Cases and Materials on the Relation of the British and Convention Legal Systems (prepared by Adam Wagner, QC, and webmaster of http://rightsinfo.com)
Osborn v The Parole Board  UKSC 61, paras. 54 to 63 (Lord Reed)
Domestic law and Convention rights
54. The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights.
55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez-Reisse v Switzerland (1987) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.
56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, "a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct" (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to "the fundamentally subsidiary role of the Convention" (see eg Hatton v United Kingdom (2003) 37 EHRR 28, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1991) 13 EHRR 820, para 27).
57. Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdom's international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
58. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department  UKHL 26;  2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoner's common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30):
"It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them."
59. When the House of Lords considered in R (West) v Parole Board  UKHL 1;  1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the board's review of the prisoner's case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals.
60. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2)  UKHL 71;  2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention.
61. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening)  EWCA Civ 420;  QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88:
"The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere."
62. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice  UKSC 23;  2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK's international obligations, the starting point being our own legal principles rather than the judgments of the international court.
63. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, "it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply" (HM Advocate v Montgomery 2000 JC 111, 117).
Kennedy v The Charity Commission UKSC 20 (26 March 2014) - para. 46 (Lord Mance), para. 133 (Lord Toulson)
46. Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention's inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2)  1 AC 109, 282-284 and the House in Derbyshire County Council v The Times Newspapers Ltd  AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10. In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in the Guardian News and Media case, para 88: "The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition". Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake.
133. The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen's daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.
A v BBC  UKSC 25, paras. 55 to 57 (Lord Reed)
The relationship between the Convention and domestic law
55. It was submitted on behalf of the BBC that the source of the court’s power to allow a party to legal proceedings not to disclose his identity publicly, in a situation where Convention rights are engaged, is to be found in the Convention rights themselves, rather than in the common law. Reference was made to In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47;  1 AC 593, para 23 per Lord Steyn, and In re Guardian News and Media Ltd  UKSC 1;  2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned with the conduct of court proceedings. They concerned a different issue, namely the jurisdiction of the English courts to make orders contra mundum restraining publicity relating to court proceedings, and in particular the publication of information identifying persons involved in those proceedings: a jurisdiction which might otherwise have been in doubt, as Lord Rodger noted.
56. It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening)  UKSC 34;  1 AC 531, Bank Mellat v Her Majesty’s Treasury  UKSC 38;  3 WLR 179 and Kennedy v The Charity Commission  UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable. In another recent decision, R (Osborn) v Parole Board  UKSC 61;  3 WLR 1020, this court referred at para 61 to the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees, and cited as an illustration the case of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 Intervening)  EWCA Civ 420;  QB 618, where an issue falling within the ambit of article 10 was decided by applying the common law principle of open justice. Similar observations were made in Kennedy v The Charity Commission at paras 46 and 133; and the majority judgments in that case provide a further illustration of the same approach.
57. That approach does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40. As the case of V v United Kingdom demonstrates, it is however necessary to bear in mind that, although the Convention and our domestic law give expression to common values, the balance between those values, when they conflict, may not always be struck in the same place under the Convention as it might once have been under our domestic law. In that event, effect must be given to the Convention rights in accordance with the Human Rights Act.
Lady Brenda Hale, UK Constitutionalism on the March? (conclusion)
What these cases show – both those focused on constitutional rights and those on the relationship between EU law and our constitutional order – is a growing awareness of the extent to which the UK’s constitutional principles should be at the forefront of the court’s analysis. The judgments in HS2 raise the issue that it does not follow from Factortame that the 1972 Act necessarily requires our courts to give primacy to EU law over all domestic law, regardless of its constitutional importance. And litigants (or more importantly litigators) have been reminded that they should look first to the common law to protect their fundamental rights: radical suggestions have been made about the power of judicial review to protect them. Whether this trend is developing as a response to the rising tide of anti-European sentiment among parliamentarians, the press and the public, whether it is putting down a marker for what might happen if the 1998 Act were repealed, whether it is a reflection of distinctive judicial philosophies of the judges who are at the forefront of this development, or whether it is simple irritation that our proud traditions of UK constitutionalism seemed to have been forgotten, I leave it to you and to the academics to decide.
Richard Clayton, “The Empire Strikes Back: common law rights and the Human Rights Act,” Public Law, January 2015, pp. 3-12 (footnotes omitted)
In A v Secretary of State for the Home Department the House of Lords’ rejection of the admission of evidence obtained by torture was, again, based on the common law. The right of access by the press to documents discussed in open court was decided on a common law basis in R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court. In Osborn v Parole Board the Supreme Court returned to the question of when fairness required an oral hearing. The reasoning in Guardian News was extended by the Supreme Court in Kennedy v Charity Commission, where it said obiter that the refusal of the Commission to disclose documents to a journalist concerning the Commission’s inquiries into George Galloway’s controversial Iraq charities could be challenged in ordinary judicial review proceedings: on the basis that the common law principle of open justice required disclosure by the Commission (unless there were strong countervailing considerations to the contrary).
The "common law’s emphatic reassertion in recent years of the importance of constitutional rights" has resulted in the new edition of De Smith cataloguing the following common law rights: access to a judicial remedy; the right to life; the liberty of the person; the doing of justice in public; the right to a fair hearing; the prohibition on the retrospective imposition of criminal penalty; freedom of expression; the rights of access to legal advice and to communicate confidentially with a legal adviser under the seal of legal professional privilege; limitations on searches of premises and seizure of documents; prohibition on the use of evidence obtained by torture; that a British citizen has a fundamental right to live in, or return to, that part of the Queen’s territory of which he is a citizen; the deprivation of property rights without compensation; the privilege against self-incrimination; a duty on the state to provide subsistence to asylum-seekers; and freedom of movement within the United Kingdom.
An expansive approach to common law rights has a number of benefits. It permits opportunities for cross fertilisation between Convention rights and common law rights, although this is unlikely to occur until the Supreme Court relaxes the principle that under the HRA the domestic courts should mirror the Strasbourg jurisprudence. It will enable the courts to develop autonomous principles from the HRA, which may be important if the right claimed cannot be grounded in Convention case law, if the claimant cannot prove he is a victim as defined by s.7 of the HRA or if the campaign to abolish the HRA gathers greater force.
But there are a number of practical difficulties which limit the impact of common law. First, the identification of common law rights is not straightforward, and may be ultimately, opened ended. Secondly and more importantly, the status of rights in English law is a powerful break on the reach of common law rights.
Identifying common law rights
Common law rights are often labelled as constitutional or fundamental rights. However, in R. v Lord Chancellor Ex p. Lightfoot Laws J emphasised that the law should be astute to confine the concept of constitutional right to that special class of rights which, in truth, everyone living in a democracy under the rule of law ought to enjoy. He equated these constitutional rights with those contained in the European Convention.
Nevertheless, it is difficult to define "constitutional rights", as Lord Rodger demonstrated in Watkins v Home Office, the case where the House of Lords reversed the Court of Appeal’s holding that damages for misfeasance in a public office could be awarded breaching constitutional rights. Lord Rodger said there was no magic to the term "constitutional right" and drew attention to the House of Lords decision in Nairn v University of St Andrews where female graduates of St Andrews and Edinburgh sought a declaration that they were entitled to vote as a "person" under the Representation of the People (Scotland) Act 1868. In Nairn the House of Lords decided that the legislation did not confer a right to vote on women graduates. According to Lord Loreburn LC "it would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process." Similarly, Lord Ashbourne said, "if it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement." Lord Rodger accepted that the phrase constitutional rights "work well enough" for statutory interpretation, but he pointed out that in using the language of "constitutional rights", the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation; and that now that the HRA is in place, such heroic efforts are unnecessary. However, he rejected the concept for the purposes of developing tort law.
It is therefore open to question whether the words "constitutional" or "fundamental" add anything to the search for common law rights. Sometimes it will be possible to search the international human jurisprudence to arrive at a consensus on broad human rights issues, such as the House of Lords achieved in Derbyshire CC v Times Newspapers when deciding whether the right to freedom of expression precluded a public body from brining proceedings for defamation. But this approach ignores the possibility of home grown common law rights, like the constitutional right to a jury trial, as Lord Diplock found in Attorney General v Gourier. I would argue that in the final analysis, the list of common law rights is inherently contestable, which explains why the textbooks give different lists of common law rights.
The status of common law rights
However, the most serious limitation on common law rights is that their precarious status in English law. Rights enacted by the HRA create positive obligations (whether absolute or qualified) with which a public authority must comply under s.6 of the HRA. By contrast, where statute interferes with common law rights, there is a statutory presumption which Lord Hoffmann described in R. v Secretary of State for the Home Department Ex p. Simms :
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The principle of legality does not preclude the possibility that the presumption can be rebutted, as Lord Bingham found in Gillan v Metropolitan Police Commissioner. He decided that the principle of legality did not apply to stop and search powers which the Court of Appeal had described as "extraordinary" and as "sweeping and far beyond anything ever permitted by common law powers"—even if the Terrorism Act infringed a fundamental human right, itself (he said) a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. That approach was, however, rejected when the case came before the ECtHR which held that the powers of authorisation and confirmation as well as those of stop and search under the Terrorism Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse; and were therefore not "in accordance with law" under art.8. Proving the breach of a common law right can also be contentious. For example, in R. (on the application of Gujra) v Crown Prosecution Service the Supreme Court rejected a challenge to the lawfulness of the DPP’s policy when taking over a private prosecution; and disagreed whether the policy breached the principle of legality by interfering with the right of access to the Court.
Human rights are also of course protected under general administrative law principles. Thus, in R. v Ministry of Defence Ex p. Smith, the gays in the military case, the Court of Appeal said that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was Wednesbury reasonable. Nevertheless, the limits of Wednesbury were criticised by the ECtHR in Smith v United Kingdom; the ECtHR held that the threshold for finding the policy irrational was so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights was proportionate.
But there are other profound problems in asserting common law rights in administrative law cases. The application of administrative law principles is often fluid and uncertain, and different outcomes in a case may appear to be equally arguable. The paradigm case of R. v Cambridge Health Authority Ex p. B is illustrative. A 10 years old girl was diagnosed with non-Hodgkins lymphoma and underwent two courses of chemotherapy but relapsed. Her doctors believed that no further treatment could usefully be administered to her, estimating that she had six to eight weeks to live. Her father then obtained an opinion which estimated her chances of recovery at 10 to 20 per cent and sought funding for that treatment. Laws J held that the fundamental right to life was engaged, that it imposed a positive obligation on the health authority to provide treatment and that its reasons for refusing treatment were not justified, taking the view that the responsible authority must do more than toll the bell of tight resources and explain the priorities which lead them to refuse treatment.
Court of Appeal reversed Laws J’s holding. Sir Thomas Bingham MR acknowledged that the life of the young girl dominated consideration of all aspects of the case, but disagreed on the facts when analysing the justification put forward by the health authority. He said that judgments concerning the allocation of budgets were not a matter for the Courts, so it is not a fair criticism that the public body had failed to advance such evidence.
The upshot for the jobbing practitioner is that common law rights will ordinarily have less forensic impact than utilising positive Convention rights under the HRA. Ultimately, the doctrine of parliamentary sovereignty, the principle that rights are residual and the traditional status the common law accords to rights all combine to limit their impact.
The recent revival
It is therefore important to appreciate that some of the recent common law rights cases have unusual features which it is critical to identify.
The two cases on fairness and the obligation to give oral hearings in parole cases, West and Osborn, apply well established administrative law principles which are very different from invoking Convention rights. As Lord Reed emphasised, whether procedural fairness requires an oral hearing is a question the Court, itself, must determine. Fairness is a hard edged legal question and, in effect, public law fairness gives rise to a positive entitlement that the claimant must enjoy, as a specific obligation derived from longstanding and detailed domestic public law tenets.
There are elements of the Guardian News case which are, again, striking. Guardian News concerned the extradition of two British citizens on corruption cases to the United States. Journalists had attended hearings, where counsel referred to documents not read out in detail, including the skeleton arguments, affidavits and witness statements. The District Judge refused to order that the claimants be provided with copies or inspection which was upheld by the Divisional Court, but reversed by the Court of Appeal. The Court of Appeal decided that the requirements of the common law constitutional principle of open justice had to be determined by the Court in the exercise of its inherent jurisdiction, subject to any statutory provision to the contrary. These requirements applied to all tribunals exercising the judicial power of the state, irrespective of whether they were creatures of statute.
As in the fairness cases of West and Osborn, the Court of Appeal in Guardian News decided that application of the common law right in issue, open justice, was a hard edged issue of law—which was a matter for the Court to decide and apply. The Court was the master of its own procedure and therefore required to give effect to the constitutional right of open justice. As a result, the Court of Appeal avoided the need to resolve the question whether art.10 entails a right of access to information—an issue where Strasbourg courts in flux. The same concerns about the weakness of the Strasbourg jurisprudence led the Supreme Court in Kennedy to extend the common law principle of open justice to inquiries where a claim for disclosure was made concerning the Charity Commission’s investigations into George Galloway’s Iraq charities. In A the Supreme Court reiterated the principle that justice was to be administered by the courts in public so as to be open to public scrutiny was an aspect of the rule of law in a democracy, it was a constitutional principle to be found in the common law; and that the freedom of the media to report on court proceedings was inextricably linked to the principle of open justice
It is therefore submitted that West, Osborn, Guardian News, Kennedy and A are very unusual and unrepresentative common law rights cases; and do not reflect the more general principles which limit the effect of common law rights.
Modifying the principle of legality
However, the underlying position would alter if some fundamental underlying principles were modified. In the seven judge court which decided R. (on the application of Jackson) v Attorney General Lords Steyn, Hope and Hale suggested that, because the principle of parliamentary sovereignty is a common law construct, it would be open to the Supreme Court to decline to give effect to legislation abolishing judicial review. Whether the Courts would ever adopt such a radical proposition must be open to question.
An idea with more potential practical impact is the suggestion that the principle of legality could be modified, so that it is interpreted along the lines of s.3 of the HRA. In other words, could the courts adopt a rule of statutory construction that so far as possible, legislation must be interpreted to give effect to common law rights? Such a principle would result in common law rights prevailing- even if it meant that the Court gave a strained (but possible) meaning to the statutory provision in question, despite the fact that interpretation would depart from the unambiguous meaning of legislation, as conventionally construed.
There is no reason in theory, at any rate, which would prevent the courts developing such a principle. But there are formidable obstacles which need to be addressed. First, there may well be no obvious or compelling rationale for this development, beyond the fact that Parliament abolished the HRA. Secondly, the modified principle has no legal pedigree, unlike the long established principle of legality. Thirdly, it is difficult to reconcile the reasoning to justify the modified principle with Brind —where the House of Lords rejected the broad argument that legislation should be interpreted in conformity with the European Convention, but accepted that it might be used to resolve ambiguity or uncertainty in a statutory provision. There are other difficulties of principle to overcome; so that the modification of the principle of legality is not straightforward.
I would argue that weak status the common law accords to rights protection is a fundamental obstacle to their future development. Although some of the recent cases suggest that common law rights must not be overlooked, their general significance should not be overstated.
Helen Fenwick: An appeasement approach in the European Court of Human Rights? - UK Constitutional Law Association, 5 April 2012
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states. Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
British proposals for reform of the Strasbourg Court
This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.
The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.
David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.
Austin v UK and Von Hannover v Germany (No 2)
It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.
The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).
When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).
Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66). On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.
A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).
The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.
The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.
There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders, Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.
If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.
The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at  and ). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.
This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.
The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.
The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?
RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights, John Hendy QC and Michael Ford QC 10th April 2014, Oxford Human Rights Hub
In RMT v United Kingdom the European Court of Human Rights held that the ban on secondary action in the United Kingdom was a justified interference with the right to freedom of association in Article 11 of the ECHR. The RMT contended that its members employed by Hydrex were unable to take effective strike action to maintain their terms of employment owing to the prohibition on secondary action now found in s.224 of TULRCA 1992.
The Court, first, rejected the argument of the government that Article 11 did not apply at all to secondary action, referring to ILO Convention No.87, Article 6 of the European Social Charter and its earlier decision in Demir. Taking secondary action, the Court held, was part of trade union activity covered by Article 11. After deciding, second, that the ban pursued the legitimate aim of seeking to protect the rights and freedoms of others not involved in the dispute, the Court turned to consider the critical issue of whether the ban was justified because necessary in a democratic society.
The Court emphasised that the margin of appreciation was wide in the context of industrial and economic policies of the state. However, it noted factors counting in favour of the RMT. One was the practice across European States, illustrating that the UK was one of a small group of European countries which adopted an outright ban on secondary strikes, at the far end of the spectrum. Another was the repeated criticisms of the UK’s prohibition of sympathy action by the ILO Committee of Experts and by the decisions of the European Committee on Social Rights on the Social Charter. The Court also referred to how a ban on secondary action could in some contexts, such as an out-sourced workforce, severely hamper trade unions’ efforts to protect their members. But having decided that the interference with freedom of association in Hydrex was not especially far-reaching, and in light of the breadth of the margin of appreciation in this area, the Court decided that the cogent arguments adduced by the RMT on trade union solidarity and efficacy were not sufficient to persuade it that the ban was disproportionate.
The case is important for its clear recognition that restrictions on industrial action, including sympathy strikes, are protected by Article 11. It leaves open the possibility that in other circumstances restrictions (including the ban on secondary action) will not be justifiable under Article 11(2). But it also reflects a trend in recent judgments of the Court, exemplified by e.g. the judgment of the Grand Chamber in Sindicatul Pastorul cel Bun v Romania, of affording States a wide margin of appreciation in relation to what the Court views as sensitive matters of social policy.
It is likely that some commentators will conclude that the judgment represents nothing short of an appeasement by the ECtHR of the UK government’s threats to withdraw from European Convention and its repeated attacks on the ECtHR so evident in the UK stance at the 2013 Committee of Ministers’ meeting in Brighton which lead to the Brighton Declaration and the subsequent inclusion of the references to ‘margin of appreciation’ and ‘subsidiarity’ in the Preamble to the Convention. Certainly, parts of the judgment could be seen in that way and there is no doubt that the judges of the ECtHR have been eager to reassure the UK government, British judges and elements of the English media that little or no threat is posed to the autonomy of the British legal system by the ECtHR or the Convention. The official visit by the President and Vice-Presidents of the ECtHR to the British judges last month (with the President giving a lecture at UCL on ‘Wither the Margin of Appreciation?’) and the recent article by the former President (N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human rights”, (2014) EHRLR 116) might be thought to be illustrative of their concern to reassure. The cynical commentator might say that the judgment is a demonstration of that reassurance. Whether the trade union movement in the UK or in Europe will view the Court’s treatment of the right to strike as reassuring is doubtful.
Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? - Carl Gardner, Head of Legal Blog, 11.2.15
In yesterday’s judgment on 1,015 “legacy” applications, the European Court of Human Rights ruled once again that the legislative bar on prisoners’ voting breaches article 3 of the first protocol to the European Convention. That result was predictable given the Court’s case law on votes for prisoners.
But more importantly, the Court awarded none of these successful applicants a penny in damages; and not a penny in costs, either. The Court has drawn a line under its dispute with the UK, and will do nothing further to raise the stakes.
We’ve known for a long time that there were hundreds if not thousands of applications by prisoners, piggy-backing on John Hirst’s successful complaint over ten years ago now. These cases were stayed for a time, following the Greens & MT “pilot judgment” against the UK in 2010, in which the Court said explicitly that UK law must change. But they were later revived, Parliament still not having legislated.
The fact that so many claims have been outstanding led many in the media to speculate about the huge sums we might have to pay, £160 million being mentioned at one stage (and debunked by Adam Wagner at the UK Human Rights Blog). These sums were plucked out of the air, often combined with the factoid that the Court could fine the UK – which it can’t. What it can do is compensate applicants (a very different matter, since it allows for no punitive element) and award them legal costs. I think the figures bandied about may have originated from a fag-packet reckoning by John Hirst himself, though I don’t complain against him: he was campaigning, so it was fair enough to argue about how much this “could” cost.
But the total bill from these 1000+ cases amounts to £0.00. Fears of the fiscal impact of this dispute were exaggerated. George Osborne and the Office for Budget Responsibility need not revise their deficit forecasts.
Yes, some cases remain, including more that relate to European elections and some about the Scottish referendum. But it’s hard to see how prisoners can hope to be awarded damages or costs, even if they win. The same must go for any leftover claims about Westminster Parliament votes.
In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it.
Abu Qatada is abroad; our courts can impose whole-life orders; and Britain’s continuing failure to give prisoners the vote is cost-free. It’s now simply a diplomatic issue for the Council of Europe’s committee of ministers, who must know this is not the worst case of non-implementation, and are unlikely to take drastic action.
The “dialogue” approach pursued by Dominic Grieve when he was Attorney General and supported by an increasing number of our own judges in recent years, has succeeded. British pushback and the 2012 Brighton reforms have changed the weather in Strasbourg, where the Court is showing a new restraint – arguably excessive restraint in some cases, leading to confused rulings like the one about the niqab ban in France. But it’s a restraint that will be welcome in Britain.
What should we make now, then, of Conservative plans to make Strasbourg judgments “merely advisory” or else pull out of the human rights convention entirely? Those plans are yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.