In the first of a two part series we look at the continuing debate in the UK concerning the status of the Human Rights Act, case law from the European Court of Human Rights at Strasbourg (“ECtHR”), and its impact on UK domestic law. Specifically, we consider whether the decision to take the case of Hirst v UK[1] (a case concerning the right of prisoners to vote) to Strasbourg advances the cause of human rights in the UK.

In 2005 the ECtHR made a decision in the case of Hirst that the UK government’s blanket ban on prisoner voting was incompatible with the European Convention on Human Rights (“ECHR” or “the Convention”). This finding was recently confirmed to some extent in the case of Scoppola v. Italy.[2] Initially, as a result of Hirst, the government held a debate and subsequent division on the rights of prisoners to vote, the result of which was to maintain the same position.[3] Prime Minister David Cameron commented that the idea of giving prisoners the vote made him ‘feel physically ill’[4]. As a result of the government’s unaltered position, further claims were brought by other prisoners, relying on the decision in Hirst, to the extent that they were also being unlawfully denied the right to vote. The most recent decision of the UK Supreme Court on the issue was made in the case of Chester, who issued judicial review proceedings against the refusal of the Electoral Registration Officers’ to register him on the roll (§87).

The Supreme Court, in an agonising decision, found that, despite clear public and parliamentary support for the voting ban, the clear and constant jurisprudence of the Strasbourg court meant that a blanket prohibition continued to be incompatible with the ECHR, although found that there would be no point in making any further declaration of incompatibility in that case (§39). The case highlighted a variety of issues, but principally the tension between the interpretation of the Convention by the ECtHR, and the process by which laws are made in a democracy (§112), and caused considerable judicial soul-searching in the judgment itself and subsequently in various speeches given by the individual Supreme Court justices.

Whilst acknowledging that the blanket ban was unlawful following Strasbourg jurisprudence (§98), Lady Hale was clear in not considering that the human rights of either appellant were violated by the impugned decision, given the nature of their sentences (§99), and following the Strasbourg decision of Scoppola. Lord Sumption argued that purpose of the Convention was to protect the rights of minorities, to which prisoners only belonged ‘in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law’ (§112). He commented that there was no established consensus with regards to the question of prisoners’ rights to vote (§114), arguing that the right to vote for prisoners was not a ‘fundamental’ right, and could be better likened to a desire for ‘a period of fine weather all summer’ (§115). Lord Sumption concluded that the entire issue was a ‘classic matter for political and legislative judgment’ (§137), calling for a wider and more realistic assessment of the margin of appreciation which ‘would have avoided the current controversy’ (§138).

As a result not merely of Chester, or simply the issue of prisoner voting, but the widespread perception in the media and public created by these types of cases that sovereignty and decision-making powers are being exported out of the UK, there is considerable judicial disquiet in the senior courts.

Judicial dissent

The Diceyan orthodoxy that Parliament is sovereign in the making of law in the UK dominated constitutional thinking until relatively recently.[5] This view held that parliament (or, the Queen in parliament, including the Commons and the Lords) was supreme and could make or unmake any law it wished.[6] However, with ever-increasing European integration since the European Communities Act 1973, and the constitutional reform of the Labour government from 1997 onwards[7], especially in the incorporation of international human rights instruments into UK law by the Human Rights Act 1998, the doctrine of parliamentary sovereignty appeared to be slowly giving way to the incoming tide[8] of a ‘new and still emerging constitutional paradigm’ based on the rule of law.[9]

Senior members of the judiciary suggested that if Parliament did the unthinkable, then the courts would also be required to act in a manner which was without precedent.[10] The House of Lords heard the seminal case of Jackson[11] regarding the validity of the Hunting Act 2004, a case seen by many as a move towards as a restriction on parliamentary sovereignty.[12] Lord Steyn remarked that slowly but surely ‘the English principle of the absolute legislative sovereignty of Parliament’ was being qualified’.[13] The case of Jackson represented a clear judicial challenge to the Diceyan orthodoxy, under pressure from rights based claims.[14]

Almost ten years later and the tone of the highest courts and senior judiciary in the UK seems to be changing rapidly. Lord Kerr argued that the UK courts ‘have not been indissolubly tied to Strasbourg case-law and that it is ‘entirely healthy’ that as a country the UK should be ready to decline to be bound by decisions of ECtHR that we believe to be wrong’.[15] Judges have shown considerable consternation and frustration, even in their own judgments, with Lord Rodgers famously lamenting that ‘even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed’.[16]

Lord Judge recently commented that in his view the Strasbourg Court is not superior to our Supreme Court and that to ‘take account of the decisions of the European Court does not mean that you are required to apply or follow them’.[17] He concludes that ‘our judiciary cannot set aside the law enacted by Parliament, nor suspend it nor dispense with it. To do so would contravene the Bills of Rights.’[18] Many of the senior judiciary have suggested the ‘mirror principle’ set out by Bingham LJ in Ullah[19], which has exercised such a ‘controlling and pervasive’ influence over the application of Convention rights in the UK and is seen by some as the main reason for the damaging effect on perceptions of the HRA[20], should be revisited.[21]

Some of the most trenchant criticism has emanated from Lord Sumption who views the implementation of the ECHR in UK domestic law as positively anti-democratic.[22] Described as the British ‘Justice Scalia’ by some[23], Lord Sumption is perhaps the judicial embodiment of the public unease and, in some quarters, downright hostility to so-called judge-made law. However, Lord Sumption is not alone in making these criticisms, as seen above, and has strong support from Laws LJ, both in[24] and out [25]of court.

This change in outlook, in ten short years, arguably represents a sea-change in the approach of the senior judiciary to the implementation of the Convention in this country and a reaction stirred, perhaps, by the public perception that sovereignty is being surrendered across the channel. Indeed, there is acknowledgment amongst the judiciary that the problem is usually one of perception.[26] However, with cases such as Hirst and Chester, the argument that it is perception rather than a substantial problem becomes harder to sustain where it appears that Strasbourg is, in reality, short-circuiting the democratic process and transforming questions of policy into questions of law.[27]

The reason that such overt judicial criticism of ECtHR is potentially so damaging to the cause of human rights in the UK is twofold: firstly, it arguably gives a UK government, if it was so inclined license, or political cover, to refuse to be bound by the decisions of the Strasbourg court. We have seen this in the refusal to implement the decision in Hirst. This in turn raises the spectre of ‘contagion’, where other states take a similar line following adverse decisions at Strasbourg. Secondly, it gives weight to the arguments of those who wish to ‘return sovereignty to the UK’ and leave the Council of Europe. This could have serious implications for the UK’s standing in the world, and also add to the arguments made by Eurosceptics who wish to retreat from Europe and withdraw from the Union.

We will deal with each potential consequence in more detail in the second part of this post.

[1] Hirst v the United Kingdom (No 2) [2005] ECHR 681

[2] Scoppola v Italy (No. 3) – 126/05 [2012] ECHR 868 (22 May 2012), though in this case the court found that the Italian framework differentiated between different categories of prisoners and their eligibility to vote and was therefore lawful

[3] Chester, R (on the application of) v Secretary of State for Justice (Rev 1) [2013] UKSC 63, paragraph 117

[4] See http://www.telegraph.co.uk/news/politics/8317485/Prisoner-vote-what-MPs-said-in-heated-debate.html

[5] Bogdanor, V., The New British Constitution (Oxford, 2009), p.12

[6] Dicey, A. V., An Introduction to the Study of the Law of the Constitution (1959), p. 34-35

[7] See Bogdanor, The New British Constitution, p.4-5 for full list of constitutional reforms after 1997

[8] To paraphrase Lord Denning in Bulmer v Bollinger [1974] Ch 401

[9] Sedley, S., ‘Human rights: a twenty-first century agenda’ in Ashes and Sparks: Essays on Law and Justice (Cambridge, 2011), p.351

[10] Lord Woolf (1995). “Droit Public – English Style”. Public Law (1995) (1): 57-71.

[11] R (Jackson) v Attorney General, 2006 1 AC 262 (UKHL 2006)

[12] Mullen, T., ‘Reflections on Jackson v. Attorney General: Questioning Sovereignty’, 27 Legal Stud. 1 (2007)

[13] R (Jackson) v Attorney General, 2006 1 AC 262 (UKHL 2006) at 104

[14] Elliott, M., ‘United Kingdom: Parliamentary Sovereignty under Pressure’ 2 Int’l J. Const. L. 545 (2004)

[15] Lord Kerr ‘The modest underworker of Strasbourg?’ Clifford Chance Lecture, 25 January 2012

[16] SSHD v AF and others [2009] UKHL 28, paragraph 98

[17] Lord Judge, ‘Constitutional Change: Unfinished Business’, Speech at UCL, 4 December 2013

[18] Ibid.

[19] R (Ullah) [2004] UKHL 26: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ Bingham LJ at paragraph 20

[20] Masterman, R., ‘The Mirror Crack’d’ UK Const. L. Blog (13th February 2013) (available at http://ukconstitutionallaw.org)

[21] Laws LJ ‘The Common Law and Europe’, Hamlyn Lectures 2013, 27 November 2013, paragraph 33; Lady Hale, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’, Human Rights Law Review (2012) 12 (1), at 77: ‘Argentoratum Locutum: iudicium non finitum’ (emphasis added)

[22] Lord Sumption ‘The Limits of Law’, 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013

[23] Sedley, S., ‘Judicial Politics’, London Review of Books, Vol.32, No.4 (23 February 2012), p.15

[24] See judgment given by Law LJ in SS (Nigeria) v SSHD [2013] EWCA Civ 550, maintaining the same argument that very great weight should be accorded to the policy of the SSHD in his lead judgment in the court of appeal (SSHD v Huang [2005] EWCA Civ 105) which was overturned by the House of Lords in the same case ([2007] UKHL 11); and Laws LJ again in International Transport Roth GmbH & Ors v SSHD [2002] EWCA Civ 158: ‘Not very long ago, the British system was one of Parliamentary supremacy pure and simple‘

[25] Laws LJ, ‘The Common Law and Europe’, Hamlyn Lectures, p.11-12

[26] Lord Kerr ‘The modest underworker of Strasbourg?’ Clifford Chance Lecture1, 25 January 2012: ‘In 2010 some 1,200 applications from the UK were considered by the Strasbourg Court. Of these 1,177 were declared inadmissible or struck out. Only 23–less than 3 per cent of the total–resulted in a judgment of the Court, several of which ended in findings of no violation, in other words, confirming the national court’s determination.”

[27] Lord Sumption ‘The Limits of Law’, p.9

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