Lectures by senior judges on the relationship between UK and European law are rather like the proverbial bus: you wait around for one, and then several arrive almost simultaneously. In the last few weeks, the nature of that relationship has been considered, extra-judicially, by Lord Sumption (on which see this post), Laws LJ (on which see this post), Lady Hale and, most recently, Lord Judge, who retired earlier this year as Lord Chief Justice.
It is increasingly clear that the senior judiciary is dissatisfied with the “mirror principle” laid down by Lord Bingham in the Ullah v Special Adjudicator  UKHL 26,  2 AC 323, in which he said: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” But as well as casting doubt upon the accuracy and desirability of the mirror principle, the recent extra-judicial pronouncements have excited interest by relating the technical legal debate more explicitly to the wider political, democratic and institutional controversies that arise in this area.
A significant difficulty with the presentation of this matter in the media—and, to a much more limited extent, its treatment in the recent judicial contributions to the debate—is a tendency to run together three interrelated but simultaneously distinct issues. In the interests of promoting greater clarity of debate, this post seeks to disaggregate the domestic law position, the international law position, and the wider political issues.
At the domestic level, two points are particularly germane. First, it is a general principle of UK law that courts will seek, where possible, to interpret domestic legislation compatibly with the international obligations into which the UK has entered. This is based upon the reasonable assumption that Parliament is not lightly to be taken to have legislated so as to place the UK in breach of those obligations. Second, that general principle is given specific force—and perhaps modified—by section 2(1) of the Human Rights Act 1998. It says that:
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights, … 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.
Taken at face value, it is clear that this provision does not require UK courts to adopt the ECtHR’s interpretation of the Convention; the requirement is merely to take into account the Strasbourg case law. And in fact, Ullah and the mirror principle notwithstanding, it is also clear that—as Roger Masterman explains in an excellent post on the UK Constitutional Law Blog—UK courts do not believe that their jurisprudence must invariably track precisely the Strasbourg case law. Nevertheless, Lord Judge—echoing views expressed in Laws LJ’s recent lecture—argues that section 2(1) should be amended in order to make it even clearer that UK courts need not follow Strasbourg:
Where do we go from here? It would, I believe, make sense for s 2(1) of the 1998 Act to be amended, to express (a) that the obligation to take account of the decisions of the Strasbourg Court did not mean that our Supreme Court was required to follow or apply those decisions, and (b) that in this jurisdiction the Supreme Court is, at the very least, a court of equal standing with the Strasbourg Court.
As well as arguing that UK courts are not obliged to jump when Strasbourg tells it to (and that the HRA should make this even clearer than it presently does), Lord Judge says that British membership of the ECHR system does nothing to detract from the authority—the sovereignty—of the UK Parliament:
The consequence of the sovereignty of Parliament is that whether they like it or not, judges are bound to apply an Act of Parliament even where that Act provides for the application of judicial authority from a foreign court. This was the result of the European Communities Act 1972. The position of the judiciary is frequently misunderstood. Judges have no choice. They are bound by British law to follow the rulings of the Court of Justice of the European Union in Luxemburg. Our judiciary cannot set aside the law enacted by Parliament, nor suspend it nor dispense with it. To do so would contravene the Bill of Rights. Exactly the same principle applies to the enactment of the Human Rights Act 1998. The courts are required by domestic legislation to implement the European Convention of Human Rights just because the Human Rights Act is legislation enacted by Parliament.
Again, this echoes Laws LJ’s analysis of the status of EU law in the UK. As matter of purely domestic law, the analysis (if we accept an unvarnished account of parliamentary sovereignty) is unassailable. Parliament, as Lord Judge puts it, is the “only source” of power in the UK constitution. On this view (which, I note in passing, overlooks the royal prerogative as a distinct source of authority), any authority enjoyed in the UK by other bodies of law—whether deriving from the EU, the ECHR or elsewhere—is enjoyed only because, to the extent, and on the terms that Parliament ordains.
Lord Judge’s conception of status of the ECHR—and, hence, of the Strasbourg jurisprudence—within UK legal system leads him to the conclusion about the relationship between the UK Supreme Court and the ECtHR should not be conceived of in hierarchical terms:
In my view, the Strasbourg Court is not superior to our Supreme Court. It is not, and it is important to emphasise, that it has never been granted the kind of authority granted to the Supreme Court in the United States of America, authority, let it be emphasised, which is well established in the constitutional arrangements of that country. Nevertheless, although not in any sense a Supreme Court of Europe, which, I repeat, does not consist of a federation of states as the United States of America does, by using the concept of a “living instrument”, the Court appears to be assuming, or seeking to assume the same mantle.
This raises an interesting question about what “superior” means in this context. It is perfectly true that the UK Supreme Court, as the court of final appeal, is the highest judicial authority in the United Kingdom. However, it is equally true that the ECtHR is the body with ultimate authority to decide what the Convention means. As Lord Bingham put it in Ullah: “the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court”. Looked at in one way, neither the UK Supreme Court nor the ECtHR is superior to the other: each is the apex judicial body within its own sphere of influence.
Yet the difficulty with this analysis is that those spheres of influence are not mutually exclusive. Circumstances can—and do—arise in which the Strasbourg Court renders an interpretation of the Convention that is at odds with the domestic courts’, including the Supreme Court’s, understanding of the Convention. There can be, and sometimes is, “dialogue” between the two courts in such situations, and it is not always the case that the Strasbourg view prevails. If, however, there is an irreconcilable difference of opinion, there must be some way of determining which view prevails. And there is. Article 46(1) ECHR says that: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” This does not, in and of itself, require domestic courts to fall into line with Strasbourg: but it does mean that if they fail to do so, then the UK will be in breach of an obligation that is binding upon it in international law.
A similar point can be made in relation to Article 1 ECHR, which says that: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” This does not bite upon the doctrine of parliamentary sovereignty so as to make it unlawful, as a matter of UK constitution law, for Parliament to breach the Convention: but it does mean that national legislation that conflicts with the Convention places the UK in breach of its international obligations.
The question that is ultimately raised by Lord Judge’s analysis of the ECHR—like that which is raised by Laws LJ’s analysis of EU law—is whether it remains satisfactory to examine matters such as these from an exclusively, or even predominantly, domestic perspective. The alternative is to acknowledge that, for as long as the UK is a party to the ECHR and a member of the EU, its legal freedom—viewed as a construct not only of domestic but also of international law—is curtailed. This does not make the purely-domestic analysis irrelevant: it remains, for instance, highly pertinent to the debate about exit from the EU or ECHR and the conditions that would pertain thereafter. Nor does it make less worthwhile attempts to understand how we account, in domestic terms, for the influence of international norms upon our legal system. The point remains, however, that such domestic analysis must be situated within a wider context that takes due account of the international obligations by which, for the time being, the UK is legally bound.
It is important that the debate about the ECHR, and the UK’s relationship with it, is conducted in the light of an accurate appreciation of what the legal position is. A separate question is whether the current position is one that ought to obtain. On this matter, Lord Judge said:
My profound concern about the long-term impact of these issues on our constitutional affairs is the democratic deficit. As I emphasised at the outset, in our constitutional arrangements Parliament is sovereign. It can overrule, through the legislative process, any decision of our Supreme Court. In relation to the Strasbourg Court, and the Convention, is this principle negatived by our accession to the treaty obligation contained in Article 46? Do we, can we, accept the obligation recently announced [by the ECtHR] in Del Rio Prada that when a UK case arises, our Parliament must take “general measures in its domestic legal order to put an end” to the violations found by the European Court? Can that possibly be required if Parliament disagrees? For me the answer is, of course not. But these observations clearly indicate the intended route, and the future is long as well as short.
The issue upon which Lord Judge is touching here is the extent to which judicial review of legislation on human-rights grounds can be properly regarded as dialogic. Viewed from a purely domestic perspective, when a UK court issues a declaration of incompatibility under section 4 of the HRA, it is open to Parliament to ignore it. In this sense, Parliament can have the last word. Equally, when a UK court interprets legislation compatibly with the ECHR pursuant to section 3 of the HRA, Parliament can legislate so as to reverse the effect of such an interpretation. Again, Parliament can have the final say.
Once again, however, the picture changes markedly when the blinkers are removed and the international dimension is properly appreciated. As the ECtHR said in the Del Rio Prada case, when Strasbourg rules in an individual case, the state concerned is, where appropriate, required to take “general measures in its domestic legal order to put an end to the violation found by the Court and to redress its effects”. There is nothing startling about this: it follows naturally from Articles 1 and 46(1) ECHR and the legally-binding nature of the obligations thereby imposed upon individual states. Looked at in this way, judicial review on human-rights grounds is anything but dialogic. Unless the UK Parliament is prepared to act in a way that places the UK in breach of its international obligations, it is forced to concede the final word to Strasbourg.
Whether this is “undemocratic”, as Lord Judge suggests, is open to question. (For one thing, it invites deeper questions about what, in the first place, we mean about democracy.) It does, however, mean that the form of constitutional review to which UK legislation is subject is far stronger in form than is generally supposed. This conceals an important paradox lying at the heart of the present debate: that those who seek to defend the sovereignty of Parliament and the supremacy of the UK’s top court often attempt do so not by straightforwardly arguing in favour of those ideas, but by insisting that they are undiminished by British membership of European institutions. For there to be an honest and effective debate, both sides must first acknowledge that, for the time being at least, European law has a constraining effect upon the United Kingdom than cannot be neutralised by reliance upon constructs of purely domestic constitution law. Only then can the appropriateness of that constraining effect be properly challenged or defended as the case may be.