The Rt. Hon. Lord Carnwath of Notting Hill
Former Justice of the UK Supreme Court and a Yorke Distinguished Visiting Fellow at the University of Cambridge
Looking back on my career as a lawyer over more than 50 years, I cannot remember a time when the place of the Convention in our law has not been a subject of active debate. The 1970s and 1980s were a lively time for the development of administrative law. But judicial activism in the development of the common law was not matched by any enthusiasm for the Convention. The more adventurous advocates tried to weave the Convention into their arguments, but usually without much success. Even so progressive a judge as Lord Denning (writing in 1982) said of the Strasbourg court: “let us not be bound by the decisions of judges who do not know our way of life – nor anything of the common law”.[1]
I have observed in a recent lecture (2020)[2]:
“In retrospect, there was a missed opportunity. Lord Denning, of course, played a leading role in the rapid development of judicial review in the 1970s and 80s. Had the Convention on Human Rights been part of our law, it would have been integral to that developing jurisprudence, at a time when the principles of the Strasbourg court were themselves at a formative stage. The merger would have created much less of a shock then than it did in 2000 when the Human Rights Act 1998 attempted to make up for 30 lost years. By then, a substantial body of Strasbourg jurisprudence had been developed without any significant input from the higher UK courts. The result unfortunately has been continuing suspicion of the Convention and of the Strasbourg Court.”
In those early days the Strasbourg court was of little practical significance. The UK’s acceptance of its jurisdiction in 1966 went almost unnoticed. It was not until the later 1970s and 1980s that the caselaw of the court had expanded sufficiently to have a real influence. But when cases from this country did begin to reach Strasbourg they showed that there were many gaps in the protection given by our own laws.
An illuminating reflection on the beneficial influence of Strasbourg in that period can be found in a lecture by Lord Simon Brown, drawing on his experiences of appearing before the court for the UK government as Treasury Junior, and later as a judge at all levels.[3] As he says modestly of his record as advocate:
“My overall record before the Court was, I think, played twelve, won one, drew one, lost ten… Mostly the cases were about prisoners’ rights, or immigrants’ rights or rights of mental health patients or other disadvantaged minorities – and the plain fact is that, in those pre-HRA days, the Convention and the Strasbourg rulings striking down various of our antiquated laws embodying old-fashioned and illiberal attitudes had an altogether healthy impact on the UK’s domestic life and practices. In those days, indeed, the Government was in fact on occasion quite happy to lose its cases…”
He mentions for example Silver v UK[4] in which the applicants complained that the prison authorities exercised excessive control over their mail, reading both the correspondence sent to them and their own letters out, even letters to lawyers. The Court found violations both of article 6 and of article 8. This enabled the Home Office, which was seeking to liberalise prison practices, to overcome the opposition of the prison officer’s unions.[5] Another important case mentioned from his time as a judge in 1995 was ex p Smith in which in his judgment at first instance he accurately predicted that then UK’s policy of dismissing from the armed services anyone of homosexual orientation would not survive scrutiny in Strasbourg.[6]
At the time of the 1998 Act I was a judge of the administrative court, and Chairman of the Law Commission, where we carried out a special study of the issue of damages under the Act. In both capacities I strongly supported the incorporation of the Convention in some form. I found it unnatural and deeply frustrating that we were subject to a system of laws for the protection of basic rights under European law, to which we were unable to give direct effect in our own courts. The Convention also offered a logical structure within which to develop and apply the somewhat amorphous protections given by our own laws, with the support of a substantial body of authoritative jurisprudence from the Strasbourg court. That positive feeling was reinforced by my experience of sitting as an adhoc judge in the Strasbourg court. I was highly impressed by the quality of the judges, coming from widely differing legal systems, but able to find common ground in the basic rights enshrined in the Convention.
I welcomed the 1998 Act as a simple and elegant way of consolidating those rights within our own law, while respecting the key principle of Parliamentary Sovereignty. Since then, my own experience as a judge in the higher courts, and as Senior President of Tribunals, is that, with a few exceptions mainly in the field of immigration (to which I will come), we have been able to establish a generally acceptable balance between the protected rights and executive discretion. the court has reaffirmed in emphatic terms the need for restraint when considering issues of proportionality, in contexts such as social security:
“The answer to such a question can only be determined, in a Parliamentary democracy, through a political process which can take account of the values and views of all sections of society. Democratically elected institutions are in a far better position than the courts to reflect a collective sense of what is fair and affordable, or of where the balance of fairness lies.”[7]
Since 1998 the debate about the Convention and its implementation by the Strasbourg court has continued. There have been a number of political initiatives to encourage a less interventionist approach by the court. The UK has led the way in securing agreement from other Member States to such reforms, notably in the Brighton Declaration of April 2012, which proposed increased emphasis on the principles of subsidiarity and the margin of appreciation. This proposal was given legal effect in Protocol No.15 to the Convention, which came into force on 1 August 2021 following ratification by all 47 States Parties to the Convention.[8]
In the same vein, the Copenhagen Declaration of 2018 affirmed “the central importance of dialogue, both judicial and political, between the states and the ECtHR to the effective operation of the Convention”. It called for –
“…a constructive and continuous dialogue between the States Parties and the Court on their respective roles in the implementation and development of the Convention system, including the Court’s development of the rights and obligations set out in the Convention…”[9]
The practical effect of these recent developments, in legal or political terms, has yet to be fully realised.
At domestic level, there have been various calls for reform or replacement of the HRA itself, and a number of influential studies, including a special Commission in 2011-2, established by the Coalition government.[10] The 2015 Conservative Manifesto included a specific commitment to a new Bill of Rights, but that was overtaken by the political upheavals resulting from the EU referendum.
The 2015 proposal for a new Bill of Rights was not repeated in the 2019 Manifesto, which simply referred to “updating” the Human Rights Act. That was followed in December 2020 by the establishment of an expert panel under Sir Peter (formerly Lord Justice) Gross by the then Lord Chancellor, Robert Buckland. As they recorded, it was a “fixed premise… that the UK is committed to remaining a party to the European Convention on Human Rights”.[11] Their terms of reference did not include the possibility of replacing the HRA. They were asked to consider two main themes: (i) The relationship between domestic courts and the European Court of Human Rights; and (ii) the impact of the HRA on the relationship between the judiciary, the executive and the legislature. The panel noted that, although not within its terms of reference, it had received some submissions proposing a new Bill of Rights or outright repeal, commenting:
“IHRAR was provided with no evidence to show any depth of support for either proposal. On the contrary, there was an overwhelming body of support for retaining the HRA…”[12]
The report (submitted in October, and published in December 2021) is a thorough and painstaking review of the operation of the HRA in the domestic courts, and brings together a wealth of valuable material and insights. It reads generally as an endorsement of the present arrangements, with very limited proposals for significant change.
An important recommendation is for an effective programme of “civic and constitutional education” on human rights and individual responsibilities (cap 1):
“We are in little doubt that there is much room for increasing understanding of the UK’s constitution, and particularly, of the HRA, of the Convention and the ECtHR (not least… that they originate from international obligations that pre-date and are entirely distinct from the UK’s former membership of the European Union), and the role of the Judiciary more generally.” (para 53)
No less significant is the emphasis on the continuing development of “judicial dialogue” with Europe (cap 4). A very useful part of the report is the detailed and very revealing account it gives of such a dialogue over recent years, and of the respect shown by the Strasbourg court for the judgments of the UK courts. One striking example, mentioned at meeting of the panel with judges of the Strasbourg court [13], was a case from Denmark, relating to the issue of preventive detention under article 5,[14] in which the Grand Chamber referred to the “sophisticated analysis” of the Strasbourg case-law by the UK Supreme Court [15], to support a review of its own earlier decisions. The judges at that meeting also referred to the value attached to the UK interventions in cases involving other countries, particularly in Grand Chamber cases, where the Court was dealing with major issues of principle.
This discussion ties in with a comment made by Lady Hale in her recent memoirs:
“Because the rights protected by the European Convention are now also protected by UK law, we can consider whether they have been breached in the same way as the Strasbourg court would do. We are talking the same language. That is why the UK has lost far fewer cases in Strasbourg since the Act came into force than it did beforehand.”[16]
This passage was quoted recently with approval by Judge Spano, President of the Strasbourg Court.[17] It is clearly the view of the Strasbourg judges, and to my mind a strong argument for retaining the language of the Convention in our own law, that it not only reduces the number of successful challenges in Strasbourg, but also enables us more effectively to influence the development of their jurisprudence.
The Gross panel made two more substantive proposals: first, for amendment of section 2 to give more priority to UK statutes and the common law (cap 2); and, secondly, for the institution of exchanges with the Council of Europe and the Strasbourg court to address problems created by the extended extra-territorial and temporal scope of the HRA, resulting from decisions of the Strasbourg and domestic courts [18] (cap 8). I entirely endorse the latter proposal, which was also picked up by the government response, but in the interests of time I will not discuss it in this lecture. I have more difficulty with the former, to which I will return shortly.
In December 2021, along with the Gross report, the Ministry of Justice published a consultation paper under the title “Human Rights Act Reform: A Modern Bill Of Rights” (CP 588). In the meantime, in September, Robert Buckland had been replaced as Lord Chancellor by Dominic Raab. This change at the top seems to have resulted in a marked shift of direction.
The main feature of the new paper is a radical proposal to revise and replace the Human Rights Act 1998 with a new British Bill of Rights. The new Bill, it was said would remain faithful to the “basic principles of human rights” in the European Convention, to which we would remain subject. But it would reverse “the mission creep” that had meant human rights law being used “for more and more purposes, and often with little regard for the rights of wider society”; it would act as “a check on the expansion and inflation of rights without democratic oversight and consent, and will provide greater legal certainty”.[19] Thus, it was said:
“The rights as set out in Schedule 1 to the Human Rights Act will remain. We regard the Convention as offering a common-sense list of rights. The key problems have arisen from the way in which those rights have been applied in practice, at both the Strasbourg and domestic levels. These proposals will not, therefore, create any fundamental conflict with the Convention, nor necessitate our withdrawal…” (paras 183-5)
The new Bill of Rights would make clear that the UK Supreme Court is “the ultimate judicial arbiter of our laws in the implementation of human rights”. This, it is said, is because:
“… the domestic courts are better placed than international courts to determine our laws, including relating to the training, calibre, experience, outlook and legitimacy of our senior judiciary. Equally, the UK’s own constitutional history and law can be best understood and given effect by the UK’s own courts.” (para 200)
More controversially, the new Bill would provide in terms (by a suggested replacement for section 2 of the HRA[20]) that “the courts are not required to follow or apply any judgment or decision of the European Court of Human Rights”, that the meaning of a right in the Bill of Rights “is not necessarily the same as the meaning of a corresponding right in the European Convention on Human Rights”, and that the courts “may have regard to relevant judgments from other countries and international courts outside the UK.”
I say at once that, with or without a new Bill, I find it impossible to understand how the suggested replacement of section 2 would advance the government’s stated objectives. Section 2 as it stands simply requires the court to take account of judgments of the Strasbourg court. The domestic courts have interpreted that it a practical way, so that they will normally follow a clear and constant line of decisions, provided that its effect is “not inconsistent with some fundamental substantive or procedural aspect of our law”, and its reasoning “does not appear to overlook or misunderstand some argument or point of principle”.[21] That approach seems to me an entirely logical reflection of the status of the Strasbourg court, as the final arbiter of the meaning of the Convention, to which the Act gives effect, while recognising that not all its decisions have the same weight, and also the margin of appreciation allowed to the member states. So long as we remain parties to the Convention, and subject to the Strasbourg court, as is intended under the current proposals, the same logic must surely apply.
The Gross panel thought that more weight should be given in section 2 to the assertion of common law rights – the “rights priority question” as they put it. This was seen as helping to counter “a lack of ownership of rights”, and “the notion that the HRA is some alien imposition on UK law”.[22] Parties it was said had “defaulted to reliance on the HRA and Convention rights” rather than “as they ought to have done, looked first to see if a specific domestic statute or the common law provided an answer to the alleged rights infringement”. They found support in some recent statements in the Supreme Court by Lord Mance in Kennedy v Charity Commission[23] where he said:
“[46] … [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[when] 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.” [24]
They propose an amendment to section 2 to “clarify the priority of rights protection” by giving statutory effect to that approach. The suggested wording is:
“A court or tribunal determining a question which has arisen in connection with a Convention right must first apply relevant UK statutory provisions, common law and UK case law generally and then, if proceeding to consider the interpretation of a Convention right, must take into account … [as per the original text of section 2(1)].”
I regret that this is one proposal of the Gross review that I am unable to support. To my mind a great strength of the HRA is that it confers the rights under the Convention in clear and unqualified form. In principle, anyone who falls within the wording of a Convention right should be allowed to assert that right, without waiting for the court to search for some common law equivalent. I do not read Lord Mance as having said anything different.
Having myself dissented in the Kennedy case, I may be forgiven for not regarding it as an entirely persuasive precedent, but rather, if anything, as an illustration of the risks. It concerned a request by a journalist for information held by the Charity Commission in connection with a statutory inquiry. The request was first made in 2007, relying (inter alia) on article 10 of the Convention. It was not until the case reached the Supreme Court some six years later that it was suggested for the first time (by the court rather than the either of the parties) that he could and should have relied on a common law right, which no-one had hitherto noticed.
The proposed replacement of section 2 in the consultation paper compounds the problem. The court is invited in effect to set aside the jurisprudence developed over the years since the HRA came into effect as to the meaning of the various rights, and to start again. In doing so it is not required to give particular weight to decisions of the Strasbourg court, or even of the UK courts, on the meaning of the Convention rights, but can draw as it thinks fit from the case law of countries round the world and from international law. The court is given no assistance as to which if any it should prefer, or by what criterion. I confess that, as a judge trying to interpret the will of Parliament, I would come close to despair. Nor can I see how offering that degree of choice to the courts is expected to curb the judicial activism of which the paper complains, still less to advance the stated objective of promoting greater certainty. That particular proposal must surely not be allowed to get off the ground.
The CP’s proposed amendments to section 3 are not quite so radical. As it stands, it provides simply that “so far as it is possible to do so”, primary and subordinate legislation must be “read and given effect in a way which is compatible with the Convention rights”. It is proposed that the section either be repealed, or be amended to limit it to cases of actual ambiguity in the legislation. The Gross panel did not think such a change was necessary.[25] They did however recommend the strengthening of Parliament’s role in supervising section 3 decisions, through the Joint Committee on Human Rights[26]. I agree with them on both points.
The reasoning behind the CP proposal appears from a review of some of the cases in which section 3 has been given effect. These it is said have –
“given rise to a significant constitutional shift in the balance between Parliament, the executive and the judiciary – diverting the courts from their normal function in the interpretation of legislation into straightforward judicial amendment.” (para 117)
The cases referred to by the CP do not to my mind support their case for amendment.
I will take one recent example in which I was directly involved: Gilham v Ministry of Justice[27] The CP summarises it thus:
“In 2019 the UK Supreme Court used section 3 to change the scope of employment rights under the Employment Rights Act 1996 by reading ‘worker’ much more widely than its natural meaning to include judicial office holders, to avoid incompatibility with Article 14 read with Article 10.”
I do not with respect find that a very fair reading of the case. The issue in the case was whether a District Judge qualified as a ”‘worker” as defined in the Employment Rights Act 1996 so as to be able to take advantage of the protection given to whistle-blowers, and if not whether this involved discrimination against her in the enjoyment of her right to freedom of expression, under article 14 taken with article 10 of the Convention. We held that it did involve such a breach, but that it could properly be avoided under section 3 by a wider but still possible reading of the definition, without going against the “grain” of the legislation.[28] We bore in mind that the same wider reading had been adopted without problem in the context of EU law; and that there was no evidence that Parliament or the executive had addressed their minds to the exclusion of the judiciary from such protection, nor had any legitimate aim been suggested for such exclusion.
I am unpersuaded that this involved any “constitutional shift”. I agree with the observation of the Gross panel (in answer to the TOR question “whether section 3 has been used to interpret legislation in ways contrary to Parliament’s intention”):
“The enactment of the HRA serves to underline Parliament’s intention that all legislation is to be interpreted, so far as possible, compatibly with Convention rights.”[29]
Our decision in Gilham gave effect to Parliament’s enacted intentions: first, as expressed in the 1996 Act, that workers should have the benefit of whistleblower protection; and secondly, as expressed in the HRA, that categories of worker should not be discriminated against in the exercise of their Convention rights for no reason. The CP does not indicate why the outcome is thought objectionable, nor what purpose would have been served by requiring the parties to incur the expense and delay of a trip to Strasbourg to achieve the same result. I remain unrepentant.
I return to the case for a new Bill of Rights to replace the Convention rights as embodied in the HRA. I say at once that a proposal to replace, in substantially the same language, a code which has been part of our law for more than 20 years requires strong justification. Either it means the same thing, in which case what is the point? Or it does not, in which case we can expect a long learning process through the courts to find out what it does mean.
Chapter 3 of the CP sets out “The case for reforming UK Human Rights Law”. This is an extensive discussion of a mixed selection of cases, European or domestic, which are said to illustrate “the problems which have distorted the proper protection of human rights in the UK, and undermined public confidence”. Four particular problems are highlighted:
“the growth of a ‘rights culture’ that has displaced due focus on personal responsibility and the public interest;
the creation of legal uncertainty, confusion and risk aversion for those delivering public services on the frontline;
public protection put at risk by the exponential expansion of rights; and
public policy priorities and decisions affecting public expenditure shift from Parliament to the courts, creating a democratic deficit.”
I observe another mismatch with the Gross review. The government’s case for reform starts with a substantial criticism of the so-called “living instrument” doctrine, described as “the Strasbourg Court’s concerted attempt to pioneer, expand and innovate human rights law beyond the rights set out in the Convention”.[30] This is illustrated by reference to the jurisprudence. But the scope of Convention rights, as developed by the Strasbourg court was not within the scope of the Gross review. As they explained “… an examination of substantive Convention rights fell outside IHRAR’s scope.”[31] So we do not have the benefit of that panel’s views on the Strasbourg court’s alleged expansion of human rights law, or on what if anything could be done about it in the domestic context. Given the expertise and combined experience of the panel[32], that was surely an opportunity missed.
The challenge for those promoting a new Bill of Rights is not just to point to problems with the existing case-law, but to show why matters would be improved by recasting the same rights in a new Bill. Let me take the example of a case mentioned in the paper, in which I was personally involved in the Supreme Court: the Cheshire West case[33] (para 159). This comes in a section of the Paper under the heading: “Public policy priorities and decision-making affecting public expenditure has shifted from Parliament to the courts, creating a democratic deficit”. There follows a discussion of various cases involving challenges to aspects of the government’s welfare policies, with results going different ways. One is Cheshire West:
“In Cheshire West (and linked cases) the UK Supreme Court considered whether various placements of mentally ill individuals with foster carers or in small homes constituted a deprivation of liberty under Article 5 of the Convention, even though there was no suggestion that the placements were not in the best interests of the individuals or that they would have wanted to live elsewhere. The Court concluded that it would be a breach. The minority of the UK Supreme Court thought that there should not be a ‘universal test’ for the deprivation of liberty…”
The paper quotes a specialist commentator, who observed that the result would be the diversion of “substantial quantities of time, money and energy… from providing care to completing forms and engaging lawyers”, and that it was “time for social policy to be liberated from the distorting influence of human rights law”.
As one of the minority in that case, I have sympathy with those comments. We thought that the majority’s approach went beyond any previous decision of the Strasbourg court, and beyond any ordinary understanding of the words “deprivation of liberty”. But the majority[34] took the view that the meaning of those words “deprived of liberty” must be the same for everyone, regardless of their physical or mental disabilities; as Lady Hale put it in the leading judgment[35] “a gilded cage is still a cage.”
The decision did indeed have dramatic and expensive consequences, of which the court had not been given any adequate fore-warning during the proceedings.[36] It led to a massive and unanticipated increase in cases requiring to be dealt with by local authorities and the courts (from 11,300 in 2013-4 to 113,300 in 2014-5) and, in due course, a Law Commission inquiry followed by legislative change to restore a degree of order.
What the Consultation Paper does not explain is why the position would have been any different under a British Bill of Rights. This after all was not an imposition from Strasbourg but a decision by our own Supreme Court, sitting as a seven-justice court. The difference between the majority and the minority lay, not in any policy disagreement, but in their differing understandings of the meaning of the simple words of article 5 – the right not to be “deprived of one’s liberty”.[37] We are told by the CP that all the Convention rights, including presumably article 5 or its equivalent, would be retained in the Bill. If so, why would the reasoning of those judges, or their interpretation of the critical words, have been any different if those same words had appeared in a British Bill of Rights, rather than in the HRA?
The same problem arises in relation to another concern which runs through the paper, that is the incremental expansion of convention rights to include various “positive obligations”. This, it is said, has created uncertainty as to the scope of the government’s duties, “fettering the way it can make operational decisions, determine policy in the wider public interest, and allocate finite taxpayer’s resources” (para 230).
Reference is made to an example given earlier in the paper (para 134), the decision of the Supreme Court in the case of Rabone,[38] in which it was held that the state –
“had breached the positive obligation to protect life under Article 2 in respect of a voluntary psychiatric patient who died by suicide when on medically approved leave from the hospital, and awarded the applicants damages for the breach…”
The same section gives other examples of the financial and administrative burdens resulting from the positive duties found by the Strasbourg court. One (para 142ff) is the aftermath of the ruling in Osman v UK (2000)[39]on the duty of the police under article 2 to take reasonable steps “to avoid a real and immediate risk to life of which they have or ought to have knowledge”. The CP comments that the consequent need to issue “Threat to Life notifications (previously known as ‘Osman warnings’)” has added considerable complexity and expense to ongoing policing operations”. We are told that “In 2019, the four biggest police forces in England issued between them 770 Threat to Life notifications, with these notifications having a considerable impact on police resource”.
I have some sympathy with these concerns. It is fair to note however that in the Osman case the court (para 116) emphasised that “bearing in mind the difficulties involved in policing modern societies” the obligations under the Convention “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”. We are not told by the CP what attempts if any have been taken in the intervening twenty years to apply that advice through legislative or administrative measures.
On the other hand I would accept that some of the rights conferred by the Convention have been interpreted by the Strasbourg court so as to impose responsibilities going well beyond those naturally implicit in the original wording. But the CP does not, as I understand it, suggest that this problem would be solved by its proposed Bill of Rights. It simply asks for ideas (para 231). Question 11 asks:
“How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons.”
This reticence is understandable. Positive obligations under article 2 did not start with Rabone. The simple words of article 2 of the Convention (“Everyone’s right to life shall be protected by law”) had been interpreted by previous case-law of the Strasbourg court as imposing on the state not only a negative duty to refrain from taking life, but also positive duties to conduct a proper investigation into deaths for which the state might be responsible; and to take reasonable steps to protect those within its care from the risk of death or suicide, including for example psychiatric patients detained in a public hospital. In Rabone the Supreme Court did no more than hold that the latter “operational duty” should logically apply to voluntary patients. as well as those forcibly detained.
The CP does not explain why it is thought that the equivalent right to life in the new Bill would be interpreted any differently. The hope may be that a domestic court, freed from the need to comply with Strasbourg, would develop its own more limited interpretation. But there is no certainty that this would happen, and it could take a long and expensive journey to the Supreme Court to find out. Even then, it would leave open the prospect of a later adverse ruling in Strasbourg.
There is a suggestion that the answer may lie in legislative guidance. In chapter 3, it is said that the account of the case-law –
“… demonstrates the ebb and flow of case law, between more and less activist approaches to judicial legislation on human rights grounds, and reinforces the case for reform so that Parliament can clarify and codify the appropriate test in law.” (para 158)
So the intention may be that these problems would be averted in the future by statutory formulation of “appropriate tests”. But if so, the paper does not tell us how that would be done.
If this is indeed the intention, it is a pity that more thought was not given to evaluating the success or otherwise of past attempts to guide the courts in the application of the Convention. A notable example, highlighted by the CP (p 37), was the Immigration Act 2014, which was designed to “strengthen the public interest in the deportation of FNOs” (Foreign National Offenders).
The authors of the CP might usefully have taken account of judicial criticisms of the drafting of the 2014 Act and its predecessors. In my 2020 lecture. I noted that such few immigration cases as found their way to the Supreme Court did so “as often as not, because of the obscurity or complexity of the underlying rules or policies – ‘an impenetrable jungle’, as it was described in one judgment.[40]” I referred to a recent judgment of my own in the Supreme Court (agreed by the other justices)[41] in which I suggested that these problems had to some extent been compounded by the drafting of the 2014 Act amendments; as I said:
“It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges.”
Nor does it help that the CP misrepresents some of the tribunal decisions. The CP in effect criticises the judges for using their remaining discretion to “dilute” the impact of the Act as intended by Parliament. This is illustrated, for example, by reference to a recent Upper Tribunal decision, AD(Turkey)[42] which is summarised:
“In 2018, a Turkish national was convicted of an offence of grievous bodily harm and sentenced to 54 months’ imprisonment. In September 2019, the First Tier Tribunal allowed his appeal against deportation, on human rights grounds. After protracted litigation, relying on his period of lawful residence and marriage to a UK national, the Upper Tribunal allowed the appeal on Article 8 Convention grounds.”
This brief summary seems to me a travesty of the careful reasoning of the experienced Upper Tribunal judge. That reads as an entirely faithful application of the complex statutory formulation of “exceptions” to the normal presumption that deportation is in the public interest (s117(4)-6). Duly applying the formula appropriate to an offender sentenced to more than 4 years imprisonment, the judge held not only (exception 1) that to require his British wife of some 30 years who had no previous connection with Turkey to return there with him would be “unduly harsh” to her, and (exception 2) that there were further “very compelling circumstances”, notably in his relationship with his adult son, who suffered from “serious long term Crohn’s disease” and for whom the father was “uniquely able” to provide support. As the judge said this was one of those “rare and exceptional cases” where the appellant was able to show a disproportionate interference with his article 8 rights. If the authors of the consultation paper thought that it was a misapplication of the statute, it would have been helpful to know why. Rather it illustrates the very challenging task facing the specialist judges of that tribunal, on a daily basis, of balancing public policy with human realities.
From my own experience, I have no doubt that judges at all levels would have strongly welcomed clear and consistent statutory guidance as to the approach to be taken to issues of proportionality in the politically sensitive context of immigration or deportation. Unfortunately experience shows that clear guidance may not be easy to achieve. This was another issue on which the views of the expert Gross panel might have been particularly valuable, had they been asked to consider it.
Conclusion
I have found my attempts to grapple with the Gross review and the subsequent CP a frustrating experience. As I have indicated, I have sympathy with some of the concerns expressed in the CP, particularly as to the effect of the “positive” duties resulting from the wider interpretation of the Act. I would have welcomed the views of the Gross panel on those issues. I would have particularly welcomed their views as to how far the difficulties could be addressed by legislative guidance, as is hinted at by the CP. Unfortunately, as I have noted, there is a serious mismatch between the two exercises. They are almost like ships that pass in the night. The Gross panel were not asked to consider the possibility of a new Bill of Rights, which is central to the CP. Nor were they asked to consider the problems said by the CP to be created by the extensive interpretation of the Convention by the Strasbourg court, which are central to the justification for the CP proposals.
My own experience of the Convention and the HRA, as advocate and judge, has been generally positive. On the whole I regard the Convention and the Strasbourg court as a success story. I find it a matter of pride that it was originally a British-led project, initiated at a time when the recognition of any sort of human rights across much of Europe was at best a distant dream. That system is now embedded in the law of 47 countries, supervised by a central court in which all participate.
I am afraid I have to disagree with my former colleague, Lord Sumption, who has described the aspiration of spreading human rights in this way as “a noble but unrealistic ambition”.[43] Of course, as he rightly says, the historical experience of the forty-seven countries of the Council of Europe is extremely varied. He suggests that –
“… the Convention has had most influence in the countries which are least in need of an international system of rights protection, and very little influence on those which routinely disregard human rights”.
That bleak view is not, I think, borne out by the Council of Europe’s own review of the impact of the Convention in the 47 member states.[44] But in any event it looks only at the extremes. It says nothing about the enormous contribution which has been made to the development and application of human rights over the continent as a whole. The basic rights recognised by the Convention should be common to all. Of course there are problems in putting that ideal into practice. But that is no reason for abandoning the project. On the contrary, we should be proud as a country of the part we have played, and do everything in our power to take it forward.
As the CP rightly asserts (para 63ff), the UK not only initiated the Convention project, but has also been at the forefront in recent years of attempts to improve it. In particular, the reforms now embodied in Protocol No.15 to the Convention, which came into force last August, were “inspired by and negotiated under the UK’s stewardship”. Those reforms are said by the CP to “create space for State Parties to assert the margin of appreciation over matters which, particularly in a mature liberal democracy, should be left to national courts and elected legislatures”, and to provide “an opportunity to avail ourselves of this commitment to an increased margin of appreciation, and to make sure it is properly adhered to in the future”.
The challenge is how to take this forward. The task must be undertaken in conjunction with the UK courts and tribunals, who have most experience of operating the Convention in practice, but also in co-operation with our political and judicial colleagues in Europe. It is a great pity that this issue was not put to the Gross panel, whose combined experience would have been well fitted to the task. The Law Commission might be asked to help on the scope for legislative intervention. Whatever the answer, I am wholly unpersuaded that the establishment of a new UK Bill of Rights, to be administered by the UK courts, but parallel to the still-binding Convention administered by the Strasbourg court, is going to assist the process.
[1] Lord Denning, What’s next in the law? (1982) p 292
[2]Where next for judicial review? Some lessons from 8 years in the Supreme Court Judicial Review Volume 25, 2020 – Issue 4 p 321
[3] Strasbourg Lecture (2012) Strasbourg then and now – a wander down memory lane and other thoughts. Appendix to Simon Brown Playing Off The Roof & Other Stories: A patchwork of memories Feb. 2020
[4] [1983] ECHR 5
[5] Another example is Malone v UK [1984] ECHR 10, in which the Court condemned the UK’s long-standing practice of telephone tapping, authorised by the Home Secretary’s warrant with no legislative backing. This led to the Interception of Communications Act 1985”
[6] Smith and Grady v UK [1999] ECHR 180
[7]R(SC, CB, and others) v Secretary of State for Work and Pensions [2021] UKSC 26 para 208, per Lord Reed. See also A and B v Criminal Injuries Compensation Authority [2021] UKSC 27
[8] See MoJ Consultation Paper (CP) para 633
[9] Gross Review Cap 3 para 15
[10] CP para 28ff
[11] Cap 1 para 5
[12] Cap 2 para 19
[13] Cap 4 para 35
[14] S, V and A v Denmark [GC], nos. 35553/12, 22 October 2018
[15] R (Hicks) v The Commissioner of Police for the Metropolis (2017) [2017] UKSC 9; [2017] AC 25. The Supreme Court declined to follow a previous decision of the Strasbourg court in Ostendorf v Germany (no. 15598/08, 7 March 2013)
[16] Lady Hale, Spider Woman p 189
[17] Press Conference 26 January 2022 He observed that of the 70,150 cases before the court, 118 cases from the United Kingdom, representing the lowest percentage by reference to population of any of the 47 member states. https://vodmanager.coe.int/cedh/webcast/cedh/2022-01-25-1/en/1
[18] Notably the extension to armed conflict abroad, as a result of the decisions of the Supreme Court in Al-Skeini and others v United Kingdom [2011] 53 EHRR 18; Smith and others v Ministry of Defence [2013] UKSC 41, [2014] AC 52.
[19] Executive Summary para 3
[20] CP appendix 2 Option 1
[21] See Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104, para 48
[22] Cap 1 para 53
[23] [2014] UKSC 20
[24] They also referred to Osborn v Parole Board [2013] UKSC 61 para 57, where Lord Reed observed that the HRA “does not supersede the protection of human rights under the common law or statute… Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.’”
[25] They suggested a more elaborate form of wording to clarify the distinction between what they saw as two rules of interpretation in play: the “normal approach”, including that of interpreting legislation compatibly with Convention right when ambiguous; and “the second, which only applies after it is not possible to interpret legislation compatibly with Convention rights under the first approach”. They accept that this would do no more than express the present position. With respect, I am not personally convinced that any change to the established language is required or useful.
[26] Cap 5 para 202.
[27] Gilham v Ministry of Justice [2019] UKSC 44, [2019] 1 WLR 590
[28] In the leading case, Ghaidan v. Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557, para 33, Lord Nicholls said that the meaning under section 3 “must be compatible with the underlying thrust of the legislation being construed. Words implied must…’go with the grain of the legislation’”.
[29] Cap 5 para 59
[30] CP Para 99ff
[31] Review cap 1 para 5. The only exception, as noted above, was the question raised in the ToR concerning the extra-territorial application or jurisdiction (ETJ) of the HRA.
[32] They included, for example, Sir Stephen Laws, former First Parliamentary Counsel, and Lisa Giovanetti QC, who has represented the government in many human rights cases, particularly in the field of immigration.
[33] P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19, [2014] AC 896
[34] Lord Neuberger, Lady Hale, Lord Kerr and Lord Sumption. In the minority were Lords Clarke, Hodge, and myself.
[35] Agreed by Lord Sumption.
[36] As was noted in a more recent judgment: D (A Child) (Rev2) [2019] UKSC 42, [2019] WLR 5403 para 128
[37] See paras 171, 173
[38] Rabone and another v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72.
[39] (2000) 29EHRR 245
[40] Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (20 November 2013)
[2014] AC 651. See also MM (Lebanon) & Ors, R (on the applications of) v Secretary of State and another [2017] UKSC 10 (22 February 2017) [2017] WLR 771 paras 62ff; Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 (14 June 2017), [2017] 1 WLR 2380 para 84
[41] KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018), [2018] 1 WLR 5273 para 14. Lisa Giovanetti QC, a member of the Gross panel, appeared for the government.
[42] Appeal HU/0512/2019(V)
[43] Foreword by Lord Sumption to How and Why to Amend the Human Rights Act 1998 by Richard Ekins and John Larkin QC: Policy Exchange 2021
[44] See https://www.coe.int/en/web/impact-convention-human-rights/#/
