supreme Court justice Baroness Hale has now given the Warwick Law Lecture with a rather different take on these issues than Sumption, Laws et al. It’s here