Rights in Britain
In this extract from an article published by the Society of Conservative Lawyers, Alexander Hill-Smith examines the impact in the UK of the European Convention on Human Rights and Fundamental Freedoms.
Note that the P-v-S case was heard in the European Court of Justice (ECJ), which is a wholly separate body to to the ECHR discussed in this paper. The ECJ is part of the European Union, whereas the ECHR is a subsiduary body of the separate Council of Europe.
Britain was the first country to ratify the European Convention on Human Rights and Fundamental Freedoms in March 1951. By 1953, the necessary total of ten states had ratified the Convention. In 1955, the European Commission of Human Rights started work and received its first petitions. The European Court of Human Rights was set up in 1959 when the necessary nine states accepted the authority of the Court as interpreters of the Convention. In 1966, the United Kingdom permitted its citizens a right to petition the Commission directly in connection with any alleged human rights abuse.
The work of the Commission and the Court got off to a slow start. The first case was not heard by the Court until 1961. By 1977, only 17 cases had come before the Court. From the mid 1980s onwards, the number of complaints made to the Commission and the number of cases before the Court has been steadily increasing. There is now a considerable backlog so that it can take as long as 6 years between the time that an individual lodges a complaint with the commission and that complaint being resolved before the Court.
The reason for this rise in the work of the Commission and the Court is partly attributable to the increasing number of states which have signed the Convention. Thirty two European nations have now adopted the Convention, among the most recent being Turkey, Romania, Estonia and Lithuania, and more are set to do so. But there has also been a greater public awareness of the Convention and its consequences which has led to a steady and persistent rise in the number of petitions addressed to the Commission and of cases coming before the Court.
Within Britain the Convention has had an increasing political prominence. This is for two reasons.
From one angle, the Court has in the recent past come to a number of decisions which have been viewed by many people with astonishment and by the Government with dismay. The most notorious of these is the Gibraltar Rock case in which the Court decided that the British Government had infringed the human rights of three IRA terrorists who were shot dead by the SAS during their preparations for a bombing campaign in Gibraltar. This decision by the Court caused a number of people to call for the United Kingdom to renounce the Convention, a call which the Government resisted whilst at the same time condemning the decision reached by the Court.
From another angle, there has been a suggestion that the United Kingdom is not taking human rights sufficiently seriously. There are those who are critical of Britain’s human rights record. Many of these wish to see the European Convention incorporated into domestic law and there have been a number of Human Rights Bills seeking to achieve this.
In fact, the "incorporationists" are not entirely uniform in what they seek to achieve. Some wish for the Convention to become part of our domestic law, capable of being relied upon by citizens directly in national courts and giving the courts power to strike down or disapply legislation which is found by the Judges to be inconsistent with the Convention.
Some wish only for a weaker form of incorporation to require Ministers to take count the requirements of the Convention in exercising any discretion that may be d upon them by statute. In this weaker form of incorporation, if Parliament confers a discretion upon a Minister, say by way of example if Parliament allows the relevant Minister to ban the broadcasting of certain types of subject-matter, the Minister will be required to exercise that discretion in a manner which is consistent with the European Convention (obviously in relation to the example given above, the Minister will have to have particular regard to art 10 of the Convention which protects freedom of speech) . Clearly this weaker form of incorporation operates only upon the executive and is less invasive of parliamentary sovereignty.
The Labour Party has come out in favour of incorporation of the European Convention into our domestic law although it is not clear whether they are strong or weak incorporationists. Whatever their stance, it is highly likely they will try to turn human rights an election issue to their advantage. Most likely they will allege that Britain has neglected human rights and its obligations under the European Convention. It is vital fore to be in a position to meet these charges and to counter-attack.
The vital issues therefore are as follows.
What stance should we be adopting to the European Convention? How is it that a situation such as that in the Gibraltar Rock case was able to occur? Should we be contemplating withdrawal?
How good or bad is Britain’s human rights record? Is it right that Britain has been neglectful of human rights?
Should the European Convention be incorporated upon into domestic law so as to enable British Judges to adjudicate on the European Convention? If so, what form should incorporation take ?
First however something must be said about the workings and content of the European Convention to enable the above questions to be put into context.
The Convention and How it Operates
The European Commission of Human Rights and the European Court of Human Rights are part of the Council of Europe to which 32 states belong. The Commission and the Court are funded directly by the various contracting states. Britain’s contribution last year was the relatively modest £2.25 million.
The European Convention is not one of the treaties that go to make up the European Union; the European Human Rights Commission and Human Rights Court are not institutions of the EU. This point is frequently not understood; part of the reason for the confusion is that the Human Rights Commission and the Human Rights Court are based in Strasbourg as is the European Parliament. Also, there is both a Human Rights Commission and a European Commission and many do not adequately distinguish between the two. In fact the European Union is not a party to the Convention in its own right. The European Court of Justice has recently held that it is not possible for the EU to accede to the Convention without an amending treaty. The Council of Europe and thus the European Convention are separate and independent from the EU.
This not to say that the European Convention is irrelevant to the EU. The European Court of Justice has frequently held that the European Commission must comply with the requirements of the European Convention in its dealings with citizens of the EU. Article F2 of the Treaty of Maastricht says specifically: "The Union shall protect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community Law."
The mistake is to think that the European Convention is the same as the EU. For one thing there are very many states who are parties to the European Convention who are not members of the EU.
How then (briefly) does the European Convention operate in practice?
It has already been noted that the unique feature of the European Convention is that it allows nationals and others a direct right to petition the Human Rights Commission, or Commission for short, if they consider that their human rights have been infringed. It is the task of the Commission to examine these complaints to see if they are admissible. A very large percentage are not admissible in practice.
In order to be admissible the complaint must be directed at a contracting state; complaints against private organisations fall outside the European Convention. Also it is a requirement that the complainant must have exhausted all domestic remedies before petitioning the Commission and must complain within 6 months of the final decision. Also the complaint must fall it least prima facie within the ambit of the European Convention. One noted commentator has suggested that it would be a good thing if people at least read the Convention before submitting their complaint.
Once the Commission have decided that a complaint is admissible the Commission then proceed to investigate the complaint by finding the facts. The Commission has the right to take evidence. In one instance they sent delegates to interview detainees at Greek detention centres in order to investigate allegations of torture. In another instance witnesses were interviewed at a Norwegian military air field. Having established the facts the Commission then prepares a report in which the Commission sets out their findings of fact and their conclusions as to whether or not an infringement has occurred.
If the Commission finds that a complaint is admissible, the Commission then attempts what is referred to in the European Convention as a "friendly settlement" between the individual and the relevant state. In practice this may involve the state paying compensation to the individual. About 15% of admissible petitions are resolved in this manner.
If a friendly settlement is not possible, then the Commission can refer the matter to the European Court of Human Rights for a ruling on the interpretation or application of the European Convention within 3 months of preparing its report. All matters involving an issue of principle will in practice be referred by the Commission to the Court. If the Commission does not refer the matter to the Court, it must instead be referred to the Committee of Ministers who will rule on whether a breach of the Convention has occurred. Both the Court and the Committee of Ministers have the power under the Convention to order payment of compensation and the reimbursement of legal costs to a successful petitioner in an appropriate case.
Every contracting state nominates one Judge to sit in the Court. Judges sit in chambers of 9 to hear cases and are chosen by lot for each individual case. Important cases can be heard by a plenary court consisting of a larger number of Judges (the Gibraltar Rock case was heard by a total of 19 Judges.). The Court gives reasons for its decisions. Dissenting opinions are also allowed.
Of late the Commission and the Court have become victims of their own success. A backlog of cases and six year delays are occurring.
A programme of reform is on hand. New procedures are set out in an intended addition to the European Convention known as Protocol 11. The aim of Protocol 11 is to streamline-procedures and reduce delays. Protocol 11 provides for the merging of the Commission into the Court. Once Protocol 11 has come into force, petitions will no longer go to the Commission as they do now but will go to the Registry of the Court. A judge rapporteur will be appointed who will investigate the admissibility of the complaint and the relevant evidence. Every individual who makes an admissible complaint will now have the right to bring his or her complaint directly to the court rather than going through the Commission as the position is at the moment. Protocol 11 also provides for there to be in effect two tiers of court, a chamber which will hear cases initially and a Grand Chamber consisting of a large number of Judges to whom a limited number of cases may be referred as a form of appeal. Britain has acceded to Protocol 11. Protocol 11 extends the rights of individual complainants because it allows them direct access to the court as of right rather than via the Commission as at present. Protocol 11 is not yet in force because it has not yet been ratified by the required number of contracting parties. It is to be hoped that its implementation will not be too long delayed.
Rights Protected By The Convention
The rights protected by the Convention are for the most part defined in broad and general terms although often subject to qualifications.
To give some examples, article 2 starts off by saying that "everyone’s right to life shall be protected by law."
This is supplemented by article 1 of the Sixth Protocol which says that "the death penalty shall be abolished. No one shall be condemned to such penalty or be executed."
Article 8 says that "everyone has the right to respect for his private and family life, his home and his correspondence."
Article 10 says that "everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."
In no case are these rights enjoyed absolutely without qualification. The type of limitation to which they are subject is often set in very broad terms. Typical is the qualification to Article 8, quoted above, which provides at 8.2 that:
"there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Role of the Court
In interpreting the text of the Convention, the Court has developed a number of jurisprudential principles.
Thus the Court has accepted that there must be given to the actions of a contracting state a certain "margin of appreciation" to act in the manner it thinks best. The concept of the margin of appreciation cannot be stretched too far but it means that the court allows states a certain flexibility in their dealings with individuals. The concept of the margin of appreciation has as its justification the view that the individual nation state is in a better position than an international court to state what moral standards should apply in any particular country. The concept of the margin of appreciation has its critics; one expert described it as "slippery and elusive as an eel".
Conversely and to some extent contrary to the above, the Court will also take into account in deciding whether human rights abuse has occurred any common standards found collectively throughout the contracting states.
The most vital point to be made in relation to the jurisprudence of the court is that the work of the court inevitably comprises the making of value judgements. The judgements of the Court are not really concerned with interpretation. The meaning of the words used is clear enough. The Court is being asked to weigh up a specific factual situation and decide whether the facts fall inside or outside very often a broadly worded exclusions. The phrase "necessary in a democratic society" is frequently used in the Convention. To say whether something is or is not necessary in a democratic society is not a legal question as normally understood in this country; it is in fact a political question. The Court is in effect being asked to decide whether, within the parameters set by the Convention, it approves of certain conduct or not.
The fact that the decisions made by the Court are in truth political is very easily demonstrated by the fact that the court is frequently divided in any particular case on the proper application of the Convention. This can be illustrated by a number of recent decisions to which the UK was a party.
In Costello-Roberts v UK, decided in 1993, the complainant was a school boy who misbehaved and who was disciplined by being hit three times on the buttocks with a gym shoe. The complainant said that he had been subjected to "inhuman or degrading punishment or treatment" contrary to article 3 of the Convention. The Court disagreed by a majority of 5 to 4. It is clear that the outcome depended on the precise composition of the court.
In the Gibraltar Rock case, McCann v UK,. the court found that in circumstances explored later, the UK had infringed the terrorists right to life. The decision however was a close call, the court deciding in favour of the terrorists by the slender margin of 10 to 9.
In Goodwin v UK, decided in 1996, the complainant was a journalist on the Engineer magazine who received information from a secret source in relation to the financial affairs of a company Tetra. Unknown to Mr Goodwin at the time, the source was quoting from a highly confidential document that had been stolen from the company’s possession. Mr Goodwin was ordered by the High Court to reveal the identity of his source and when he refused, he was fined £5000 for contempt of court. He brought a petition under the European Convention on the basis that the court ruling was in breach of article 10 allowing freedom of expression. The Court agreed with Mr Goodwin by a majority of 11 to 7.
These cases are not unusual but typical; it is the norm not the exception to find that the court and the commission are divided, often deeply divided in relation to the proper application of the European Convention. The position is in stark contrast with the higher courts in the United Kingdom where dissenting judgements are the exception not the rule. The reason for the difference lies in the very different nature of the exercise carried out by the Human Rights Court and an appellate court in the United Kingdom.
In every instance the Human Rights Court has to perform an individual balancing exercise weighing up whether the curtailment of the primary right is justified on the facts of the case. This is essentially a subjective, almost a political exercise and is far removed from the type of exercise that an English or Scottish Judge is called upon to perform in the course of administering Scots or English law.
The shadow Lord Chancellor, Lord Irvine of Lairg is surely right when he says in his 1996 article entitled "Judges and Decision-Makers":
"the political and legal choices which import a consideration of fundamental rights protection are among the most difficult and most subjective, and offer immense scope for political and philosophical disagreement."
The fact is that although the Court of Human Rights operates under judicial procedures and gives reasoned judgements, it is applying general principles in a manner that is often unpredictable. It is more akin to a court of conscience than a court of law and its conclusions are necessarily governed by policy and subjective considerations to a much greater extent than is traditionally associated with a court. This is inevitable given the breadth and generality of the terms of the Convention; and it is because the task of interpretation of the Convention is essentially a political one that in the last analysis renders the Convention unsuited for interpretation by domestic courts.
Britain’s Human Rights Record
Some have sought to suggest that Britain’s human rights record is poor and that Britain has not been taking its obligations under the European Convention seriously enough. This is normally put forward as an argument in favour of the incorporation of the European Convention into the domestic law of the United Kingdom. People who put forward this line normally rely upon the fact that the number of Court judgements given against the United Kingdom, at 38, is second only to Italy (at 85).
This argument is totally fallacious. The truth is that Britain’s human rights record is a good one both in terms of the number of rulings that have been given against the UK and in terms of the steps taken by the UK in implementing decisions once an adverse ruling is given.
Looking at the number of rulings obtained against the IUK is highly misleading for a number of reasons.
First the Court only hears cases where an important point of principle is involved or where there is a point of difficulty. Cases where the infringement is plain are either disposed of by means of friendly settlement or are directed to the Committee of Ministers.
Second, looking at the number of adverse court decisions in isolation ignores the fact that Britain has accepted the jurisdiction of the Court for much longer than some other countries; Britain accepted the Court’s authority in 1966 whereas France for example did not accept it until 1981. Moreover relative population sizes should be taken into account. A country with a small population such as Sweden can be expected to have fewer cases than a country with a relatively large population such as Britain.
If a league table is drawn up calculating the number of human rights violations per 100,000 of population per annum, Britain comes out 14th ie there are 13 other Convention countries with a worse human rights record than Britain. These include Austria (at 6th place), France (at 8th place), Italy (at 1st place), Netherlands (at 13th place), Sweden (at 9th place) and Switzerland (at 7th place). Britain’s record is therefore considerably better than that of several countries normally associated in the mind of the public as having a high regard for human rights.
Moreover Britain faces a special human rights problem not faced by most other Convention countries; the acute problems faced by having to deal with terrorism within our own borders. A significant number of the cases coming before the Court have concerned the treatment of terrorists and suspected terrorists. The IRA have not been slow to appreciate the propaganda value associated with a successful appeal to Strasbourg and a number of cases have been brought, some successful, in which the government’s security arrangements have been challenged before the Court. The troubles in Northern Ireland do not in themselves justify an infringement of the Convention but the measures required to combat terrorism necessarily give rise to difficult judgements between the suspect’s human rights on the one hand and the urgent need to apprehend and successfully prosecute terrorists for the safety and security of the public on the other. The troubles in Northern Ireland mean that in many instances Britain has found itself at the leading edge of human rights law.
The Human Rights Court has fairly recognised that the troubles in Northern Ireland have placed the Government in a difficult position in carrying out the balancing exercise between the requirements of public safety and the need to safeguard the rights of actual and suspected terrorists. In the light of this special difficulty faced by the United Kingdom, our human rights record becomes even more creditable.
Moreover in those instances where the Court has found against the United Kingdom, this country has taken effective steps to remedy the situation. This country can be proud of its record in this respect. The Interceptions of Communications Act 1985, the Access to Health Records Act 1990, section 2 Contempt of Court Act 1981 were all introduced in response to adverse rulings from the Human Rights Court. How much better it is for Parliament to take proper and considered measures to remedy the situation than for domestic courts to try to rectify the position on a case by case basis.
