Written evidence from the Cambridge Centre for Public Law (HRA0014)

Has the correct balance been struck in the Human Rights Act in the relationship between the domestic courts and the European Court of Human Rights? Are there any advantages or disadvantages in altering that relationship?

1: Introduction

1. This evidence is provided by the Centre for Public Law, a research group in public law based in the Faculty of Law at the University of Cambridge. The primary contributor to this evidence is Dora Robinson, a postgraduate researcher who specialises in the relationship between the European Court of Human Rights and the United Kingdom.

2. Within the UK, counter to common misperception, the balance of power lies with domestic courts over the European Court of Human Rights (‘the European Court’), particularly since the entry into force of the Human Rights Act. This is the correct balance as domestic courts have a better understanding of the domestic legal landscape, institutions and cultural values. The European Court provides limited and flexible checks on domestic court decisions, leading to a dialogue about the best way forward.[1]

3. The government recently reaffirmed its comment to the European Convention on Human Rights (‘ECHR’ or ‘the Convention’) in the recent UK-EU Trade and Cooperation Agreement.[2] Within this framework, an alteration of the relationship could only mean giving more say to the European Court, to the detriment of domestic courts. Given the immense caseload of the European Court, this is also inadvisable for speed and logistical reasons.

4. After the HRA’s entry into force, domestic courts could hear UK cases about violations of the Convention, which was previously only done by the European Court. This evidence provides an overview of the relationship through all the stages of the progress of a case post-HRA. It demonstrates that at all times, the balance of power lies in favour of the domestic courts, that the various parts of the European Court generally show deference to the decisions of the domestic courts, and that this has been enhanced by the HRA.

5. A case concerning an ECHR violation progresses as follows.[3] First, it is heard by the domestic courts. Second, an individual may apply for the European Court to hear their case and the Court will decide whether or not to hear it.[4] Third, if accepted, the Court will hear and decide upon the case’s merits. Fourth, if successful, another body of the Court, the Committee of Ministers – a body made up of the member states’ foreign ministers, will then supervise the UK’s compliance with the judgment and decide when to close the case. Compliance may include the domestic courts’ implementation of the European Court’s judgment. The number of cases thin out dramatically at each stage.[5] The relationship between the domestic courts and each of these stages is recognised by section 2(1) of the HRA which requires the former to ‘take into account’ all of the various decisions.[6]

2: ECHR Cases in Domestic Courts

6. International law does not require domestic courts to abide by European Court cases against other states.

Article 46(1) of the Convention, a treaty to which the UK is party, requires the ‘High Contracting Parties’ to ‘abide by the final judgment of the Court in any case to which they are parties’ (emphasis added).[7] In other words, the UK is not bound by international law to follow European Court judgments concerning other states.

7. There is no requirement in domestic law for domestic courts to follow European Court case law.

Section 2 of the HRA requires domestic courts only to ‘take into account’ any judgment or decision of the European Court, Commission or Committee of Ministers – this is not the same as being obliged to follow senior domestic judgments of binding precedent.[8] Domestic courts often choose to follow European Court jurisprudence but ultimately it is up to them to interpret the Convention, and sometimes they choose to diverge from the Court,[9] or even to go beyond it.[10]

3: Admissibility

8. Most UK cases are only heard by domestic courts since the European Court finds the vast bulk of UK cases inadmissible.

Domestic courts, rather than the European Court, have the final say on the vast majority of claims concerning alleged UK violations of the Convention: between 1966 and 2010 the Court only found 3% of UK cases admissible.[11]

9. European Court refusals to hear cases have increased now that the domestic courts are able to consider them.

82% of cases assigned to a panel of three judges (rather than single judge) since the introduction of the HRA have been found to be inadmissible – rising from an earlier 76% of cases.[12] This is unsurprising since under article 35 of the Convention, the Court will not find a case admissible unless ‘all domestic remedies have been exhausted’, which since October 2000 means that the applicant must have tried first in the domestic courts.[13] The introduction of Protocol 14 to the Convention has further raised the bar by adding an additional admissibility condition of having suffered ‘significant disadvantage’.[14]

4: European Court of Human Rights Judgments

10. The European Court often follows or defers to the domestic courts’ reasoning on cases.

The European Court has been increasingly ruling in favour of its member states, including the UK.[15] This is partly to ongoing reform of the institution,[16] and partly because it seems reluctant to rule against the UK now that doing so means effectively overturning the decisions of the domestic courts, rather than just disagreeing with the government’s lawyers.[17] Sometimes this is because the European Court is reluctant to disagree with the reasoning of the UK’s domestic courts, which it gives great weight to.[18] In other cases, particularly trickier ones, the European Court may also defer to the domestic courts’ position using a principle called the ‘margin of appreciation’.[19]

5: Execution of Cases

11. Following the HRA’s entry into force, the process to close cases is sometimes more fraught, partly because adverse judgments can be more domestically controversial because they ‘overturn’ domestic court rulings.

The Committee of Ministers closes most UK cases fairly promptly – the median case takes under 2 years.[20] In reality, this is a political not a legal process and decisions are made through negotiations. However, now that an adverse European Court judgment effectively overturns domestic court rulings, the implementation of some judgments is more controversial e.g. on life sentences,[21] prisoner voting rights,[22] the deportation of extremist cleric Abu Qatada to Jordan,[23] and deaths at the hands of the UK armed forces.[24] Most of these cases have now been closed with some level of compromise.

12. The Committee of Ministers does not wait until domestic courts have implemented a case to close it.

The Committee of Ministers does not consider it necessary that domestic courts have followed an adverse European Court case to the letter in order to close it. Very few cases are closed on this basis,[25] despite the frequency with which domestic courts cite European Court case law. Furthermore, all things being equal, the Committee of Ministers does not take longer to close cases where the official reasons include judgment implementation through domestic court application.[26] This demonstrates the nuanced and trusting relationship between the domestic courts and the European Court, whereby the domestic courts’ implementation of European Court decisions is not subjected to particular scrutiny. If implementation was heavily scrutinised at this stage, we would expect to see the Committee of Ministers taking longer to close cases.

13. Returning to the first stage of the process, domestic courts can exceptionally and explicitly choose not to implement a European Court judgment against the UK.

Whilst unusual, domestic courts may decline to implement a European Court judgment. For example, in the Horncastle case the Supreme Court declined to implement/follow a European Court judgment, albeit one from the (lower) Chamber, on the use of hearsay evidence in criminal prosecutions.[27] Following this, the (most senior) Grand Chamber reheard the case and this time accepted the Supreme Court’s reasoning in Horncastle.[28] This judicial dialogue again demonstrates the balance of power in favour of the domestic courts. In Hallam a majority of the Supreme Court were critical of the approach of the Grand Chamber of the European Court, failing to see a clear and consistent line of cases to which the domestic courts should follow, concluding that it was not clear that the European Court would find a breach in the specific circumstances of the case. [29]

6: Conclusion

14. In conclusion, the Human Rights Act strikes the correct balance between the domestic courts and the European Court of Human Rights, that is, one in favour of the former. This remains through all stages of the progress of a case concerning a UK violation of the ECHR, and the different relating bodies of the European Court of Human Rights. The HRA reduces the role for the European Court of Human Rights in the ensuring of human rights in the UK and enables the better-placed domestic courts to make the complex and context-specific decisions about how rights should be balanced and the legitimacy of any limitations. To alter this relationship would either be at the detriment of the domestic courts or of UK human rights protections.

18/02/2021