24.03.2014 – In the second of this two part series (you can find the first part here) we look at the impact of the prisoner voting case on human rights in the UK and the challenges this presents for lawyers working in the field. Following on from our previous post, here we consider the potential consequences of disquiet amongst the senior judiciary in the UK and the ramifications of non-implementation of decisions of the European Court of Human Rights at Strasbourg.
There is a fear amongst supporters of the Convention system  that if the UK does not implement or abide by the decisions of the ECtHR other states will point to these examples of non-implementation and use this as a basis for not respecting the rights of their own citizens. There are concerns that other states would complain of double standards which could result in a wider refusal to implement Strasbourg judgments across the Council of Europe.  For some, the prevention of contagion is the principle reason for continuing to play a role in the Convention system. 
There is some evidence that this ‘contagion’ is already taking place in the decision of Volkov v Ukraine  , where, in spite of the Strasbourg court’s legally binding stipulation that a judge should be reinstated ‘at the earliest possible date’, this requirement was not complied with. The Ukrainian government (as it was) was clearly emboldened in its refusal to comply with this requirement by the hostility to the Convention in the UK, noting that Ukraine is not the only country having difficulty implementing European Court judgments.  What is clear from the (previous) Ukrainian government’s stance in Volkov is that contagion from the UK to newer Council of Europe states in refusing to implement unwelcome human rights judgments may no longer be merely a risk, but reality. 
With each decision like Hirst and Chester, the calls for withdrawal from the Council of Europe grow stronger. The idea of a UK without Convention rights is not just an academic counter-factual but something that is possible in the real world.  There is a widespread public perception, undoubtedly stoked by cases such as Hirst, that the Human Rights Act is too widely used to create rights which it was never meant to protect  , and this has led to a Conservative manifesto promise to scrap the HRA. 
According to the government commission set up to consider a British bill of rights, or equivalent, the present position is considered to be unstable with the voices raised so strident and the public debate so polarised that ‘there is a strong argument for a fresh beginning’.  It is difficult to be as sanguine about the impact of withdrawal from the Council of Europe and Convention as Lady Hale, concentrating as she does on the domestic legal ramifications of withdrawal.  It would clearly affect the international standing of the UK and restrict any attempts by this country to criticise others regarding human rights records abroad. This concern is similar to that of the contagion argument, above.
Whilst withdrawal from the Convention of Europe may not mean the end of human rights in the UK , it will soon become clear that many of the rights enshrined in the ECHR are also, in effect, implemented by European law via the UK’s membership of the Union and the supremacy of European Union Law in member states.  The force of the Charter of Fundamental Rights of the European Union  was felt recently in the UK in an employment dispute.  Upon wider realisation that the Charter actually provides similar (or greater rights ) for individuals against decisions of the state,  this will only strengthen the case for withdrawal from the European Union, a course of action which is being actively pursued by at least part of the current administration. Whilst this may be celebrated by the isolationist lobby, for the internationalists amongst us it must be a very real concern.
There will always be voices in the senior judiciary who agitate for greater deference to the views of the legislature. However, the danger arises when a critical mass begin to dissent in such a way as to give political cover to the UK government to either refuse to comply with Strasbourg sanctions, or withdraw completely. Where judges considered more ‘liberal’ begin expressing themselves in such ways, it is important for those that care about human rights to pause and consider the consequences of their actions. It seems that there are two solutions.
Firstly, do not take bad cases. The purpose of the Convention is to protect the rights of minorities. Lord Sumption may have a point where he questions whether prisoners in this context can really be considered as such.  In areas of the law where there is no consensus amongst states on the rights in question, lawyers should be very slow to argue that fundamental human rights are in issue. Indeed, there is no international consensus on the rights of prisoners to vote.  In the same way that Dicey premised the absolute sovereignty of Parliament on an implicit understanding that there would be political ramifications to any unpopular or unacceptable steps taken by it (to the extent that, whilst absolutely sovereign, due to the political consequences, those steps would not be taken ), lawyers should consider always the potential political fall-out of running a particular case. These decisions are not easy, but perhaps the starting point should be to consider the right in question and whether the enforcement of that right is worth the potential consequences as set out above and in the first part of this post.
Secondly, revisiting the principle set out in Ullah confirming the duty of national courts ‘to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. The interpretation of s.2 Human Rights Act 1998 (“HRA”)  has, since Lord Bingham’s dicta, meant that the national courts have treated themselves as bound to follow Strasbourg jurisprudence.  However, as alluded to in Chester and recently by Moses LJ, this is not actually what s.2 HRA 1998 requires and there is certainly scope for the Supreme Court to take a different view if it so wished.
It is suggested in some quarters that we would not have given human rights such a bad name if we have not had such regard to Strasbourg jurisprudence, but rather to British values, mores and legal principles. As Laws LJ says, it is ‘a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence’.  Currently, it is almost certainly not. 
As a result, there is a significant danger that the gradual change in the constitutional grundnorm  over the post-war decades, accelerated by the reforms of the Blair years and apparently reaching its zenith in Jackson, where the senior judiciary offered such a bullish defence of the Rule of Law, could reverse. This is why cases such as Chester are so dangerous: whilst the consequences as set out above certainly have the potential to delay and frustrate the advance of human rights in the UK, the arguably greater threat is a permanent change in the grundnorm and reversion by the judiciary, away from an increasing respect for individual rights according to recognised and universally applied international legal standards, to the deference and legislative obsequy of the past.
 See for example ‘Observations for the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill’ letter from Nils Muižnieks, Council of Europe Commissioner for Human Rights to Nick Gibb MP, Chair, Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, 10 October 2013: ‘I believe continued non-compliance would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system, which is at the core of the Council of Europe’.
 ‘The UK and the European Court of Human Rights’, Equality and Human Rights Commission Research report 83, by Alice Donald, Jane Gordon and Philip Leach (Human Rights and Social Justice Research Institute, London Metropolitan University, 2012) at http://www.equalityhumanrights.com/uploaded_files/research/83._european_court_of_human_rights.pdf accessed on 7 December 2013
 David Anderson QC, ‘A UK without Convention Rights – Freedom or Danger?’ Bingham Centre for the Rule of Law, Human Rights Law Association, slides from seminar on 16 May 2013
 Oleksandr Volkov v. Ukraine (Application no. 21722/11) (27 May 2013)
 Phillip Leach, 21 November 2013, http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/: discussing the Ukrainian refusal to implement the decision, a spokesman commented that ‘Great Britain would very much like to leave the European Convention on Human Rights’.
 Phillip Leach, 21 November 2013, http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/
 David Anderson QC, ‘A UK without Convention Rights – Freedom or Danger?’ Bingham Centre for the Rule of Law, Human Rights Law Association, slides from seminar on 16 May 2013 http://adam1cor.files.wordpress.com/2013/05/uk-without-echr-rights.pdf
You Gov poll, March 2011, http://cdn.yougov.com/today_uk_import/yg-archives-pol-yougovitv-humanrights-240311.pdf : 75% of respondents agreed with this statement
 Theresa May, Conversative Party Conference Speech 2013, available at http://www.conservativepartyconference.org.uk/Speeches/2013_Theresa_May.aspx
 A UK Bill of Rights? The Choice Before Us, Report of the Commission on Human Rights, 18 December 2012, para 84
 Lady Hale, ‘What’s the point of human rights?’, Warwick Law Lecture 2013, 28 November 2013
 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62
 Available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf
 Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity)  UKEAT 0401_12_0410 4 October 2013; and see http://ukhumanrightsblog.com/2013/10/15/eu-employment-rights-law-trumps-diplomatic-immunity-act-what-next/comment-page-1/ and http://www.theguardian.com/law/2013/oct/09/human-rights-eu-law-powerful for further comment
 http://ukhumanrightsblog.com/2013/11/08/watch-that-charter/: ‘If Mostyn J is correct – and there is no reason to believe that he isn’t – all talk of revoking the ECHR and producing a domestic bill of rights is rendered nugatory. The Convention will continue to rule from the grave…’
 See the surprise expressed by Mostyn J in AB, R (on the application of) v Secretary of State for the Home Department  EWHC 3453 (Admin)
 Chester, R (on the application of) v Secretary of State for Justice (Rev 1)  UKSC 63 , paragraph 115
 Ibid., paragraph 114
 R (Simms) v Secretary of State for the Home Department  2 AC 115, see judgment of Lord Hoffman: ‘The constraints upon [the] exercise [of Parliamentary sovereignty] are ultimately political, not legal’
 S.2(1) Human Rights Act 1998: ‘ E+W+S+N.I.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 (b)opinion of the Commission given in a report adopted under Article 31 of the Convention (c)decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d)decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.’
 See, inter alia, op cit., n.28
 Lady Hale, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’, Human Rights Law Review (2012) 12 (1), at 72
 The Children’s Rights Alliance for England, R (on the application of) v The Secretary of State for Justice  EWCA Civ 34 at 64
 See supra n.8
 See Kelsen, H., Pure Theory of Law, Second Edition (2009)