Human rights: A European invasion?

Dr Helen O'Nions considers the impact of the Strasbourg court's judgments on domestic judicial processes and warns that the stage seems set for further conflict

There cannot be a lawyer in the land who is unaware of the uncertainty surrounding human rights legislation in the United Kingdom, following the Conservative manifesto commitment to 'reverse the mission creep' of human rights law by replacing the Human Rights Act 1998 (HRA) with a home-grown British Bill of Rights.

Repeal became a focal point of Conservative policy following a series of rulings from the higher courts which, according to senior Conservatives and most notably the home secretary, have not afforded due deference to parliament (or, perhaps, the executive). For example, many of these cases concern challenges to aspects of the Immigration Rules which have been subject to limited parliamentary scrutiny. The Immigration Act 2014 reduces the number of grounds to appeal against an adverse immigration decision. It also amends existing legislation in an attempt to direct decision makers and the courts on how to interpret the right to family life. It seems likely that the stage is set for further conflict.

Relationship with Europe

The distinction between the HRA and the European Convention on Human Rights (ECHR) appears to have become blurred in the eyes of some senior Conservatives, with the instrumental role of British delegates in drafting the convention seemingly forgotten in an attempt to cast the instrument as another unwanted European import. Thus the reform agenda is to no small extent influenced by discussions over the UK's relationship with Europe, both in terms of the UK's membership of the European Union and its relationship with the Council of Europe.

The Council of Europe has repeatedly warned the British government over its failure to address the blanket ban on prisoner voting, pursuant to the ruling in Hirst v UK (No 2) (2005). Recently, the European Court of Human Rights (ECtHR) noted the continuing violation of article 3 of the first protocol ECHR (the right to fair elections) in Frith and others v UK (2014) and McHugh and others v UK (2015). The Supreme Court has also refused to support the blanket ban (see R (on the application of Chester and McGeogh) v Secretary of State for Justice and Lord President of the Council and others [2013] UKSC 63).

National security cases

For many, the subject of the franchise should be a matter for our elected politicians to determine, having been omitted from the original convention text. National security is another subject where Strasbourg incursion is unwelcome, with both being cited as examples of 'mission creep'. The decision in Othman (Abu Qatada) v UK (2012) demonstrated that the Strasbourg court was prepared to go further than the British courts when examining executive discretion concerning the removal of suspected terrorists. It has long been established that removal should not occur if there are substantial grounds for believing that the person concerned faces a real risk of being subjected to torture, or to inhuman or degrading treatment or punishment, in the receiving country (see Soering v UK (1989)).

The Strasbourg court applied a similar threshold in Othman by ruling that removal should not proceed when there are substantial grounds for believing that it would lead to a flagrant denial of justice (in this case, Othman's fair trial rights). In so doing they departed from a unanimous House of Lords ruling in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 and caused considerable embarrassment to the government. The decision in Othman, widely portrayed as limiting parliamentary sovereignty, has been a catalyst for reformists who advocate withdrawal from the ECHR in addition to repeal of the HRA.

A further catalyst emerges from the development of national security arguments in the domestic courts. Under the common law, judicial interference in national security cases was circumscribed by decisions such as Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 (the GCHQ case) and R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696, which constrained powers of judicial review. The decision of the House of Lords in A (FC) and others v Secretary of State for the Home Department [2004] UKHL 56 (the Belmarsh case) challenged this position. Empowered by section 4 HRA, their Lordships found that legislation providing for the indefinite detention of foreign national terror suspects was incompatible with the right to liberty and the prohibition on discrimination established in the ECHR.

ECtHR intrusion

A dialogue might have emerged from this ruling, as parliament quickly legislated to repeal the offending provision, introducing control orders in the Prevention of Terrorism Act 2005. These, too, faced challenges in the higher courts as the conditions imposed were found to restrict the suspects' right to liberty (see, for example, Secretary of State for the Home Department v AP [2010] UKSC 24) and the use of closed evidence was found to undermine the right to a fair trial (see Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28). Despite these rulings, it is possible that a respectful dialogue between the senior courts and parliament could have been maintained had it not been for the intrusion of the ECtHR, and in particular, the impact of that court's judgments on the domestic judicial process.

The decision in AF directly followed the ECtHR's decision in A and others v UK [2009] ECHR 301, the sequel to the Belmarsh case. The minimum standards of fairness when deciding to indefinitely detain a suspected terrorist were applied by their Lordships in AF to those made the subject of control orders. Put simply, the House of Lords appeared to consider itself bound by the ECtHR ruling despite the wording of section 2 HRA, which requires merely that the domestic court must 'take into account' Strasbourg jurisprudence. Lord Hoffmann disagreed with the Strasbourg decision but felt compelled to follow it as a matter of international law, stating: 'To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the convention.'

The interpretation given to section 2 has led many to suggest a less drastic reform whereby the obligation to 'take into account' moves from a 'must' to a 'may', providing clearer instruction to the domestic courts. Whether this addresses the views of Hoffman LJ as to the binding nature of the UK's international commitments seems doubtful.

Future tensions

The subject is unlikely to disappear from view entirely as there are at least three cases to be heard by the Grand Chamber of the ECtHR over the next year which will test the relationship between Westminster and Strasbourg.

One of these cases concerns the three men jailed for conspiracy to murder due to their involvement in the 21/7 London bomb plot. The allegations centre on the right to a fair trial and the absence of legal advice during 'safety interviews' which were conducted to assess immediate risk to the public.

The second case concerns the fatal police shooting of Jean Charles de Menezes following the London bombings in July 2005. The challenge is based on the right to life in article 2 ECHR and the decision of the Crown Prosecution Service not to prosecute any officer in connection with his death. It is well established that article 2 includes a positive obligation on state parties to provide mechanisms of accountability when a death is caused by agents of the state.

The final case is that of Arthur Hutchinson, who was imprisoned for life for three murders, rape, and burglary in 1984. In Vinter and others v UK (2013), the ECtHR ruled that murderers cannot be sentenced to prison for life without parole as this constitutes inhuman and degrading treatment contrary to article 3. The Court of Appeal clarified the position, ruling that the Strasbourg judgment superseded the existing parole guidance, and therefore a life sentence prisoner could be eligible for review and release in exceptional circumstances.

This position was accepted as compliant with article 3 in a Chamber ruling in 2015, but the case will now be heard by the Grand Chamber. It will be interesting to see how the ruling proceeds given the current demands for reform, particularly as the Vinter ruling has been described as another example of 'mission creep'.

The Grand Chamber's rulings on these cases may well determine the future of the UK's relationship with the Council of Europe. It has been observed that the Strasbourg decision makers are showing greater reluctance to rule against the UK on matters which fall with the margin of appreciation. Nevertheless, the applicability of the margin to articles 2, 3, and 6 is heavily circumscribed. It thus seems unlikely that the rulings will assuage the concerns of those demanding reform. SJ

Photo © AdrianHancu

Dr Helen O'Nions is a senior lecturer at Nottingham Law School