By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
The Human Rights Act 1998 does not provide a separate list of ‘British’ human rights. Instead, it incorporates Convention rights, found in the European Convention of Human Rights (ECHR) into UK law. One of the justifications for this approach was to ‘bring rights home’. Instead of individuals having to go to Strasbourg – the home of the European Court of Human Rights – to protect their rights, individuals could rely on Convention rights in UK courts.
To achieve the aim of bringing rights home, section 2 of the Human Rights Act 1998 required UK courts to ‘take account’ of decisions of the European Court of Human Rights. The Government is concerned that this has given rise to ‘an over-reliance on Strasbourg case law’ and has created ‘too much uncertainty about how section 2 should be applied in practice’ (see the consultation document, at para 190).
In response, the Government wants to recommend that courts should first consider domestic legislation and the common law when protecting human rights, before then looking to decisions of the European Court of Human Rights. It also wishes to recommend that courts should also look at a broader range of case law that the UK courts can consider when protecting rights, in addition to decisions of the European Court of Human Rights.
A need for clarification?
Since the enactment of the Human Rights Act 1998, there has been a series of cases looking at what it means for the UK courts to ‘take account’ of decisions of the European Court of Human Rights. At first, courts adopted an approach known as the ‘mirror principle’. This meant that UK courts tended to mirror decisions of the Strasbourg Courts. Courts made sure that UK decisions did not go below or beyond the definition of a Convention right by the European Court of Human Rights.
However, in later decisions, the UK courts recognised that they had more flexibility when determining the content of Convention rights. It is possible for UK courts to provide a weaker protection of rights than that found at Strasbourg. However, UK courts tend to do this only when it thinks that a decision of the Strasbourg court misunderstood domestic law, or when the UK courts can point to flaws in the reasoning of the decision of the Strasbourg court. There is also a suggestion that UK courts may not follow a decision of the European Court of Human Rights if this undermines a fundamental principle of the UK constitution – although, to date, this has not been applied by the UK courts.
UK courts may also provide a broader interpretation or a stronger protection of a right than that found at Strasbourg. This may be particularly the case when the European Court of Human Rights has granted a ‘wide margin of appreciation’ when determining the definition of a Convention right. When granting a wide margin of appreciation, the Strasbourg court is recognising that different States may protect rights to a different degree, depending on their particular culture.
For example, different countries may place different values on the right to freedom of expression (protected by Article 10 ECHR) and the right to a private life (protected by Article 8 ECHR) when determining whether a newspaper story has harmed someone’s right to privacy. UK courts, however, are careful to think about whether it is their role, or that of the legislature, to determine whether the UK should go beyond Strasbourg’s definition of a Convention right. Courts are also careful to consider whether developing the content of the right in this manner is in line with, or may contradict, other decisions of the European Court of Human Rights.
One of the possible reforms suggested by the Government is to make it clearer that the meaning of ‘rights’ in its proposed British Bill of Rights is not determined by their meaning in an international treaty and, specifically, that ‘it is not necessary’ to give this provision the ‘same meaning as a corresponding right’ in the ECHR as determined by the Strasbourg Court. Another possible option is to specifically state in legislation that ‘The Supreme Court is the judicial authority with ultimate responsibility for the interpretation of rights and freedoms in this Bill of Rights’ (see the Government’s consultation document, Appendix 2, pages 96-7).
It is hard to predict whether either of these provisions may provide greater clarity. As we saw with regard to the case law interpreting section 2 of the Human Rights Act 1998, the meaning of a statutory provision may be refined over time. When determining how to interpret these new provisions, courts will seek to determine the intention of Parliament, as expressed in the wording of legislation, understood against the background of the aims and purposes of the proposed new Bill of Rights.
It is possible that the UK courts will continue to interpret either of these new provisions in a manner similar to how the courts currently interpret section 2. It is also possible that the domestic courts will read any new provision as requiring it to adopt a different position towards decisions of the Strasbourg court than the one they had adopted when applying section 2. Either way, it may be a while before greater clarity is achieved.
It is also possible that the proposed modifications may undermine legal clarity. This is because the proposed reforms also require courts, first, to give effect to previous determinations of UK courts regarding the interpretation of a human right included in a proposed Bill of Rights. Also, the proposed reforms state that UK courts may have regard to decisions of other common law courts (for example the Canadian Supreme Court), the common law, or even of other judicial authorities applying international law, when they consider it relevant to making their decision when determining the scope of rights found in the proposed Bill of Rights. This may create further legal uncertainty.
The Government is also considering whether UK courts may refer to the travaux préparatoires of the European Convention of Human Rights when determining the scope of human rights. Travaux préparatoires are documents that were used when preparing the content of the European Convention of Human Rights. They are regarded as a good means of determining the intention of the authors as to the meaning of Convention rights.
The reference to these documents to determine rights contrasts with the approach known as a ‘living tree’ approach to interpretation. A ‘living tree’ approach encourages courts to read the text of the Convention whilst recognising that rights may now be defined differently in the light of changes in society. A focus on the ‘travaux préparatoires’ may make it more difficult to interpret rights to adapt to modern circumstances.
The argument in favour of these changes is that it will ensure that UK courts are in charge of determining the content of rights, rather than the Strasbourg court. This may give rise to even more uncertainty. On the one hand, UK courts are being encouraged to look to decisions of other jurisdictions and potentially even other international courts. This may encourage courts to rely on decisions that provide a broader protection of rights than that found at Strasbourg. UK courts, therefore, may be more likely to go beyond Strasbourg case law, particularly when this is in line with the common law or UK legislation. On the other hand, by being asked to take account of the travaux préparatoires, UK courts may be encouraged to provide a weaker protection of rights. This may give rise to yet more legal uncertainty.
A move in the right direction?
Two factors may influence whether you think this is a move in the right direction. First, you may be concerned as to whether decisions determining the content of rights should rest ultimately with the UK courts or with the Strasbourg court. Second, you may be concerned about the definition of human rights and whether the UK should have a stronger or a weaker list of human rights than those currently protected by the ECHR.
Should UK courts have the freedom to not protect rights as strongly as the Strasbourg court? Whilst this may or may not be desirable, we also need to take account of the fact that the UK does not want to withdraw from the ECHR. If UK courts consistently provide a weaker protection of rights, this means more individuals may take their case to Strasbourg. This may undermine the extent to which rights are brought home, as well as potentially giving rise to more adverse decisions by the Strasbourg court against the UK.
Should UK courts have more freedom to protect rights more strongly than found in Strasbourg? This may mean that the UK has a more modern Bill of Rights that provides a stronger protection of rights that reflects current UK values. However, this may modify the current balance of power between courts, Parliament, and the Government when it comes to protecting rights. The Government believes that this balance may be tipped too far in favour of the courts. If this is the case, then encouraging UK courts to provide an even stronger protection of rights, particularly by referring to the common law, decisions of other common law courts, and potentially even international courts, may tip that balance even more in favour of the courts.
At the end of the day, we have to ask ourselves how far we want a modern Bill of Rights that reflects current British values and how far we want this to be provided by the UK courts. We also have to consider how far we think this is currently achieved under the Human Rights Act 1998 and whether changing the current protection of rights may come at too high a cost for legal certainty.