In a recent article in The Telegraph, the Shadow Justice Secretary Sadiq Khan sketches the human-rights policy with which it seems Labour will go into the 2015 election campaign. The article is supportive both of the UK’s membership of the European Convention on Human Rights and of the Human Rights Act 1998. Within the current political climate, support for those things cannot be taken for granted, and Khan’s measured contribution to the debate is to be welcomed. However, the details (such as they are) of Labour’s proposals leave something to be desired.
Khan adds his voice to growing unease about the relationship between UK courts and the European Court of Human Rights, focusing his attention on section 2 of the HRA, which says that domestic courts and tribunals must “take into account” the case law of the Strasbourg Court, so far as it is, in the opinion of the domestic court, relevant. As is well-known, this requirement has been elevated by some UK judges into a so-called mirror principle, an approach that arguably reached its apotheosis in Lord Bingham’s judgment in 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.”
It is this interpretation of section 2 with which Khan takes issue. He says that section 2 is purposefully framed so as to avoid the subservience of domestic courts to Strasbourg:
British courts are held in high regard the world over. I’m proud of our judges; their expertise is the envy of many other countries. That’s why, when the Labour government in 1998 brought in a British Bill of Rights – the Human Rights Act – we deliberately drafted the wording to protect British courts. It meant they’d be free to disagree with the European Court of Human Rights in Strasbourg, and that the sovereignty of the UK would not be undermined.
The wording, contained in Section 2 of the Human Rights Act, very clearly states that our courts only have to take into account Strasbourg judgments, not be bound by them. This was extensively debated at the time in Parliament, and as the records clearly show, the Tories tried to change Labour’s wording, which would have actually resulted in our judges being bound by Strasbourg’s rulings. Thankfully, Labour defeated the Tories’ crazy plans.
Khan goes on to argue that although the framers of the HRA got it right, domestic courts have subsequently erred by transforming the section 2 obligation to consider Strasbourg jurisprudence into something more prescriptive—in effect, an obligation to follow that jurisprudence:
… 16 years on, I think we have to acknowledge that, at times, our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.
What, then, is the solution to this perceived problem? The courts, says Khan, will be told, by way of “guidance”, what section 2 of the HRA does—and, more importantly, does not—require of them:
… the next Labour government will end this unacceptable situation. We’ll use the 800th anniversary of the Magna Carta – the world’s first bill of rights – to assert the role of British courts vis-à-vis Strasbourg. We will make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.
We believe we can achieve this shifting of power back to our courts by publishing guidance alone, but I don’t rule out re-legislating to make things doubly clear if matters don’t improve. By doing so, we’ll allow our courts to make a distinctively British contribution to the development and protection of human rights.
This raises a number of questions, two of which I will highlight without attempting to provide comprehensive answers to them.
First, in the absence of primary legislation amending or supplementing section 2 of the HRA, it is unclear what non-statutory guidance would, or could properly, achieve. The duty of constitutionally independent courts and tribunals is to apply the law. The law in question is contained in an Act of Parliament, and the suggestion that courts’ interpretation of section 2 of the Act could or should be influenced by “guidance” issued by the administrative branch of government is constitutionally dubious to say the least. Lord Diplock’s description of the separation of powers in Duport Steels Ltd v Sirs  1 WLR 142, 157 is arguably exaggerated and simplistic, but there is nevertheless a kernel of truth in it:
[I]t cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them.
The legitimate scope for administrative guidance as to the meaning of the courts’ statutory obligation to take account of Strasbourg jurisprudence is thus limited, and, arguably, non-existent. The possibility arises, therefore, that any “guidance” issued by the government would be ineffective on the ground that it lacks constitutional authority to direct courts as to the interpretation of the law. (The other possibility is that the guidance would be ineffective because it would merely require the courts to do that which they are already doing—slavish adherence to Strasbourg jurisprudence having fallen out of fashion somewhat in recent years, as cases like R v Horncastle  UKSC 14,  2 AC 373, in which the UK Supreme Court adopted a more muscular approach in relations with Strasbourg, demonstrate.)
Second, even if the separation-of-powers objection were put to one side—or overcome by means of amending section 2 itself so as to delimit the obligation more clearly—a further matter would arise, concerning the relationship between the HRA and the ECHR, and so between domestic and international law. Khan’s point about the “sovereignty” of UK courts is an interesting but ultimately misplaced one. It echoes Lord Judge’s assertion that “the Strasbourg Court is not superior to our Supreme Court”. The implication is that, within our legal system, domestic courts—not the Strasbourg Court—have, or at least ought to have, the final say. But this attempt to understand the relationship between the two courts in hierarchical terms is arguably misplaced.
The UK Supreme Court, as the court of final appeal, is undeniably 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”. It follows, then, that 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.
What is unusual about the HRA is that it brings two such spheres of influence into contact with one another in a way that is disorientating from a British perspective steeped in the traditions of parliamentary sovereignty. And the complexities of the situation wrought by the HRA cannot adequately be navigated by recourse to concepts of supremacy or hierarchy. The upshot is that it is entirely feasible (albeit not, perhaps, by means of administrative guidance) for UK courts to be required to construe the ECHR in ways that are at odds with Strasbourg’s interpretation. It is also entirely possible for situations to arise in which inconsistencies between domestic and ECtHR interpretations of the Convention do not result in a stand-off between the two systems (e.g. because a divergent domestic construction falls within the ambit of the applicable margin of appreciation or because such a construction forms part of a dialogic exchange that will eventually result in a form of negotiated compromise).
Ultimately, however, the scope for UK courts to interpret and apply the Convention differently from the Strasbourg Court must run up against the constraining effect of international law upon the UK. Neither the HRA nor the ECHR restricts the sovereignty of the UK Parliament as a matter of domestic constitutional law, and Parliament therefore remains free to require domestic courts to do as Parliament pleases—including ignoring or departing from Strasbourg jurisprudence. But the ECHR does bite upon the sovereignty of the UK as a nation state in international law, in that, for as long as the UK remains a party to the Convention, its room for lawful manoeuvre is necessarily restrained by terms of the Convention.
Against this background, Labour’s plans for the HRA leave something to be desired. They disclose a limited appreciation of both the constitutional separation of powers and the relationship between the realms of domestic and international law. It is also arguable that Labour’s proposals amount to a solution looking for a problem, given that the courts have clearly begun to retreat from the high-water mark of the Ullah principle.