I wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.
Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals
are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.
Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.
On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.
On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).
The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:
[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.
One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.
International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.
Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.
Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.
A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.
It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.
Public Law for Everyone 
Thanks for this thoughtful response, Mark, with which I pretty much concur.
Two quick thoughts.
One is that we can evaluate the damage that UK withdrawal/negotiation out of individual petition etc would do to the ECHR system itself (esp the danger that other states would then follow suit, leading eventually to a severe weakening of the whole scheme) before knowing the details of a replacement British BOR. (Of course we can’t predict the results with any certainty here).
The other is that, while I agree that it’s incumbent on the Tories to come forward with detailed proposals for the BBOR, we can I think be pretty sure that it will ‘HRA-minus’, perhaps as weak as the NZBORA, I would guess with some attempt at ruling out horizontality and probably with some qualifications and ‘responsibility-tweaks’ built into the rights themselves, perhaps as in the Elphicke back-bench bill, well analysed here: http://wp.me/p2t7Ey-4c. The Grayling proposals are now well overdue (they were I think due out in Jan); we can now presume that the ‘blockage’ – in the form of Grieve, Clarke and possibly Hague as well – has now been removed and so I assume we’ll see something fairly soon now.
Thanks, Gavin. I agree that we can assess some of the implications now—although I do think just how damaging withdrawal would be likely to be would depend, to some extent at least, on how it was done. I’ve added a sentence or two to the post to address this point.
Dear Mark and Gavin,
Thank you for publicising your thoughts on this; it’s a fascinating topic, and one that I have been researching and am really interested in taking further.
On the role of the Court, for me the heart of issue is for it to acknowledge the limitations of its authority in view of its status as an international institution. The Court must proceed (as it invariably does – and has been very clearly indeed in recent case law, I’d say) on the basis of a prudent notion of self-restraint, precisely because of the lack of a democratic override etc – and it may have to convincingly demonstrate that there are adequate checks and balances within the Strasbourg system (eg the Grand Chamber rehearing process) to guard against undue activism at the chamber level.
Of course this does not mean that the Court must always give way to a national legislature simply because a matter of social policy is in issue. It must strike the balance once referred to by Judge Mahoney (writing in his personal capacity, and before he became a Strasbourg judge, and here I paraphrase, not having the reference to hand): it must not abdicate to nationalist pressure the ultimate responsibility for assuring human rights protection, including for minorities failed by the national democratic process; at the same time, Strasbourg judges must resist the temptation to substitute their own personal view on the matter for that of national decision-makers.
In my view the Court got to that outcome and struck that balance (ultimately) in the final prisoner voting case (Scoppola No 3, 2012), although it was less clear that it had done so in the original prisoner voting judgment of 2005 [Hirst] (I argue this in an article which is due to be published any day now in Human Rights Law Review (advanced access), I hope you will forgive my unashamed plug!).
Best wishes,
Ed Bates – Southampton Law School.
Dear Mark
The whole of the ‘in’ or ‘out’ debate has very little to do in substance with the ECHR. There is not, in my view, one substantial example where the Strasbourg Court or the domestic courts infringed some fundamental element of ‘democracy’ in any decision they have made regarding human rights.
The ECHR is also part of a wider EU legal system in which other elements of EU law have direct effect in a way that ECHR based decisions do not. So why the intense focus on the ECHR?
I think this a just a trojan horse for a global capital agenda in which the city and its friends in the media are the prime movers. Being part of a socially democratic Europe with a fair distribution of economic resources and respect for human rights is definitely not on that agenda.
Ironically, globalisation is not about the support of ‘sovereign’ parliaments but the erosion of that power in a globalised world of free markets and free capital.
So any debate about the future of the ECHR or a British Bill of rights should be framed by that premise.
Cast in these terms the question should be, which system would best protect respect for human rights and economic equality in a globalised world, a ‘free market’ Britain or a socially democratic EU? The sensible answer is undoubtedly the EU.
Debate about the form of human rights protection in a post EU Britain is only an academic exercise without this framing ( in my respectful opinion).
regards
Malcolm
Thanks for your comment. I don’t agree that these questions are purely academic: they are likely to play out in a very tangible way in the forthcoming general election campaign, and the prospect of the UK leaving the ECHR and EU systems is a real (if still unlikely) one. If that were to happen, the consequences would be far from “only” academic.
Nor is (as you put it) the ECHR “part of a wider EU legal system”. The EU and the ECHR are distinct legal systems based upon different international treaties. But it is not, in any event, the case (as you suggest it is) that concern focuses exclusively upon the ECHR. There is also concern (whether or not well-founded) about the UK’s membership of the EU—hence the Conservative Party’s pledge to attempt to renegotiate the terms of Britain’s membership and to hold a referendum on this in 2017. If, on the other hand, you ask of my post (as distinct from the wider debate) “why the focus on the ECHR”, then the answer is straightforwardly that my post is concerned with the implications of the direction in which Conservative Party policy is reportedly moving in this particular area.
Thanks for your piece, Mark, and for prompting such an interesting set of comments. I agree with your point that proponents (or constructive critics) of the Convention system need to articulate the reasons why Article 46 and the absence of a democratic override are defensible and not simply remain aloof or cursorily dismiss the sceptics.
I wonder if you rather understate the argument that eschews the idea of democratic override (never mind withdrawal) because of the damage it would do to the collective guarantee of human rights protection which is at the heart of the Convention system. You say that it is a ‘value judgment’ that is ‘not self-evidently correct’. This is true to the extent that it is a judgment formed not only within legal, but also moral and political debate, and that political constitutionalism is a respectable normative position. But renowned adherents of this position (Jeremy Waldron and Richard Bellamy among them) have of course defended the Convention system in its present form as compatible with at least a version of political constitutionalism; among other reasons, because the ECHR has been democratically ratified by states; because of the application of the margin of appreciation; and because protection of minorities, with authority placed outside the legislature, is a necessary check on any majoritarian democratic institution worthy of respect. Both have expressly called for the UK to implement Hirst. Andreas Follesdal argues compellingly that the international human rights judiciary plays a limited, democratically-defensible role even within well-functioning democracies, correcting the (few) human rights violations that may still occur and providing citizens with assurance about compliance both by their own government and other governments, thereby building public trust in democratically-elected national institutions. The legitimating function of the Parliamentary Assembly of the Council of Europe also merits further examination.
I agree strongly with you that these arguments are not merely of academic interest but need to be inserted as energetically as possible into the parochial and ill-informed debate that prevails in the UK. There is already some evidence that Conservative rhetoric (whatever their ultimate intentions) gives succour to some of Europe’s serial human rights offenders, who are watching the UK debate closely and refer to it directly in seeking to evade their obligations. See, e.g.: http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/.
If the rhetoric were to be followed through with action by a Conservative majority government it is inconceivable that there would not be substantial damage to the Convention system, even though the precise nature and extent of the damage is necessarily a matter of speculation. What I think needs to be emphasised is the gross disjuncture between the ‘problem’ – a very small number of judgements (in fact, possibly just one – Hirst) that have provoked arguments about a democratic deficit at Strasbourg and the proposed ‘solution’ (in the form of withdrawal or a serious weakening of Strasbourg’s authority) which risks holing the world’s most successful human rights system below the water line. The Conservatives have enthusiastically implemented other judgments – such as the DNA case, Marper – which exposes the political opportunism behind the Hirst furore. The stridency of this debate is not replicated anywhere else in the Council of Europe. The political explanation for this posturing, I believe, is that Strasbourg is a very convenient proxy for the Tories’ bigger problem with the EU and the threat of UKIP. The EU and the Council of Europe are deliberately elided to foster this proxy war. It’s pretty nasty, utterly irresponsible politics and it will only get worse in the next 10 months.
Thanks, Alice, for taking the time to make these very thoughtful comments. I strongly agree with what you say about the political posturing that lies behind much of the fire being directed by the Conservative Party at the ECHR/ECtHR. And I certainly don’t disagree with your point about the defensibility of the Convention system. My argument is not intended to challenge the positions taken by the likes of Waldron and Bellamy. Rather, the intention is to point out — in agreement, I think, with what Gavin Phillipson says in the piece that prompted my own — that it is possible to question the Strasbourg system without being guilty of “right-wing crankery”. There are, very obviously, other possible ways of striking the balance between legal-constitutional and political-constitutional forms of control vis-a-vis human rights; the principal burden of my argument is simply that those seeking to defend the present position need to work harder. There is, I think, an unfortunate tendency among some parts of the liberal legal/academic community immediately to characterise any challenge to the Strasbourg system as beyond the pale. As a result, the debate tends to assume a reactionary dynamic that is not particularly helpful. I also think (for my own part) that while arguments about the UK’s international standing and the strength of the European human rights system are capable of getting defenders of the current arrangements so far, the purchase of such arguments in the now-developing debate is likely to be limited. As such, there is a need for both sides to engage with arguments about what sort of domestic system of human rights protection is appropriate — and those in favour of the ECHR system need to justify why it would be preferable to an exclusively domestic system. I do not doubt that strong arguments of that nature can be made.
Dear Alice
I agree with your views on having an informed debate on Europe.
I would say, however, that the framing of the debate in the UK is not just about UKIP or even very much about UKIP. If it was then the major press organs and PR machines of the major political parties and business would squash the debate very quickly, no doubt using many of the arguments you have set out. In my view, it runs deeper to the heart of the Westminster establishment on both sides of the house ,and their supporters, about their concerns about the influence of the EU, in terms of human rights and social democratic policy, in a globalised, post colonial world.
I do think that the democratic legitimacy of the EU and the ECHR is challenged precisely because it places ‘democratic’ values based on human rights as its fundamental foundation. In terms of ‘reforming’ the EU, the ‘debate’ , in a global context, can only sensibly be about enhancing genuine ‘democratic’ reform and human rights, but from a strong base, if improving democracy and respect for human rights within the EU is the goal. In this context, the debate about the extent of free market policies affecting the EU is far more concerning in relation to ‘democratic values’ than the operation of the ECHR.
I also do not think that criticism of the EU and the ECHR is ‘right wing crankery’ unless it is of course, in substance, ‘right wing crankery’, (and there is a lot of it about, sophisticated or otherwise). Freedom of expression is a fundamental right under the ECHR, and one that I fully support, so that the EU and the ECHR can be held to account and subject to diverse criticism as part of its democratic processes.
My concern is that the the ‘democratic’ deficit in the EU is blown out of all proportion whether it be in relation to human rights, or otherwise, and that the debate about ‘in’ or ‘out’ is ill -informed precisely because the major press organs and PR machines of the major political parties and business want it that way. The question is why? The answer, in my view, has less to do in substance with a democratic deficit in the EU or UKIP than is popularly thought, and more to do with globalisation.
My essential point is that the debate about democracy in the EU or under the ECHR will only be properly informed when globalisation and its effect on democracy and respect for human rights, is central to that debate. I would not expect that to happen any time soon because the major players who can properly inform the public have no interest in doing so.
That’s not to say that we should not try to keep the debate as informed as it can be, given these limitations.
regards
Malcolm
Mark,
Excellent post, and the contributions from everyone else have been very interesting too. Michael
Pinto-Duschensky writing in 2011 noted that academic writing on the HRA usually glossed over the legitimacy issues generated by the role of the Strasbourg Court and the lack of a democratic override within the Convention system. He was right to highlight this gap, and your post along with Gavin’s earlier contribution highlights the need to have this discussion. I take the view that the ECHR system is entirely compatible with a strong commitment to parliamentary democracy, not least because national authorities have the final say in determining the content of national law – but I’m writing a paper on this, so will hold off saying anything more until I get my thoughts in proper order!
Colm O’Cinneide
Thanks, Colm. Would be very interested to see your paper in due course.