Oral evidence: Human Rights Act Reform, HC 1033
Wednesday 26 January 2022
Members present: Joanna Cherry MP (in the Chair); Lord Brabazon of Tara; Lord Dubs; Lord Henley; Baroness Ludford; Baroness Massey of Darwen; Angela Richardson MP; Dean Russell MP; David Simmonds MP; Lord Singh.
Questions 1 - 11
I: Lord Mance, Former Justice, The Supreme Court of the United Kingdom; Professor Alison Young, Sir David Williams Professor of Public Law, University of Cambridge; Professor Adam Tomkins, John Millar Chair of Public Law, Glasgow University; Dr Hélène Tyrrell, Lecturer, Newcastle University.
Oral evidence: Human Rights Act Reform
Lord Mance, Alison Young, Adam Tomkins and Hélène Tyrrell
Q1 Chair: Welcome to this meeting of the Joint Committee on Human Rights. We are a cross-party committee of peers and Members of Parliament. Our Chair, Harriet Harman MP, is currently on bereavement leave after the sad death of her husband, Jack Dromey, the former MP for Birmingham Erdington. I am Joanna Cherry, and I will chair the committee in her place this afternoon. I would like to extend my sincerest sympathy to Harriet and her family.
In 2021, this committee published our report to respond to the independent Human Rights Act review, chaired by Sir Peter Gross. At that time, we said that the evidence we had heard had led us to conclude that there was no case for changing the Human Rights Act. Following the publication of the independent Human Rights Act review report in December, the Government published a consultation paper in December 2021 called Human Rights Act Reform: A Modern Bill of Rights, and the consultation is running for three months until 8 March 2022.
The Joint Committee on Human Rights intends to respond to the Government’s consultation and will take evidence to enable us to do so. This is our first public evidence session to help to inform that response, and our focus will be on the proposed changes that will affect the relationship between the United Kingdom’s domestic courts and the European Court of Human Rights in Strasbourg, and relationship between the United Kingdom’s domestic courts and Parliament and the Executive—sometimes referred to as the separation of powers.
We are very grateful and fortunate to have a number of distinguished witnesses giving evidence to us this afternoon. We will hear from three academics who specialise in constitutional law and the Human Rights Act in particular, and a former justice of the Supreme Court, who will be able to tell us about how the Human Rights Act is applied in practice.
The first witness is Lord Mance, the former Deputy President of the Supreme Court. He was appointed to the House of Lords in 2005, where he spent four years as a Law Lord before becoming a justice of the Supreme Court on its formation in 2009. He was Deputy President there from 2017 to 2018. Welcome, Lord Mance. We are very grateful to have you here this afternoon.
Next, we have Professor Alison Young, who is the Sir David Williams professor of public law at the University of Cambridge and a fellow of Robinson College. Welcome Professor Young. We are very happy to have you here this afternoon.
Then we have Dr Hélène Tyrrell, who is a lecturer in law at Newcastle University. Hélène’s research focuses on courts and judges, human rights and administrative law. We thank her for being here this afternoon.
Last but not least we have Professor Adam Tomkins, who joined Glasgow Law School as the John Millar professor of public law in 2003. Adam specialises in constitutional law and was previously a Member of the Scottish Parliament for the Glasgow region in 2016, where he sat until 2021 before returning full time to his academic career. Thank you, Adam. We are delighted to have you with us this afternoon.
We have quite a few questions to be going on with. Before handing over to one of my colleagues, I will ask the first question, which I will direct to you, first, Professor Tomkins. It is just a general overview question. The Government say that they plan to reform the Human Rights Act to provide what they have called a “clearer demarcation of the separation of powers between the courts and Parliament”.
Is that necessary? Do you think there is presently something wrong with the separation of powers between courts and Parliament? The Government seem to think that there is. Do you agree? What impact do you think the changes the Government are consulting on could have on the separation of powers and our constitution?
Professor Adam Tomkins: Thank you very much, Chair, for inviting me to give evidence this afternoon. I think the question goes directly to the heart of the matter. My answer is that it might not be strictly necessary, but it is certainly desirable. The separation of powers is a long-standing principle of constitutional practice in a number of countries around the world, and it is becoming more important in the United Kingdom.
The so-called Miller/Cherry case that ended up in the Supreme Court was decided by the Supreme Court—I think correctly, by the way—not least on the basis of the separation of powers. That case has nothing to do with the Human Rights Act, of course, but it is a very powerful illustration of the growing importance of the separation of powers in the United Kingdom’s constitutional orders. I would therefore be inclined to support any steps taken by any Government in these islands to help to clarify what that principle might mean and how far it might go.
In your introductory remarks, Chair, you said that you wanted the focus of today’s evidence session to be on two critical relationships. The first is the relationship between the UK domestic courts and Strasbourg. The second is the relationship between the UK courts and the institutions of parliamentary government. That is precisely the relationship that is, might be or should be governed by ideas and practices of the separation of powers.
There is no doubt that the Human Rights Act has, as Lord Sumption put it in the Carlile case in 2014 for example, affected or redistributed powers between the courts on the one hand and parliamentary government on the other. The courts have grown in power and stature under the Human Rights Act at the expense of parliamentary government. There is no doubt about that. At the same time, there is also no doubt that the institutional competence of the courts has not changed. There are still things that courts know that they are not best placed to resolve. Again, the Carlile case in which Lord Sumption uttered those remarks is a very good illustration of that, as is the Nicklinson case on assisted dying, as is the Animal Defenders International case on free speech and political communication. We can talk about these cases in more detail this afternoon, if that would be helpful to members of the committee.
They are all illustrations of the same basic point, which is that the separation of powers has changed because of the Human Rights Act but the extent of those changes is not always clear, and it would be helpful to bring some clarity to that. If that is something that reform of our human rights law can deliver in the Government’s proposals when developed, I would welcome it for those reasons.
Chair: Thank you very much indeed. Professor Young.
Professor Alison Young: Thank you very much Chair, and thank you for inviting me to give evidence today.
To the extent that I think it is desirable to ensure that we have a good separation of powers, then of course I am in agreement with Professor Tomkins that this is a good thing and that it is good to ensure that we have a good balance between different institutions of the constitution.
If you are asking me specifically whether there is a need to provide a clearer demarcation, because in some way, shape or form this demarcation is either too unclear or is in some way tipped too far in favour of the cause, I would not agree with that conclusion. As Professor Tomkins has pointed out in his evidence, the courts are aware of their proper constitutional functions and take care to ensure that they do not intrude too greatly on political choices when they are thinking about their powers under Section 3—when they are interpreting legislation—and when they are thinking about balancing rights when performing proportionality exercises. We see this in particular when we think about the balance of social and economic rights. There is much greater need for Government and Parliament to be able to take policy choices in those areas.
If I had particular concerns here, it is that I am not sure that these reforms as proposed—I am not 100% sure where they are going from the document—will necessarily give us that particular clarity. That is because some suggestions in the reform proposals in the document setting out the questionnaire seem to be based on reducing the powers of the courts, thinking carefully about when we use Section 3, and perhaps reining in on the interpretive obligation. Then, with regard to Section 2 changes, there are suggestions that we should look at common law rights and domestic law before looking at the European Court of Human Rights.
Whenever you are bringing in such changes, there will be a lack of clarity. As we have new law, it has to settle. Then there will be case law that determines what that barrier is, which might create further uncertainty. In particular, if you are suggesting on the one hand that courts are meant to be developing the common law, we do not know what the common law rights are in the same way that we know a clear list of convention rights. That could in some way give more power to the court, in contrast with when we are looking at the balance of Section 3 and Section 4, which gives less power to the court. That might send a further confusing message rather than clarifying this distinction, which I agree is a very important one to maintain.
Chair: Thank you, that is a very interesting point. Dr Tyrrell, can I come to you next?
Dr Hélène Tyrrell: Yes, thank you, and thank you very much for inviting me to give evidence in this session. I will keep my answer fairly brief, because I know there is a lot to go through.
In principle, it is impossible to disagree that it is desirable to have a clear separation of powers. I do not think that the changes to be made to the Human Rights Act will improve overly on the separation of powers situation. The Act was carefully and very cleverly designed for the peculiarities of the UK constitution, including the separation of powers, and the provisions of the Act work together to provide as much.
The government proposals include some quite sweeping changes—I am sure we will discuss them—which I think would start to unravel the overall structure of that framework, which protects rights according to our constitutional traditions. One thing that I think will need to be considered very carefully is the consequence of reducing powers in the courts, for example. If we reduce the powers of the courts, especially where they are holding the Government to account, we have to think about where that power then shifts. Does it increase the power of a different institutional body? Those things need to be thought very carefully about.
Chair: Thank you. Lord Mance, may I turn to you now on this question?
Lord Mance: Thank you for inviting me. I think the starting point should be that the Human Rights Act is itself the product of parliamentary sovereignty. Parliament decided the line that was taken in the Human Rights Act. Of course, it is open to Parliament to change it, insofar as we have, perhaps unusually in the world, a concept of parliamentary sovereignty as overriding all other potentially controversial rights, whether they be regarded as quasi constitutional or not. That is catered for in the Act by the circumstances in which a declaration of incompatibility has to be made.
Short of that nuclear option, Parliament willed a situation in which courts would, under Section 2, broadly align themselves with Strasbourg. Under Section 3 it willed, as was pointed out back in re A and Ghaidan v Godin-Mendoza, the situation where an unusual rule of interpretive construction was introduced is open to Parliament to remove, as I think one of the proposals indicates. How far that rule has been utilised is, of course, not easy to assess, but, in my belief, it is relatively rarely. In other words, normally conventional rules of interpretation fortified by the principle in re Simms have sufficed.
From my experience, I would also agree with what Professor Tomkins said about institutional caution. I believe it is right—I speak as a former judge here, but obviously I am not representative—that we have been institutionally cautious. To the cases he cited one might add the case of Rotherham, about the allocation of EU regional funds, which was challenged on grounds of inequality between different regions. The challenge failed. I think that institutionally the present system works.
Do we need more definition, therefore? I would think that the present situation was reasonably satisfactory. If it was felt that the interpretive obligation, which was a deliberate choice if you look at the White Paper that is referred to in re A, was a deliberate choice to avoid situations in which legislation was found incompatible by declaration and claimants had to go off for a remedy to Strasbourg, unless they could get one retrospectively through Parliament, it would be open to the Government to reverse, as I said. No doubt the courts would live with the revised situation, but of course the consequence would be the loss of one of the aims of the original Act, which was to avoid people having to go off to Strasbourg. That seems to me to be a sort of tension or triangulation here.
Chair: We will definitely return to that issue this afternoon.
Q2 Lord Singh: The Government, in their consultation, repeatedly assert that there is a lack of public confidence in the interpretation and operation of the Human Rights Act. Do you agree, and, if so, why do you think that has arisen? How do you think public confidence in the Human Rights Act could be improved?
Lord Mance: I am not a MORI poll, so I cannot speak for the population at large. Public confidence should not always be the test of what is the right legislation. There are some situations—in particular, when you are talking about rights that are in many ways more important for people one dislikes, for minorities—where public confidence may not be the litmus test.
That said, obviously there are comments publicly by politicians and by others objecting to various decisions. I am not persuaded that there is a general lack of confidence in the human rights reflected in the Act. I would certainly encourage more educational outreach, which you have touched on in your question. In this country we are perhaps a little cavalier in calculating our understanding of our constitutional position and the value, the enormous benefits, this country has by having the rule of law rather than just a rule by law.
Lord Singh: Thank you. Professor Young.
Professor Alison Young: Thank you. I am not sure there is necessarily a lack of public confidence. I think there is, more generally, a lack of public awareness of what convention rights are. This can be part of the difficulty and part of the problem. If there is no awareness of what the rights are and how those rights are available for everybody, you might not have a full awareness of what the Human Rights Act is there for because you will only hear piecemeal accounts of cases that make interesting news stories or have very important consequences.
I would add only that what was particularly useful for the independent Human Rights Act review was that it carried out a series of road shows, and in some of those road shows members of the public raised specific human rights issues. I do not think that necessarily showed that there was a lack of confidence in their ability to use the Act, but that this Act was known in a piecemeal fashion in some sense. That is the real difficulty.
Lord Singh: Thank you. Professor Adam Tomkins.
Professor Adam Tomkins: I slightly disagree with Lord Mance and Alison Young on this one. I do think there is a public confidence problem with regard to the Human Rights Act in particular and the role of the Supreme Court in general. I think that is caused by many things, one of which is confusion about what we were talking about in the first question, on the separation of powers.
I do not think the public at large are confident about knowing what we want judges to decide in questions of politics and government, and what we want to be left to elected politicians, accountable as they are to the parliaments in which they serve and sit. I do not think this is necessarily a general problem that manifests itself with equal force across the range of public policy, but it does crystallise. It comes to a head in certain rather well-known instances, perhaps the most famous of which is the ongoing, still unresolved, controversy that persists about the extent to which Ministers and their officials should be able to deport foreign criminals when those criminals are arguing that their deportation is a disproportionate interference in their family life under Article 8 of the convention.
The extent to which that is a question of public policy for Ministers accountable to government, and the extent to which that is a question of law for judges to determine, or for judges to determine in tribunals and on appeal in the courtroom, is a matter over which there is a lack of public confidence, and that has been caused by the Human Rights Act. It has been caused by the Human Rights Act because, as I said in my answer to Joanna Cherry’s question at the beginning of the session, the Human Rights Act has changed the distribution of powers in the British constitution between the courts on the one hand and parliamentary government on the other. I do not think that is a journey in respect of which the public have necessarily been brought along. That has generated a problem of public confidence in the way in which the Human rights Act has come to be used.
Proportionality, which is the key doctrine in our modern human rights law, is a sharper weapon in the hands of the judiciary than old doctrines of Wednesbury unreasonable, which will be familiar to anyone who has studied administrative law in the last 70 years. There is no doubt about that. I am not saying that the relative empowerment of the judiciary under the Human Rights Act is a bad thing. I am not taking sides in this answer on that dispute. I am just pointing out that, yes, things have changed under the Human Rights Act, and it would be idle to pretend that they have not.
Some of the things that have changed under the Human Rights Act have generated problems of public confidence, and one of the ambitions that the Ministry of Justice clearly has in its proposals—an ambition which I think it is right to have and which I would share—is to try to bring some clarity to this so that we can have fewer disputes in the future between parliamentary government on the one hand and the courts of law on the other about who exactly is responsible for what. I am in favour of taking steps to try to reach that parity so that we have fewer instances of certain well-known tabloid newspapers getting it very badly wrong on their front pages.
Lord Singh: Thank you so much. Dr Hélène Tyrrell, would you like to add something?
Dr Hélène Tyrrell: Yes, just briefly, because I want to pick up on something that Professor Tomkins just said. I do not disagree that there is confusion about the way the constitution works, the separation of powers, but I do disagree that the root of that confusion is the Human Rights Act itself.
There is a distinction to be made. One of the problems is the way that the Human Rights Act has been represented rather than the way it has in fact worked in practice. Professor Tompkins touched on that in his reply. Some people have done great empirical work on media reporting of the Human Rights Act and the human rights claims and claimants, which broadly shows that the media vastly underplay the Government’s success rate in human rights cases, for example. That kind of misreporting understandably leads the audiences to those outlets to have a very distorted image of human rights. That is twinned with a general scepticism about the foreignness of the convention and the sense that the Human Rights Act is then a vessel for importing foreign norms. Much of the damage has been done through our relationship with foreign instruments.
By contrast, there is very little reporting about good-news stories under the Human Rights Act, and some people, like the British Institute of Human Rights, gave compelling evidence in their submissions to the independent Human Rights Act review panel, explaining the impacts that the Human Rights Act could be observed to have had—for example, the arrangements made for visiting relatives in care homes during the pandemic. These are important stories, but the fact is that very little is heard about the way the Human Rights Act secures people’s rights every day. As Professor Young said, we are more interested in the juicy stories about unpopular claims.
Q3 Lord Singh: Thank you, that is very helpful. Can I ask you about a linked topic? Do you agree with the recommendation made by the independent Human Rights Act review panel that the Government should implement a programme of public and civic education about human rights and the constitution in schools, higher education and adult learning? Also, is that the area where the education is needed, or should there be education for employers, civil servants and others where human rights are brought into question when it comes to procedures and timescales for speedy and efficient review?
Dr Hélène Tyrrell: I can be fairly brief on the first question, because I agree that this should be resolved, in some respects anyway, by a better educational push. There have been some brilliant initiatives by non-governmental actors to address public awareness of the Human Rights Act, but a lot more could be done, for example through the curriculum.
By way of anecdote, it always surprises me that even students who have chosen to study law at degree level arrive with a very limited understanding of what the Human Rights Act is or does. There are exceptions, of course, but on the whole there is a lot of confusion about the Human Rights Act, the relationship between the Human Rights Act and the European Court of Human Rights, and the way that affects the constitutional balance of powers. That runs very deep.
If one of the aims of giving effect to the convention rights in UK law is the development of a rights culture in the UK, that is usually premised on the fact that individuals are unable to argue about their rights in domestic courts. If that is to be effective, it relies on individuals having an understanding of their rights in the first place. If building a culture of human rights in this country remains a serious aim, whatever that might be based on, a significant effort is required to promote an understanding of the way the law protects people’s rights.
On the second point, I think that, by and large, education about the Human Rights Act was better in the implementation of the Human Rights Act for public bodies and public authorities than it was for the general public, but others may like to elaborate.
Lord Singh: Thank you so much. Professor Mance, would you like to comment?
Lord Mance: Dr Tyrrell picked up a point that I would thoroughly endorse. I think Professor Tompkins suggested that the public needed to be more confident about knowing what we want judges to decide. I think the Government—and one would hope that the press would follow—should be upfront about their aim. Is it the original one, which was to bring rights home so that one had fewer cases going to Strasbourg? That, on the face of it, was a remarkably successful aim. That is what has happened: virtually no cases succeed in Strasbourg now. In that case, what judges are doing when they implement human rights—particularly in the area he mentioned, deportation—is giving effect to international jurisprudence in the way the Government have intended. If, on the other hand, the Government wish to diverge, they are open to do so. One would find then that more people would have to go to Strasbourg.
The position that has arisen is one of deliberate choice on the part of government. It is one where I do not think the judges themselves have gone wrong. You can no doubt criticise the application in individual cases, but I do not think that in principle they have gone wrong. On the contrary, we have introduced a system by a deliberate choice that is a constitutional, or quasi-constitutional, system, bringing us closer, as I said earlier, to the rest of the world.
Lord Singh: Thank you so much. Professor Alison Young, would you like to comment?
Professor Alison Young: Only very briefly. I agree that there needs to be broader general education and perhaps the need to ensure that we keep educating. There was a very strong programme at the beginning of the implementation of the Human Rights Act to make sure that the judiciary and public authorities were trained, and that needs to continue.
The only other thing I would add is that if we really are to build public confidence in the Act and have the public thinking about what human rights are, particularly if we are thinking about reforming the Human Rights Act and changing how it works, it is very important that any reform we make involves full general public consultation. That way, the public can be both educated on what rights we have at the moment and involved in thinking about what further rights they may want to have and what changes they may want to see.
Lord Singh: Do you believe that it is possible for a member of the public to assert their human rights without engaging a very expensive barrister?
Professor Alison Young: This is part of the difficulty. What tends to happen—this has led to some criticisms of the Act—is that it is often very difficult to get to court because it might not be possible to obtain legal aid. That can often mean that public interest groups will then be sought to try to find people. Crowdfunding is also used now to help to try to get cases to court. This can be a difficult issue, so, yes, we also need to think very carefully about making sure that rights are accessible and that individuals are able to protect their rights when needed.
Lord Singh: Thank you very much. Professor Adam Tomkins, could you also address that question and the question about access to human rights?
Professor Adam Tomkins: The short answer to the question is yes. Other than that, it might put us law professors out of a job, because we will have less to teach our ignorant incoming first-years, who apparently know nothing about human rights or constitutional law, although I have to say that that is not my experience in Glasgow; Scottish law students seem to be remarkably well informed about the nature of Scottish politics and indeed law. But yes, who could possibly rationally and sensibly argue against civic education in human rights and civilities? That is a rather preposterous proposition, is it not?
The more important point is this: in a healthy constitutional democracy, there should be permanent, open, public debate, including between the courts and parliamentary government, about the allocation and distribution of power and responsibility in our constitutional affairs. It is no bad thing that we sometimes disagree about this. It is a good thing. It is not a bad thing that there are sometimes cases that politicians or Ministers want to react to, sometimes adversely.
That is not unhealthy. The way they do it has unfortunately sometimes been unhealthy; none of us would advocate newspaper front pages with pictures of judges being described as enemies of the people and so on. But it is not unhealthy to have a vibrant public debate in our democracy about the appropriate allocation and distribution of powers and responsibilities between the courts on the one hand and parliamentary government on the other. Some of these issues do not lend themselves to easy resolution.
Chair: Professor Tomkins, I am terribly sorry. I have to interrupt you in the middle of your very interesting answer, because I will have to suspend this committee meeting for votes in the Commons.
The committee suspended for a Division in the House of Commons.
Lord Singh: Professor Tomkins, you were just concluding. Would you like to continue?
Professor Adam Tomkins: No, thank you, Lord Singh. I have made the points I wanted to make. I am happy for the committee to move on, if that is what the Chair wants to do.
Lord Singh: Thank you all very much.
Q4 Lord Brabazon of Tara: My question is about Section 2 of the Human Rights Act and the interpretation of convention rights. Lord Mance, do you think that, as the Government say, there has been an overreliance on Strasbourg case law by domestic courts? Have domestic courts felt able to depart from Strasbourg jurisprudence where appropriate?
Lord Mance: I do not think there has been an overreliance, certainly compared with what the Government and Parliament intended when they put forward the Human Rights Act. The Act contains a deliberate choice by requiring us to take account of Strasbourg case law and by the reinforced interpretive provision in Section 3. The Act, as I said before, set out to bring rights home. “Take account of” gives a certain amount of flexibility, and I believe that the United Kingdom courts have been, and are increasingly, successful in influencing Strasbourg jurisprudence. Of course, the United Kingdom Government themselves played a part. The Brighton declaration and its follow-up in Denmark have been very successful measures in helping to persuade—
Lord Brabazon of Tara: You have gone mute.
Lord Mance: I said that not only the United Kingdom courts but the Government at the international level and other Governments of Europe have, through the Brighton and Copenhagen process, been very successful over the last 10 or 12 years in persuading the European Court of Human Rights. I do not say that it was unwilling to be persuaded of the virtues of subsidiarity and the margin of appreciation. There has been marked dialogue, in a true sense, with the European court at both the public and the private level. There are very fruitful meetings of judges at which there is very frank discussion as well as at the public level in judgments.
Some of the instances are very well known, such as in R v Horncastle in the United Kingdom courts, when we said that the Strasbourg jurisprudence relating to hearsay evidence really did not make sense, and it was modified by the Strasbourg court in al-Khawaja. Then, in a series of cases about the lawfulness of detention in cases where there had been a lack of prison courses or prison treatment to help prisoners in their detention, the Strasbourg court in James appeared to suggest that a lack of courses made the detention unlawful. We disagreed in Haney and Kaiyam, and the Strasbourg court picked it up in a later Kaiyam case, Kaiyam v the United Kingdom, and made it clear that that was not the case; that the lawfulness of detention was not affected, and that it was possibly a matter of compensation if there was a lack of courses.
There are other examples. There is the basis on which people are detained if they are suspected of being about to commit an offence. The Strasbourg court, in a case called Ostendorf, had advanced one theory as to how that fitted with the convention. We disagreed in Hicks, and the Strasbourg court expressly adopted what we had said in S, V and A v Denmark. It quoted it verbatim, endorsed it and changed its mind.
More recently, the Strasbourg court has taken a view in Allen about the right to compensation if you are acquitted, and we fundamentally disagreed in Hallam. There is a very fruitful interchange, which is one that is allowed by the wording. There has, of course, been some recent jurisprudence on how far the wording allows you to go further in Strasbourg, but judges have never done that very often. There is an argument about how far the margin of appreciation committed domestic courts to making up their own minds about the meaning of a convention article where the Strasbourg court had not been prepared to find an infringement, and that appears to have been settled in a recent case, Elan-Cane, on the 15th of last month, in favour of the proposition that it is not for domestic courts in that situation to make up their own mind.
I note with interest that that is not something which the independent Human Rights Act review thought should happen. Actually, it endorsed the opposite view in Chapter 3. Chapter 3 now does not seem to apply, and the Government’s own paper here, talking about a more autonomous approach to human rights, at one point might be thought to have suggested an opposite solution. But there you have a cautious view taken by the United Kingdom Supreme Court, which settles the law.
Lord Brabazon of Tara: Thank you very much Lord Mance. Would any of our other witnesses like to make any comments?
Dr Hélène Tyrrell: I am happy just to suggest that although the duty takes the Strasbourg’s jurisprudence into account, it is well established by now that it is not a duty to follow it. I think Lord Mance’s point is that the courts have settled that point now through quite a long line of cases. There are a number of examples, some of which were mentioned, of the UK court deciding a question about convention rights in a way that is contrary to the way the Strasbourg court would seem to have done or would be seen to be likely to do.
The very recent Elan-Cane case is very interesting, because, as Lord Mance said, to some extent it settles the question of how far the courts can go in the interpretation of the convention than the Strasbourg court has indicated might be necessary, because there exists what is called a margin of appreciation. If the courts are doing that by careful reference to the Strasbourg case law and being careful not to go beyond it, the duty in Section 2 can also act as a brake in some respects on an expansive interpretation of rights, which seems to be at the heart of the concerns that the government proposals put into writing.
Lord Brabazon of Tara: Thank you.
Q5 Baroness Ludford: The independent panel on the HRA concluded that Section 2, which, as we have just discussed, requires domestic courts to take account of Strasbourg case law, should be amended to make clear that courts should consider rights protected under domestic statute and case law before proceeding to consider convention rights. I think this is part of increasing public ownership sort of thinking. Do you support that recommendation, and what impact do you think it would have in practice?
Professor Alison Young: I think “cautious support” is probably the best way of putting it. In order to think about what the consequences will be, we have to think carefully about the different kinds of relationship there might be between domestic legislation, common law rights and existing convention rights.
In most of the case law that was cited in the Government’s response and the independent Human Rights Act review looking at this issue, you had a situation where both common law and domestic law was very much in line with convention rights. Using common law provisions first and then seeing that that was in line with convention rights was a good way of showing that this is a domestic protection but that it is also in line with the convention.
You can also have examples where the common law perhaps goes further than convention rights. Again, that could be a good way of showing that we are in line with the convention, but we have existing common law and domestic law provisions that go further. For example, domestic legislation recognising same-sex marriage rights is a good way of showing that legislation can build on convention rights as well as thinking about other areas.
My concern is what happens if the common law and domestic law does not go as far as convention rights. That will depend on a very careful understanding of what we mean by using domestic law first. Does that mean that we use domestic law but it does not go as far as convention rights, and now we can look at the convention and make sure that we are still bringing rights home and still in line with convention rights? How far will there perhaps be concerns of potential criticisms of the court if they then go to convention rights because they do not think that common law goes as far or that legislation goes as far as the convention rights in certain circumstances?
We would have to think very carefully about what this relationship is between. Is it just a question of looking first, and if it goes further and protects rights, great, but, if not, let us see whether we need to rely on the convention? Or will there be other elements of different weight being given to the common law and legislation before we look at convention rights? That would be why I would perhaps be partially concerned, because I think we need to flesh out what the inter relationship should be, as well as the potential order of looking at domestic and convention rights.
Baroness Ludford: Many thanks.
Professor Adam Tomkins: It is a very interesting question. The Human Rights Act has been enforced for more than 20 years, since October 2000. I am in favour of the proposition that, by now, in our development of a sort of self-consciousness—if I can put it like that—about the articulation and enforcement of fundamental rights and our constitutional law, we can do it very well ourselves without having to rely on Strasbourg jurisprudence. The points that Lord Mance made in response to the previous questions are points that I would very much endorse.
There has been a manifest increase, a ratcheting-up, of British judicial and ministerial influence in Strasbourg that has materially improved the quality of judgments that we get out of Strasbourg. But, frequently, when you read judgments of the European Court of Human Rights and compare them with judgments of our own appeal courts in England or Scotland, you can see a clear difference in the quality of the reasoning.
I think we should be very self-confident as a country now in—dare I say it—taking back control of our own human rights. I do not mean that in any kind of jingoistic way or in any way associated with any kind of withdrawal from the convention or from Strasbourg or anything like that. What I do mean is that we should have, and I think we do have, the self-confidence in our Parliament and in our courts to articulate for ourselves as a country the rights that we want to regard as fundamental and to legislate for them in a way that we already do, and to adjudicate on disputes arising with regard to those rights without having to worry too much about what is happening in Strasbourg.
Earlier in this evidence session, before the Members of Parliament had to vote, Lord Mance reminded us all that one of the key aims of the original Human Rights Bill introduced by Lord Irvine and Jack Straw all those years ago was to reduce the number of cases going to Strasbourg, and in particular to reduce the number of UK government defeats in Strasbourg. I do not think it follows that if, 20 years on, we do something more now to decouple our own human rights jurisprudence and our own architecture of human rights law from Strasbourg that we will necessarily see more cases going to Strasbourg or more government defeats.
I do not think the two necessarily follow from one another, because, irrespective of what any replacement to Section 2 of the HRA says in statute, our appeal court judges will still be very deeply conscious of what is happening in Strasbourg. Unless they are clearly told by Parliament not to, I think they will want to take that into account as they develop the common law and statutory understandings of human rights law here in the United Kingdom. That is a long answer to a short question, but the short answer is yes.
Baroness Ludford: Excellent. Lord Mance.
Lord Mance: I just want to make this point. As the author of a leading judgment in Kennedy v the Charity Commission, I would be the first to encourage lawyers and judges to look at the common law position and not to focus exclusively on the human rights position. That is effectively what we said in the context there. It was about how far the Charities Commission was obliged to act transparently, and we thought that remedies could be found at common law as much as elsewhere.
But one has to face up to the fact that there have been situations when the convention and the Human Rights Act have helped domestic law to advance. The removal of the Home Secretary’s right to set the tariff for lifers is a good example, as is the removal of sentencing discretion from the Executive, the ending of detention without trial of aliens suspected of terrorist involvement, the lifting of the ban on homosexuals in the Armed Forces or, in a civil law context, the development of a law of privacy. These are all matters where the convention was a necessary inspiration.
I would qualify Professor Tomkins’ statement to this extent: that we have not always been able to find a remedy at common law. As to the particular proposal, I actually have reservations, because it strikes me as a rather odd and clunky interference with court procedure, with actual judicial activity: “You shall consider first this before considering that”. That is not the way courts operate, and it could be very questionable sometimes.
For example, if a point of common law is very uncertain, do you have to compel the lawyers to argue it out over two days when there is an obvious convention point? That would be hugely expensive. I think the review has gone too far in saying, “You must do this first before you must then do that”. I am entirely happy with something that says that you should take account of the potential relevance of UK statutory and common law rights in the relevant area, as well as take account of Strasbourg case law. Something like that would be fine, but it would leave it to the court to carry on its business in the usual way, rather than fettering it procedurally and formulaically.
Baroness Ludford: Very interesting answers from all three of you. I am glad to say that Dr Tyrrell also wants to complete the quartet.
Dr Hélène Tyrrell: I just wanted to flag one possible complication, which is that even though priority might be given to sources of law that are not based in the convention, there is the fact that claimants may need to press the domestic courts to look at convention rights where they might be relevant. That is because the Strasbourg court has recently suggested that it is a requirement. The domestic courts have been asked to consider the convention rights if claimants want later to be able to take their case to Strasbourg. That was the reason given a couple of weeks ago in the Lee v the United Kingdom case, when the claimants in the so-called gay cake case were told that their application to Strasbourg was inadmissible.
It might be remembered that that was the claim that was brought for breach of Northern Ireland’s anti-discrimination laws against a bakery that had refused to sell a cake iced with the message supporting legalising same-sex marriage. The claim before the domestic courts had not asked the Supreme Court to balance the convention rights of that claimant against those of the bakery and its owners. It had relied solely on domestic law, and on that basis the Strasbourg court said that that meant that they had not exhausted all their domestic remedies prior to their application under the convention, so the case was inadmissible. I suspect the lawyers will have that in mind even if the courts are told to prioritise other things.
Chair: Thanks. Yes, that was a very interesting case. Lord Dubs will ask a little more about the obligation under Section 2.
Q6 Lord Dubs: Thank you, Chair. This question follows very clearly from the last question. The government consultation suggests that weakening the obligation in Section 2 would provide that UK courts no longer have to take into account the relevant ECHR case law, although they may have regard to it. What do you think will be the advantages and disadvantages of that approach? How could amending Section 2 affect the relationship between the UK court and Strasbourg? Let me add this. Do you think the approach would undermine the original aim of the Human Rights Act to bring rights home? Would it lead to more individuals pursuing their claims in Strasbourg?
Professor Alison Young: I agree that, if we are not careful, weakening the connection between UK cases and Strasbourg cases could lead to undermining the idea of bringing rights home and could lead to more cases going to Strasbourg. That is very hard to predict, because obviously it will depend on what the newly worded Section 2 will be. It will also depend on how far the UK courts still have regard to cases before Strasbourg when taking their own particular decisions.
As Lord Mance indicated in his answer to previous questions, the UK courts have been thinking that they take account, but they take account respectfully, and if you look at instances where UK courts tend to disagree with Strasbourg, it is always done for specific reasons—for example, because there has been a misunderstanding of UK law or how it applies, or because there are problems with the reasoning in the judgment and they believe that there are better reasons in a minority judgment before the European Court of Human Rights rather than the majority.
I do not think that element of respect and reasoning will necessarily disappear. You may find that even if you weaken it and still allow UK courts the ability not to necessarily follow Strasbourg courts, UK courts will not necessarily think, “Well, that means that we can do whatever we want and disagree with the Strasbourg case just because we feel like it”. I think courts will continue to give that institutional respect to judgments of other courts in the same way they do if they are looking at judgments from the Canadian Supreme Court if they are using that to influence their development.
The potential problem will be whether there will then be criticisms of the courts because they are not using this freedom not to follow Strasbourg in certain cases. That could undermine our trust in the judiciary and protecting those particular rights.
Lord Dubs: Thank you.
Dr Hélène Tyrrell: An advantage to weakening the Section 2 obligation, although I do not think this is particularly persuasive, is that it would to some extent appease those who are worried about tying the UK courts too closely to the Strasbourg pronouncements. It might make it clearer that Strasbourg case law is merely one of a number of persuasive sources that might be considered in human rights cases.
However, those points have broadly been made before, and the court is free to take into account a range of sources, including the Strasbourg jurisprudence in these cases. As Professor Young intimated earlier, there might be a case for saying that if the courts are freed from the Strasbourg jurisprudence, they might be better able to support going beyond it, where it can be supported by reference to other relevant sources of authority, although I am not sure the Government would consider that an advantage as such.
Requiring domestic courts to take the Strasbourg jurisprudence into account means that even in cases where the court does not consider that they should follow it, they are more likely to come up with explanations for diverging from what the Strasbourg court has previously indicated that it would say on the matter. These elements were alluded to in one of Lord Mance’s answers earlier in the session when he mentioned dialogue. It is these elements in the judgments of domestic courts that contribute to the dialogue between the UK and Strasbourg, and in turn that is how the UK can contribute to the development of the convention jurisprudence.
I believe that the committee has received evidence in the past on this: that careful consideration of convention principles in domestic courts also makes it less likely that the Strasbourg court will make adverse findings against the UK in subsequent cases on that point. The answer to the second part of your question is bound up in that. Breaking the formal link between the UK courts and Strasbourg could also make it more likely that there will be diversions in the understanding of convention rights. It also means that people would be more likely to need to pursue their claims before Strasbourg; and, of course, if they have not had the advantages of reading carefully reasoned judgments that take account of their jurisprudence, they might be more likely to find against the UK when they have to decide the case.
Lord Dubs: All right. Thank you very much.
Professor Tomkins: Thank you, Lord Dubs. I do not have much to add to what has already been covered on this point. I would be in favour of deleting the word “must” in Section 2 of the Human Rights Act and replacing it with the word “may”, for much the same reason that Lord Mance has already objected to the word “must” appearing in some of the Government’s proposed alternatives.
If courts want to take into account the jurisprudence of Strasbourg, they should be able to take it into account. If courts want to take into account the jurisprudence of the Supreme Court of Canada, the High Court of Australia, the Israeli Supreme Court or some other common law court that is grappling with very similar issues, the UK Supreme Court should be free to take that into account as well. We should not be compelled in any of these cases to follow it.
There was a problem with the meaning of Section 2, 10 or 15 years ago after the Ullah case, where the Supreme Court/the House of Lords seems to tie itself more closely to Strasbourg jurisprudence than the Human Rights Act had intended. But those overly tight ties have been loosened of late and the current jurisprudence is not unsatisfactory. It is clear that the UK Supreme Court, and indeed other appeals courts in the United Kingdom, now have the self-confidence that I was talking about a few minutes ago with regard to rights jurisprudence to depart from Strasbourg jurisprudence when it is appropriate to do so in the circumstances that we find ourselves in in the United Kingdom.
Whatever ends up replacing or revising Section 2 of the HRA should reflect that reality. There is a degree of discretion here that our appeal courts enjoy and should enjoy and which, by and large in recent years, if not in the earlier days of the Human Rights Act, has been exercised appropriately and responsibly. I would like our human rights law to be loosely tied, but not too tightly tied, to the jurisprudence of the Strasbourg court. I think that is what we have. I think that is what the Human Rights Act, as originally enacted, intended. That is broadly where we have got to over the last 20 years, and we should probably stay there.
Lord Dubs: Thank you. Lord Mance.
Lord Mance: I think the Government should be careful what they wish for. If you have a policy of avoiding challenges in Strasbourg, must or requiring in this context is sensible. The Act is intended to avoid that. There is also the underlying presumption that will ineluctably direct courts to look at Strasbourg jurisprudence, and that is the presumption that the Act should be interpreted in a way that complies with this country’s international obligations.
Now, I am not sure which way the Government’s paper is going on this. Half the time it is saying that it would like freedom for courts to depart more often in its favour—in other words, to go less far than Strasbourg. But then, at other points, it says that the aim, by encouraging for example citation of the South African Constitutional Court or the Canadian Supreme Court jurisprudence, would be to promote a more autonomous approach—I assume an individual, English, approach.
As Dr Tyrrell pointed out, if you do that, you may get caught saying, “Well, why shouldn’t we go a bit further than Strasbourg would, because we’re deciding for ourselves?” The reality is that recent jurisprudence in the Supreme Court has gone in a way that I would have thought makes quite a lot of this discussion rather academic, b