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On 4 June, Lady Hale delivered a lively and penetrating speech to the Salford Human Rights Conference regarding the development of human rights law in the UK since the Human Rights Act 1998 came into effect. The speech has recently become available on the Supreme Court website.
In the speech, Lady Hale identified what she and the judicial assistants and the Supreme Court consider the high and low points in the development of the law and identified four emerging themes of particular importance.
The first of these was the role of the courts in determining the application of human rights, that is the extent to which the courts should show deference to other public authorities. Lady Hale noted in the early days of the Act the development of judicial scrutiny from “heightened scrutiny Wednesbury” in Mahmood to proportionality in Daly, but referred to Lord Steyn’s observation that this fell short of a merits review.
She also noted that where the original decision-maker was itself a judicial body, such as an immigration tribunal, it must be for the courts to decide whether the decisions in question are compatible with Convention rights.
The second theme was the extent to which the domestic courts should get ahead of Strasbourg noting Bingham in Ullah stated that “the duty of national courts is to keep pace with Strasbourg . . . no more, but certainly no less” whereas Lord Bown in Al-Skeini preferred “no less, but certainly no more”. She noted a number of problems with domestic law remaining in lockstep with that of Strasbourg including that this was not the Parliamentary intention.
But she also identified three examples of where the UK courts had in fact leapt ahead (all high points according to her Judicial Assistants): Limbuela in respect of the destitution of asylum seekers being contrary to Article 3; Re G in respect of the margin of appreciation to be afforded in respect of discrimination between married and unmarried couples (the arrogation by the courts of the margin of appreciation to themselves rather than to Parliament in this case is a particularly interesting issue); and EM (Lebanon) regarding expulsion of individuals (a mother and daughter) to a country where they would a breach of the Article 8 rights.
She thought that the pattern in these cases was that where the domestic court thought that the claimant would win in Strasbourg, although the issue had not been aired there, they would (perhaps not surprisingly) leap ahead. If not, they would probably not do so unless the case fell within the margin of appreciation for the member state, in which case they would feel free to act.
The third theme was question of interpreting legislation compatibly with the Convention, noting the contortions of language the courts had been prepared to tolerate for example in Ghaidan where the House of Lords thought “husband and wife” did not have to be of opposite sexes and in MB and AF, interpreting the law concerning control orders obviously precisely the opposite of that intended by Parliament.
However, she lamented the decision of the House of Lords in Re S concerning care plans. This reversed a decision of the Court of Appeal of which she was part, which required introducing rather than interpreting wording into the statute, to make it Convention compatible. The House of Lords had held that this was impermissible.
She summarised ironically that where the courts find legislation is compatible with the Convention, they “cannot fill the gaping hole” left by a statute but could “find a different meaning” even when the original wording was “clear and precise”.
The fourth theme concerned the extent of functions of a public nature under the Act noting the decision of the House of Lords in YL concerning private care homes and considered this approach (although remedied by statute in the particular instance) to be a problem with “more and more public functions being outsourced to the private and voluntary sectors” and asks what the specific criteria are for determining what are “functions of a public nature” (she wonders, one assumes disapprovingly, whether the key criterion is coercion).
This is an important area. In this regard, it would be interesting to know Lady Hale’s views as to why is some areas, such as privacy and the media, the courts have been quite prepared to apply the Convention horizontally (so whether the defendant is a public authority ceases to matter) whereas in the social field, horizontal effect has hardly been raised as a possibility.
In her conclusion, Lady Hale regrets that the Act “has given rise to so many difficult constitutional issues”, although that was perhaps inevitable. It is pretty clear that she would like the courts to take a bolder line, being prepared where necessary to intervene more and get ahead of the Strasbourg line and simply introduce words into statutes to provide compatibility with the Convention. These would certainly be steps in a radical direction.
3 comments
jailhouselawyer said:
26/06/2010 at 03:43
First we had Lord Phillips erring in law with his recent speech, and now Lady Hale doing likewise with her speech! What ever happened to the legal maxim: “ignorance of the law is no excuse”?
And, why did they both shy away from Hirst v UK(No2) and the HRA 1998? Could it possibly have something to do with the Politics of the Judiciary?
I have a friend who is a judge and he advised me not to have faith in judges because they cannot be trusted. I take it he was referring to UK, or at least British or English judges. I do, however, place my faith and trust in the judges at the European Court of Human Rights.
The sense of frustration developing prison law, whilst in prison, and being told by counsel that the Convention was not part of English law! And that a judge only had to take it into account as neither it nor the Court’s decisions were binding. I believe that this view was wrong way back then. In any event, it cannot hold now since incorporation of most of the Convention with the HRA 1998.
I would strongly advise, urge, if you like, that the Supreme Court allows my case to leapfrog for a decision at home to at least save face from any further embarrassment as a result of execution of the judgment by the Committee of Ministers of the Council of Europe.
The coalition has been given until September to jump, only the government does not know how high. It has so far refused to answer media questions what occured on 2 June, when the UK was the subject of scrutiny by the CoM. Saying only that the media would be informed when the government knew what it was doing. It does not inspire confidence in me when the government admits it does not know what it is doing!
In both of the Houses when the question was raised when does the government intend to fully comply with my case, the reply was the same. That is, that the government was looking at it afresh and is looking for the best way forward. The problem is, that the government is the obstacle to the best way forward! It is wasting valuable time taking to people who do not have a clue!
Lord McNally erred in law when he accused the ECtHR of moving the goalposts set in Hirst No2 in Frodl v Austria. However, in Frodl all the Court did was reaffirm the Hirst test and provide the definitive interpretation for the UK because Lord Falconer erred in law by providing his own misleading interpretation. The Prison Reform Trust has recently spoken with the Parliamentary Under Secretary of State for Justice, Crispin Blunt MP, and my case was part of the discussion.
Given that the two horses, Pearson and Martinez, were backed by the PRT, and fell at the first fence, only my horse romped home to win and it was backed by the Association of Prisoners, one wonders why the Minister is speaking to the PRT, and not me, when they seek my advice on the case? As I understand it, the legal responsibility for ensuring human rights rests with the Secretary of State for Justice, Ken Clarke. And, he has appointed Lord McNally with the responsibility for human rights and civil liberties. It maybe unfamiliar to English law, but I asked the question of the Council of Europe, and they confirmed that I have ownership of Hirst v UK(No2). Talk to the engine driver and not the oil rag!
On 1 June the new powers came into force for the Court and CoE and CoM, with the ratification of Protocol 14 under the Lisbon Treaty. It now means that I can invoke Rule ‘infringement proceeding’ against the UK. Under the Lisbon Treaty, the European Union acceded to the Convention. It brought the two separate institutions closer together. Member States, under both institutions, must abide by the Convention and ECtHR decisions.
Neither the PRT nor Lord Ramsbotham were aware of the Interlaken process. The United Nations dreamt this up to apply sanctions against rogue or pariah states, to force them to toe the line. The CoE adopted the Interlaken process. In February, at the Interlaken Conference, the 47 Member States of the CoE had to reaffirm their commitments to abide by the Convention and Court decisions. At the Conference it was made clear that the Court could no longer survive unless reforms were adopted, to ease the Court’s backlog of cases and prevent States from failing to comply with judgments which only led to repeat applications. It was decided that the CoM must enforce compliance from Member States, and use its full powers against Member States which either ignored or delayed implementing judgments. For example, Hirst was just one man with one case. But, because the last administration failed to heed the warnings from the CoM, to give convicted prisoners the vote before the General Election, now up to 75,000 thousand similar cases are destined for Europe. This is called a systemic failure.
What this means is that the Executive, Judiciary and Parliament have failed to do their jobs by providing checks and balances under a proper separation of powers. It appears to have been forgotten in the UK, that the three arms of the state have been taken prisoner by Hirst No2. The UK lost the legal battle but failed to display the White Flag. It appears as though Downing Street is instead flying the flag of St George for the World Cup! It’s a question of priorities, and the UK has got them wrong.
It would appear as though the coalition is under the impression that because the old administration dragged its heels for 5 years, and apparently got away with it, it is only reasonable that in September the CoM will give the coalition more time. Wrong! Besides the new powers, already mentioned, when a Member State has failed to fully comply with a judgment for 5 years the CoM applies more pressure. In effect, Labour left a ticking timebomb in the MoJ! I said apparently, for good reason, because already legal actions have begun against Tony Blair, Charles Falconer, Jack Straw, and David Miliband alleging misfeasance in public office and negligence. Nobody is above the law! The law is meant to both punish and protect. When it comes to prisoners, the UK appears to forget the protect element and only punishes! Therefore, it is only right that the double edged sword is used against the State to teach it a lesson it will not forget.
For example, at the Interlaken Conference it was proposed and adopted that greater use be made of the subsidiarity principle. The CoE demands that Member States ensure compliance of both the Convention Articles and Court decisions. What we are talking about here is a higher law than English law. There will be need for big constitutional changes. As already stated, the separation of powers needs to be a true separation of powers. Supremacy of Parliament has to bow down to the Supremacy of the Parliamentary Assembly of the Council of Europe (PACE). Face it, the British Empire no longer exists and has not done so for a number of years. The Supreme Court is a joke if it is fettered by Parliament, it must have the jurisdiction to strike down offending primary legislation. We have entered into a new era. European law prevails in Europe. And, presently, the UK is part of Europe.
Under the Treaty of London 1949 (The Statute of the Council of Europe), the CoE has the power to suspend or expell a rogue or pariah State. Because of the Lisbon Treaty, the UK will now be suspended or expelled from the EU. Labour kicked the ball into the long grass, and lost sight of it. Europe did not! Labour believed that the CoE was a toothless watchdog. Come September, unless the UK wakes up and smells the coffee, the British Bulldog will be sent packing with its tail between its legs! Anyone familiar with the game of British Bulldog? This new game has a European twist, the lone State instead of grabbing other States running towards it, and if caught becoming a British Bulldog, has 46 other Member States tackling the UK. Given these odds, I don’t fancy the UK’s chances. This is without Europe’s anti-Tory feelings. Forget the tough talking politicians saying that they are going to Europe to defend the UK’s interests against the foreigners. Europe has a bone to pick with the UK.
The Council of Europe’s 3 main objectives are Democracy, Rule of Law and Human Rights. Hirst No2 invoked Article 3 of the First Protocol which guarantees democracy, rule of law and human rights. The Hirst test is all about achieving those three objectives, and the UK failed to pass the test. It is not the playing field of Eton over there, it is not our rules that govern the game but theirs, and the referee is also in Europe and not the UK. It’s a team game, if a player chooses not to be part of the team he gets sent off. The UK is already sidelined because it chose to say one thing in Europe, and quite another thing when back at home.
I am no longer English, nor British because I am ashamed of the UK’s atrocious human rights record of guilty findings in the ECtHR. Instead, I am proud to be European. For the UK it is now sink or swim. Isolated, there is always the option of becoming another state of the USA.
Most European States have written constitutions, I would advise that it is now time that the UK considered this issue very seriously. There has been much said and written about a British Bill of Rights. Like Ken Clarke has previously said, the British bit is xenophobic nonsense. The UK is multi-cultural, a Bill of Rights will suffice. It’s articles cannot legally be deviated from, by either the Executive, Judiciary or Parliament. Enough of this nonsense about a bill of rights and responsibilities, the idea behind this being that unless citizens acted responsibly they would lose their rights. What the UK fails to appreciate, is that the State and its employees must act responsibily towards its citizens. No longer should there be subjects in the UK, just the State and citizens.
As the HRA stands, it is contended that it is incompatible with the Convention. If Articles 1 and 13 of the Convention are incorporated, and certain other amendments stating its status as Higher Law and the rights invioable, taking into account the separation of powers it is a good blueprint. If we are truthful, most of it is not European at all but English and British and we can thank Churchill for his foresight. The Council of Europe was set up to stop Totalitarian states ever again getting a grip on Europe.
Hirst No2 exposed the UK as a totalitarian state in relations to its prisons. Prisoners as citizens of Europe have the human right to live in a democracy. It is not acceptable to the Council of Europe for prisoners to be dehumanised for political purpose, as has been allowed to happen in the UK. Article 1 of the Convention clearly states everybody is entitled to the human rights, and this includes the vulnerable group with the social status of prisoners. Because prisoners have no vote they have no voice in Parliament and they are susceptible to abuse by knee-jerking politicians who read the Sun and Daily Mail headlines and editorials.
Freedom of the press is a wonderful thing, however, when the media is State controlled or controlled by a minority of powerful tycoons then it is no longer free. Democracy suffers when, for example, the Sun dictates government policy and hasty, ill-thought out legislation is passed by Parliament. For example, Labour’s last statute before the General Election, the Constitutional Reform and Governance Act was passed by Parliament without proper debate. As a result, those in Scotland, Wales and Northern Ireland now have human rights denied to those in England! This anomaly cannot be allowed to stand in a true democracy.
In conclusion, doesn’t it strike you as odd that whilst the government states it is considering the best way forward, for implementing the Court’s judgment in Hirst No2, that the Venice Commission and Electoral Commission have stated that it is simple? All it requires is for s.3 of the RPA 1983 to be repealled. This has to be a discrete issue, and the Council of Europe will not accept any attempt by the coalition to buy more time by stating that it is intended to comply by instituting other reforms. Nick Clegg has stated that the Hirst case is a legal minefield; it isn’t it’s very simple. However, any attempt to deviate from the judgment does means straying into a legal minefield. All the previous administration’s inordinate delay has achieved is to saddle the taxpayers with a £60m bill in damages for prisoners for the loss of the vote in last year’s European election, and £75m for May’s General Election. Labour’s legacy, apart from the Iraq war, is to leave the taxpayers £135m poorer in this economic downturn. If it is any consolation, they will be richer in experience!