The policy statement (available on the BBC) includes some sensible opening comments recognising the important role of the European Convention on Human Rights. It then goes on to make numerous vague, tendentious or misleading statements in its ‘Case for Change’.
According to the paper
“The European Court of Human Rights has developed ‘mission creep’. Strasbourg adopts a principle of interpretation that regards the Convention as a ‘living instrument’. ”
The paper gives as examples the case law on the rights of prisoners to vote and the rights of prisoners to have access in certain circumstances to reproductive technology, and the case law on life sentences.
The paper notes that none of these would have been envisaged in 1950. This is no doubt true, but what of it? It seems likely that the drafters would have had no problem with anti-homosexuality laws for instance, but does the Conservative Party seriously contend that the European Court of Human Rights is wrong to uphold gay and lesbian rights, wrong to criticise laws penalising sex between two men (eg Dudgeon v UK), wrong to insist that sexual orientation discrimination is unlawful (EB v France)? The ability to interpret the document as a living instrument is critical to making the Convention a relevant text in the 21st century.
The policy paper says that the franchise was not included in the Convention. Again it is true that the relevant provision (Article 3 of Protocol One) is worded in an unusual way and does not explicitly protect the right to vote. The European Court of Human Rights has interpreted it to include the right to vote (and to run for election); this has enabled it say that persons should not be denied the right to vote automatically because they are under guardianship (Alajo Kiss v Hungary) and to say that effectively excluding people from voting on racial grounds breaches the Convention (Aziz v Cyprus); it has also upheld the right of Gibraltarians to vote in European Parliament elections (Matthews v UK). What sort of human rights paper would contend these decisions were wrong – but that is the implication of the Conservative Paper.
The policy paper contains many vague statements.
“We also believe that in many areas the interpretation given to Convention rights has not struck the appropriate balance between individual rights and responsibilities to others.” “a 2007 ruling by the Court that required the UK Government to allow many more prisoners the right to go through artificial insemination with their partners,”
Both these phrases use the vague term “Many” – well how many, which cases and what was the reasoning in them?
The policy paper is also fundamentally misleading in its constant focus on prisoners. To be clear – human rights law must protect the rights of everyone including the most unpopular. But it must protect the rights of everyone. The Conservative Paper, by focusing on cases involving convicted criminals, and other unpopular groups simply ignores the cases where Strasbourg has upheld the rights of others:
- Beating children with a cane is a breach of Article 3 (A v UK, 1998)
- Mishandling decisions about placing a child in foster care violates Article 8 (AD v UK 2010)
- Failure to protect children from serious neglect breaches Article 3 (Z v UK)
- Dismissing gay men and lesbians from the military breaches Article 8 (Smith and Grady, Lustig Prean)
- Sex discrimination in relation to widows’ allowance violates Article 14 (Blackgrove v UK 2009)
- Lack of legislation criminalising domestic servitude breaches Article 4 (CN v UK 2012).
- An employee’s right to wear a religious symbol is entitled to respect but has to be balanced against other interests (Eweida and others v UK 2013)
Furthermore the document overlooks the fact that most complaints from the UK are rejected as inadmissible in the Strasbourg Court (See Adam Wagner’s post here); and it ignores prominent cases where the Court has found the UK not to have violated the Convention (Carson v UK on pensions aid to non-residents; Burden and Burden where the Court rejected an argument that siblings should receive the same benefits as civil partners).
Indeed in some cases the Court provides itself to be very and maybe too deferential to state interests. See Helen Fenwick’s post here.
The reference to the franchise question also ignores the detailed and thoughtful report of a Joint Parliamentary Committee on the question.
The Conservative paper contains the following:
“This means problematic Strasbourg jurisprudence is often being applied in UK law. Strasbourg jurisprudence includes the doctrine of ‘proportionality’, and the application of this doctrine has led judges to question whether provisions of legislation and decisions of public authorities are ‘proportionate’ to their objectives, which can amount to an essentially political evaluation of different policy considerations.”
The doctrine of ‘proportionality’ is open to criticism as is any other legal doctrine. But the implication of the passage is that the doctrine is ‘problematic’. This seems to ignore the fact that the proportionality principle is embedded in the text of the Convention (in the guise of ‘necessity’) and also in other human rights instruments like the ICCPR and in prominent national legal traditions, eg Germany, South Africa, Canada. The passage fails to acknowledge that ‘proportionality’ is about allowing public authorities to limit the exercise of individual rights in the public interest.
The Conservative paper goes on to complain about the section 3 Human Rights Act requirement that courts interpret legislation in so far as is possible to be compatible with Convention rights. The paper gives an example of a 2003 case where this was done. The paper does not acknowledge that UK courts had already adopted such an approach to interpretation without the Human Rights Act (eg the Simms case). Furthermore the document fails to explain that Parliament can choose to legislate to change such an interpretation if it uses clear enough language. Nor does the policy paper recognise that the section 3 power has been used to achieve some important progressive advances: eg requiring same-sex couples be treated in the same as heterosexual couples under the Housing Act (Ghaidan v Godin Mendoza).
To return to the policy document:
“Labour’s Human Rights Act goes far beyond the UK’s obligations under the Convention. Whilst the Convention imposes on states the requirement to secure the rights and freedoms in the convention for its citizens, it does not mandate any particular legal mechanism for doing so. It does not require the direct incorporation given effect by the Human Rights Act, nor does it require the jurisprudence of the Strasbourg Court to be directly binding on domestic courts.”
This is true, this is not a requirement. However most if not all states have incorporated the ECHR though in some way. The UK was one of the last (though not as late as Ireland which only provided for incorporation in 2003). The policy paper is misleading in referring to Strasbourg jurisprudence being ‘directly binding’ on domestic courts. The HRA provides only that the domestic courts may take the Strasbourg case law into account. This indeed the UK courts did even before the Human Rights Act. It is something which courts throughout Europe do to a greater or lesser extent.
“The German Constitutional Court for example ruled that if there is a conflict between the German Basic Law and the ECHR, then the Basic Law prevails over the Convention. The Human Rights Act provides no such domestic protection in the UK. ”
The same is also true in Ireland; but it is a baffling non sequitur. There is no codified Constitution ( Basic Law =Grundgesetz or Bunreacht)) with a Bill of Rights in the UK – so what is the point of this comment? The more one reflects on it the more baffling it becomes.: after all, a sufficiently explicitly worded Act of Parliament can always limit a Convention right or amend the Human Rights Act itself. The Human Rights Act is one of the most important constitutional statutes of the last 50 years, but it is carefully designed to retain parliamentary sovereignty provided Parliament acts by adopting clear explicit legislation.
These are just some brief thoughts on the ‘Case for Change’. Others have also offered very useful initial responses:
Anthony Fairclough: http://ukscblog.com/conservative-human-rights-supreme-court/
And also worth rereading: