The Problem With Human Rights Law - Civitas

The Problem With Human Rights Law

The Problem WithHuman Rights Law

Is it out of control? Who is responsible? What is the solution?

Michael Arnheim

CIVITAS

First Published March 2015

Copyright © Dr Michael Arnheim 2015

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Contents

Author vi

Introduction 1The Problem 3Case Studies 22Recommendations 35Conclusion 40

Notes 41

vi

Author

Dr Michael Arnheim (or ‘Doctor Mike’, as he is commonlyknown) is a practising London barrister and sometimefellow of St John’s College, Cambridge. He has written 15 published books to date, including The Handbook ofHuman Rights Law, Principles of the Common Law and TheUS Constitution for Dummies.

Michael Arnheim entered Johannesburg’s WitwatersrandUniversity at the age of 16, taking a first class BA inhistory and classics at the age of 19, first class honours at20 and an MA with distinction at the age of 21.

He then went up to St John’s College, Cambridge, on ascholarship. There he was awarded a PhD in record timeand it was published by the Oxford University Press. He was subsequently elected a fellow of St John’s College,where he continued to do research and teach classics,especially ancient history.

At the age of 31 he was appointed a full professor andhead of the department of classics back at his olduniversity in South Africa. After some years in thatposition he returned to Britain, where he was called to theBar by Lincoln’s Inn in 1988 and continues to practise asa London barrister.

Introduction

There is a serious problem with human rights law. In myHandbook of Human Rights Law, originally published in2004, I expressed the view that human rights law hadbeen hijacked by a number of special interest groups,made up notably of convicted killers, terrorist suspects,asylum seekers and illegal immigrants. Before offering asolution to this problem it is necessary to identify itscause. Critics are too quick to blame the European Courtof Human Rights for the expansion of the scope of theconvention rights, when the evidence shows that it isactually the UK domestic courts which are largelyresponsible for this, together with a supine attitude on thepart of successive British governments.

There are two Europes and at least three bills of rights.The European Convention on Human Rights (ECHR) is not directly connected with the European Union (EU)but is a product of a completely different body known asthe Council of Europe, based in Strasbourg. (Strasbourgis itself confusing, because it is also the main seat of the parliament of the European Union, whose court,the European Court of Justice [ECJ], has its seat in Luxembourg!)

The Council of Europe is actually the oldest and largestextant European body, dating from 1949 and boasting nofewer than 47 members right across the continent,including Russia and even Turkey. Yet most people havenever heard of it. It is essentially an umbrella body

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promoting co-operation between its member states,especially in the field of human rights.

The ECHR was drafted under the auspices of theCouncil of Europe in 1950, just five years after the end ofWorld War II. Among its provisions was the establishmentof a European Court of Human Rights (ECtHR) sitting inStrasbourg together with a preliminary tribunal known asthe European Commission of Human Rights.

The UK was a founder member of the Council of Europeand one of the first signatories to the ECHR. This enabledUK residents to take cases to the European Commission ofHuman Rights, provided they had exhausted all domesticremedies first. The Commission acted as a filter. If itdecided that a case was well founded, it would refer thecase to the ECtHR on the applicant’s behalf. In 1998 theprocedure was streamlined by abolishing the Commissionand enabling individuals to take cases directly to theECtHR (still providing they had exhausted all domesticremedies) without the prior consent of their nationalgovernment, which had previously been required.

In 1998 another important development took place asfar as the UK was concerned, when (most but not thewhole of) the ECHR was incorporated into the HumanRights Act 1998 and thereby became part of UK law,which meant that it could be invoked before the UKcourts, which had never been possible before.

THE PROBLEM WITH HUMAN RIGHTS LAW

2

The Problem

There has been growing dissatisfaction with judicialdecisions on human rights issues in certain quarters,which has developed into a clamour for a ‘UK Bill ofRights’. In October 2014 the Conservative Party issued astrategy paper titled ‘Protecting Human Rights in theUK’.1 Under the heading ‘The Case for Change’ we read:‘Over the past 20 years, there have been significantdevelopments which have undermined public confidencein the human rights framework in the UK, and whichmake change necessary today.’

This Conservative paper attaches no blame to theconvention itself, saying: ‘The convention is an entirelysensible statement of the principles which shouldunderpin any modern democratic nation.’ Instead, itlaunches a two-pronged assault, first on the Strasbourgcourt (the ECtHR) and, secondly, on the UK’s HumanRights Act 1998 (HRA), the attack on which is in severalparts. I will look at each of these accusations in turn.

1. The European Court of Human Rights

The ECtHR is blamed for adopting the doctrine orprinciple that the convention is a ‘living instrument’, andfor then using this doctrine ‘to expand convention rightsinto new areas, and certainly beyond what the framers ofthe convention had in mind when they signed up to it’ –

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amounting to ‘mission creep’. The paper adds: ‘There ismounting concern at Strasbourg’s attempts to overruledecisions of our democratically elected parliament andoverturn the UK courts’ careful applications ofconvention rights.’

False premise

There is a serious mistake here. Although Strasbourg isundoubtedly guilty of ‘mission creep’, the UK judgeshave not taken a different line from Strasbourg. Instead,they have religiously followed Strasbourg’s line in almostevery case. In the words of the former lord chancellor andarchitect of the Human Rights Act, Lord Irvine of Lairg,the domestic courts of the UK have proceeded ‘on thefalse premise that they are bound (or as good as bound)to follow any clear decision of the ECtHR which isrelevant to a case before them’.2

I have to say that I am in full agreement with LordIrvine’s analysis, which focuses particularly on HRAsection 2(1)(a), reading: ‘A court or tribunal determining aquestion which has arisen in connection with a conventionright must take into account any – (a) judgment, decision,declaration or advisory opinion of the European Court ofHuman Rights.’ As Lord Irvine points out:

‘Take account of’ is not the same as ‘follow’, ‘giveeffect to’ or ‘be bound by’. Parliament, if it hadwished, could have used any of these formulations. Itdid not. The meaning of the provision is clear. Thejudges are not bound to follow the Strasbourg court:they must decide the case for themselves.

Yet, with very few exceptions, the UK courts haveregarded themselves as being obliged to follow Strasbourg.


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‘Starkest example’

As ‘the starkest example’ of this wrong approach LordIrvine singled out the House of Lords decision in AF vSecretary of State for the Home Department,3 a case aboutcontrol orders issued under the Prevention of TerrorismAct 2005. The appellants contended that their right to a fair hearing under ECHR Article 6 had been violated by the judge’s reliance on secret material not disclosed to the appellants. In Lord Irvine’s words: ‘The Houseunanimously allowed the appeal, and in doing so clearlyproceeded on the premise that it was obliged to do so.’

Lord Hoffmann, who is himself not uncritical of theStrasbourg court, said:

A v United Kingdom requires these appeals to beallowed. I do so with very considerable regret, becauseI think that the decision of the ECtHR was wrong andthat it may well destroy the system of control orderswhich is a significant part of this country’s defencesagainst terrorism. Nevertheless, I think that yourLordships have no choice but to submit. It is true thatsection 2(1)(a) of the Human Rights Act 1998 requiresus only to ‘take into account’ decisions of the ECHR. Asa matter of our domestic law, we could take the decisionin A v United Kingdom into account but neverthelessprefer our own view. But the United Kingdom is boundby the convention, as a matter of international law, toaccept the decisions of the ECtHR on its interpretation.To reject such a decision would almost certainly put thiscountry in breach of the international obligation whichit accepted when it acceded to the convention. I can seeno advantage in your Lordships doing so.

Lord Rodger of Earlsferry made the same point evenmore briefly:

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THE PROBLEM

Even though we are dealing with rights under a United Kingdon statute, in reality, we have nochoice: Argentoratum locutum, iudicium finitum –Strasbourg has spoken, the case is closed.

Besides disagreeing with the sentiment expressed here,I would amend the Latin to read: Argentorato locuto,iudicium finitum.

Lord Irvine’s comment is direct and authoritative:

I beg to differ. Section 2 of the HRA means that thedomestic Court always has a choice. Further, not onlyis the domestic Court entitled to make the choice, itsstatutory duty under s.2 obliges it to confront thequestion whether or not the relevant decision of theECtHR is sound in principle and should be giveneffect domestically. Simply put, the domestic Courtmust decide the case for itself. (Emphasis added)

It is worth remarking that the whole control ordersystem was in fact introduced only because thepreventive detention regime brought in by parliamentafter 9/11 was struck down by the House of Lords (as acourt) in A (FC) v Secretary of State for the Home Department,4

resulting in a situation where there were certain foreignnationals who could neither be prosecuted nor deported,thus forcing the government to resort to control ordersbased to some extent on secret evidence, which requireda derogation from ECHR Article 5 (right to liberty), whichcould be claimed only ‘in time of war or other publicemergency threatening the life of the nation’ (ECHRArticle 15(1)). But the government was thwarted hereonce again. Lord Hoffmann predicted:

This is a nation which has been tested in adversity,which has survived physical destruction andcatastrophic loss of life. I do not underestimate the


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ability of fanatical groups of terrorists to kill anddestroy, but they do not threaten the life of the nation.Whether we would survive Hitler hung in thebalance, but there is no doubt that we shall survive AlQaeda… Terrorist violence, serious as it is, does notthreaten our institutions of government or ourexistence as a civil community. (§96)

This optimistic prognostication raises two questions.First, on what basis did Lord Hoffman come to thisconclusion? But secondly, and more importantly, is thisnot a political question which falls squarely within thedomain of the executive? It should be noted thatStrasbourg had not adjudicated on this question at all.

The government had been pushed from pillar to postand was now in a most invidious position in regard topersons whom the government could neither prosecutenor deport. But why could these people not be deported?Section 3(5)(a) of the Immigration Act 1971 (as amended)provides: ‘A person who is not a British citizen is liable todeportation from the United Kingdom if (a) the Secretaryof State deems his deportation to be conducive to thepublic good.’ This can only be a political question to bedecided by the executive, and not a legal question for the courts.

This takes us back to one of the many perniciousdecisions of the ECtHR, which has been slavishlyfollowed by the UK courts: Chahal v UK,5 which decidedthat it was a violation of ECHR Article 3 to deport aforeign national if there was a real risk that he would besubjected to treatment contrary to ECHR Article 3 at thehands of the receiving state. Is this really what Article 3says? Not at all. Here is what Article 3 says: ‘No one shallbe subjected to torture or to inhuman or degradingtreatment or punishment.’ Subjected to torture etc by

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THE PROBLEM

whom? The whole of the ECHR is addressed to the ‘HighContracting Parties’, ie the states which signed it. So,what Article 3 is saying is that the signatory states mustnot subject anyone to torture etc. Therefore, the UK, as asignatory state, must not torture anybody. But where doesit say that the UK must also be responsible for thetreatment received by someone in another country afterbeing deported from the UK? Nowhere.

This is a huge unwarranted extension of Article 3 by theStrasbourg court – and followed by the UK courts withoutexception. Of course, if a person is deported from onesignatory state to another, then the deportee is protectedfrom torture etc by the obligation of the receiving state underArticle 3. But, if the deportation is to a non-convention state,it is an infringement of the sovereign rights of the deportingstate to make that state responsible for the treatmentaccorded the deportee in the receiving state.

The whole series of cases in which the government wasrepeatedly thwarted in its attempts to keep terrorism atbay was indeed based on Strasbourg jurisprudence – butStrasbourg jurisprudence closely followed and applied bythe domestic courts. The obvious question that arisesfrom the UK domestic courts’ reluctance to depart fromStrasbourg decisions is: Why? It surely cannot be becausethe judges have misunderstood the meaning of thecommon phrase ‘take into account’.

‘With very considerable regret’

Lord Hoffmann’s decision in the AF case to followStrasbourg (taken, in his own words, ‘with veryconsiderable regret’ as he believed it to be wrong anddamaging to the UK’s defence against terrorism) was


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evidently based on ECHR Article 46, providing that thesignatory states ‘undertake to abide by the final judgmentof the Court (of Human Rights) in any case to which theyare a party’. Here again Lord Irvine strikes home:

My own view is that excessive preoccupation with thisconsideration has led the Courts into error. A judge’sconcern for the UK’s foreign policy and its standing ininternational relations can never justify disregarding theclear statutory direction which s.2 of the HRA provides.

The point is that matters of foreign policy are theconcern of the Executive government and not of thecourts, which are primarily bound by domestic law.

Rights v rights

The second reason which appears to make UK domesticcourts follow Strasbourg as closely as they do – andsometimes even to out-Strasbourg Strasbourg – is themistake of failing to recognise that human rights casesconcern human rights on both sides. Cases involvingterrorism or national security, for example, are commonlydescribed by the courts as requiring a balance to be struckbetween human rights and national security, or betweenthe individual right to liberty and the public interest.Putting it like this is misleading. Abstract terms like‘national security’ and ‘the public interest’ tend to pale bycomparison with ‘the rights of the individual’. Yet,‘national security’ and ‘the public interest’ actually referto the human rights of thousands or even millions ofindividuals. Preventing the government from detaining ordeporting potentially dangerous individuals may resultin the violation of the individual rights to liberty or even

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THE PROBLEM

to life of thousands of law-abiding citizens. And thisneeds to be spelt out in each and every relevant case.

‘Political correctness’

A more disquieting reason for the UK domestic courts’tendency to trot along with the Strasbourg line is that this‘politically correct’ approach happens to chime in withthe individual political views of a number of the domesticjudges. The traditional view that judges are politicallyneutral is simply naïve. Referring to public law cases ingeneral, that acute observer of the relationship betweenthe judiciary and the executive, Professor J.A.G. Griffith,remarked: ‘The idea that judges can be politically neutralin such cases has never been true.’6 Judges have politicalviews just like anybody else, which cannot simply be putto one side while they are sitting on the bench. And mosthuman rights cases have a political dimension. All thathas changed over the years is the judges’ predilections.The famous liberal American Supreme Court Justice FelixFrankfurter was a model of judicial restraint, because hebelieved that the judiciary should not interfere withdecisions taken by democratically elected bodies orinstitutions. ‘Political correctness’, however, unfortunatelytends to breed judicial activism, or even judicialsupremacism. An (unintentionally) amusing example ofthis was provided by a staunch academic protagonist ofjudicial activism, Professor Ronald Dworkin, who opined:‘I cannot imagine what argument might be thought toshow that legislative decisions about rights are inherentlymore likely to be right than judicial decisions.’7 Itevidently did not occur to Dworkin that there is a veryobvious argument, namely that, unlike judicial decisions,legislative decisions are democratic.


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More and more English judges are now starting topooh-pooh the age-old British constitutional principle ofthe sovereignty of parliament and the rule that legislationand policy decisions are no-go areas for the courts. EvenLord Sumption, who has the reputation of being aconservative justice, dismissed Lord Diplock’s well-known distinction between politics and law with thedisdainful comment: ‘Like many of Lord Diplock’s moreoracular pronouncements, this is not so much an answeras a restatement of the problem. Where does law end andpolicy begin?’8 In practice the borderline is not as difficultto detect as this seems to imply. And it must also beremembered that a decision on which side of the divide aparticular issue falls is itself legislation, which is forparliament and not for the courts to decide.

2. The Human Rights Act

The HRA is a mixed bag. The Conservative paper iscertainly correct to single out section 3(1) for specialcondemnation. But an even more pernicious section,which has escaped the paper’s notice is section 6(1),which provides: ‘It is unlawful for a public authority toact in a way which is incompatible with a conventionright.’ Section 4(6)(a), on the other hand, providesexpressly that even if a UK law is declared by a court tobe ‘incompatible’ with a particular convention right, that‘does not affect the validity, continuing operation orenforcement of the provision’ in question. And there is of course section 2, which only requires the domesticcourts to take Strasbourg rulings ‘into account’ – though,as we have seen, the UK domestic courts have verylargely chosen to regard themselves as bound byStrasbourg jurisprudence.

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THE PROBLEM

‘Labour’s Human Rights Act undermines the role of theUK courts in deciding human rights issues in this country’

The Conservative paper claims: ‘Section 2 of the HRArequires UK courts to “take into account” rulings of theStrasbourg Court when they are interpreting conventionrights. This means problematic Strasbourg jurisprudenceis often being applied in UK law.’ This misses the pointmade so cogently by Lord Irvine that the UK courts havechosen to follow Strasbourg, which they are not obliged todo. Indeed, it is their duty to depart from Strasbourgjurisprudence when they consider it to be wrong. But theydon’t – except in a very small number of cases, in someof which the domestic courts have actually gone furtherthan Strasbourg in extending the scope of conventionrights! A trawl through human rights cases of recent yearsmakes it clear that the UK courts treat themselves asbound by Strasbourg although they aren’t.

The Conservative paper singles out proportionality forparticular condemnation. Proportionality is indeed aEuropean concept (although, while wrongly attributed toStrasbourg, it actually comes from that other Europeancourt, namely the European Court of Justice, the court ofthe European Union sitting in Luxembourg). But, sosupine has the UK government and parliament becomethat proportionality was even allowed to creep into UKprimary legislation, like, for example, paragraph 9(6) ofSchedule 7 to the Counter-Terrorism Act 2008.Proportionality is now so embedded in English law – bydecisions of the domestic courts – that it would be verydifficult if not impossible to eradicate it.

But what exactly is wrong with the principle ofproportionality? The Conservative paper objects that ‘theapplication of this doctrine has led judges to question


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whether provisions of legislation and decisions of publicauthorities are “proportional” to their objectives, which canamount to an essentially political evaluation of differentpolicy considerations.’ Here the Conservative paper doesindeed have a point, but it is once again misconstrued. Forjudges to make political decisions is a no-no. So whatimpels them to do so? Does the principle of proportionalityconfront them as a ghostly apparition and force them tostray into this forbidden territory? Not exactly. Whenjudges overstep their powers in this way it is they and theyalone who make the decision to do so. And what doesparliament do when this happens? In most cases, nothingat all. Parliament certainly has the right to reverse the effectof a judicial decision by means of legislation, but it has veryrarely done so. What is needed is a pre-emptive remedystopping judges from making decisions which they haveno authority to make in the first place.

‘Labour’s Human Rights Act undermines the sovereigntyof parliament and democratic accountability’

The most pernicious provision of the HRA, which is notmentioned in the Conservative paper, is section 6(1): ‘It isunlawful for a public authority to act in a way which isincompatible with a convention right.’ This evidentlygives this important power to the courts, which enablesthem to declare government acts ‘unlawful’. It isimportant to note that parliament is not regarded as apublic authority for these purposes. So section 6 does notgive any court the right to strike down parliamentarylegislation. Nevertheless, this pernicious section mustcertainly be repealed post haste.

The Conservative paper is clearly right to object to HRAsection 3(1), which provides that: ‘So far as it is possible

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THE PROBLEM

to do so, primary legislation and subordinate legislationmust be read and given effect in a way which iscompatible with the convention rights.’ The Conservativepaper comments:

There are cases in which, due to this rule, UK courtshave gone to artificial lengths to change the meaningof legislation so that it complies with theirinterpretation of convention rights, most oftenfollowing Strasbourg’s interpretation, even if this isinconsistent with parliament’s intention whenenacting the relevant legislation.

But, if a domestic court goes to ‘artificial lengths’ to readdown domestic legislation so as to comply withStrasbourg, who is to blame for that? Once again, this is adecision freely taken by the domestic court concerned.

In order to avoid this situation, what the domestic courtshould do is to avail itself of the machinery of HRAsection 4, which is specifically intended to safeguard thesovereignty of parliament. Section 4 provides that, if acourt ‘is satisfied’ that a piece of legislation isincompatible with a convention right, it may (not must)make a declaration of incompatibility. But, as we haveseen, section 4(6) makes it clear that a declaration ofincompatibility ‘does not affect the validity, continuingoperation or enforcement’ of the legislative provision in question.

‘Labour’s Human Rights Act goes far beyond the UK’sobligations under the convention’

This objection is not at all clear. But the Conservativepaper then homes in on a comparison with Germany:‘The German Constitutional Court for example ruled


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that if there is a conflict between the German Basic Lawand the ECHR, then the Basic Law prevails over theconvention. The Human Rights Act provides no suchdomestic protection in the UK.’ This is only partly correct.The point is that Germany has a written constitution (orBasic Law), which has higher law status. The ECHR hasbeen incorporated into German law, but only as anordinary statute. So, in the event of a conflict, the GermanConstitution trumps the ECHR.

In the UK the position is that no statute is entrenchedor has higher law status. The attempt on the part ofcertain UK judges to suggest that there is a two-tiersystem of statutes and that the ECHR (insofar as it isincorporated into the HRA) has higher law status is justsimply wrong. Such a major decision would requirelegislation, which is entrusted to parliament, not to thecourts. But even parliament could not really make such adecision, because entrenching a particular law or clausewould fly in the face of the fundamental constitutionalprinciple that no parliament can bind its successors – aprinciple which is actually implicit in the principle of thesovereignty of parliament. So the position of the ECHR inthe UK is essentially the same as its position in Germany.In both, the ECHR has the status of an ordinary statute.Once again, therefore, we find that it is the UK courts, notStrasbourg, which must be blamed.

To sum up, therefore, on the points made in theConservative paper:

l The Strasbourg court is indeed guilty of ‘missioncreep’, but the blame for this reaching the UK restssquarely on the shoulders of the UK domesticcourts, who are not only not obliged to followStrasbourg but have a positive duty to depart from

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THE PROBLEM

Strasbourg jurisprudence and follow English lawwhenever there is a clash between the two.

l The HRA does not undermine the role of the UKdomestic courts, which are never obliged to followStrasbourg rulings.

l So far from undermining the sovereignty ofparliament, the HRA actually safeguards it – with theserious exception of section 6(1) and also of section3(1), both of which certainly need to be repealed.

The Conservatives’ plan for change

In view of the Conservative paper’s misdiagnosis of thetrue nature of the problem, its suggested solution isinevitably seriously flawed. I will just look at its mainproposals before setting out my alternative solution. Thepaper says that the planned Conservative reforms willmean that:

l ‘The European Court of Human Rights is no longerbinding over the UK Supreme Court’

The Strasbourg court can’t bind the UK courts evennow. The reason it looks as though it can is becausethe UK courts themselves choose to followStrasbourg rulings (see above). In R (Ullah) v SpecialAdjudicator (2004) UKHL 236, Lord Bingham heldthat no national court should ‘without strong reasondilute or weaken the effect of Strasbourg case law’.This is not in keeping with HRA section 2, whichonly requires the domestic courts to ‘take accountof’ Strasbourg decisions. It is disquieting that Lord Bingham’s dictum is quoted as authoritative


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on the UK Supreme Court’s own website – yet afurther example of the fact that the decision tofollow Strasbourg is one made by the domesticcourts themselves.

l ‘The European Court of Human Rights is no longer able toorder a change in UK law and becomes an advisory body’

This is another product of misunderstanding. In fact,the strict legal position is that the Strasbourg courtcannot order a change in UK law even now. Inpractice, however, a finding by Strasbourg in favourof an applicant has been unnecessarily taken asbinding by the UK domestic courts and hasgenerally been followed by the capitulation of theUK government, which has just meekly applied theStrasbourg ruling.

l ‘There is a proper balance between rights andresponsibilities in UK law’

In fact, ECHR Articles 8, 9, 10 and 11 already containqualifications allowing the convention rights concernedto be subjected to limitations ‘necessary in a democraticsociety’, although Strasbourg has defined ‘necessity’ verynarrowly, requiring ‘a pressing social need’ and proofthat the limitation is ‘proportionate to the legitimate aimpursued’ – which as usual the UK courts have simplyfollowed. Even more important is the neglected point Imade above, which even the Conservative paper fails torecognise, and that is that the balance is not between‘individual rights’ and ‘the public interest’, to which‘responsibilities’ may be added, but between the rightsof one individual and the individual rights of thousandsor even millions of individuals, which is a more accurateway of describing it from a human rights perspective.

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THE PROBLEM

However, adding a list of responsibilities to thelegislation would certainly do no harm.

The Conservative paper goes on to identify ‘two basiclegal facts’ on which its proposals are based:

l There is no formal requirement for our Courts to treat theStrasbourg Court as creating legal precedent for the UK

Here the Conservative paper gets into a muddleagain, by saying: ‘Such a requirement was introducedin the Human Rights Act, and it is for Parliament todecide whether or not it should continue.’ As I haveemphasised above, all that the HRA requires is thatthe UK courts ‘take account of’ Strasbourg decisions,which therefore are not binding precedents as far asthe UK courts are concerned. It is the UK courtsthemselves who have chosen to treat Strasbourgdecisions as binding on themselves. But it certainlycan do no harm for parliament to clarify the true legalposition in amending legislation.

l ‘In all matters related to our international commitments,parliament is sovereign’

This is a fundamental principle, which certainlyneeds to be stressed. Judges should be concerned,and concerned only, to reach the right decisionaccording to UK domestic law without considerationsof the UK’s international relations, which is a matterfor parliament and the executive. This approachwould have saved Lord Hoffmann in the AF casefrom regretfully making a decision which he knewwas wrong – because of his concern about the UK’streaty obligations under ECHR Article 46. LordIrvine’s point cited above is relevant here: the UK’s


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foreign policy and international relations are amatter for the government, not for the courts, whoseprime responsibility is to UK domestic law and notto the UK’s international treaty obligations.

Key Objectives

The Conservative paper goes on to outline ‘the keyobjectives’ of the proposed new Bill of Rights, as follows:

l ‘Repeal Labour’s Human Rights Act’

This I believe would be a serious mistake. As alreadyindicated, the HRA certainly does contain somepernicious sections, notably sections 3 and 6, whichmust be repealed. But to repeal the whole Act wouldbe throwing the baby out with the bathwater. Thefunction of the HRA is to control the operation of theECHR in the UK. So it can be used to lay down muchclearer and more definite ground rules for the UKcourts to use in applying the ECHR. Otherwise, ifleft to their own devices, for the reasons discussedabove, the courts will continue their current practiceof closely following Strasbourg.

l ‘Put the text of the original Human Rights Conventioninto primary legislation’

This would also be a mistake. It is the result of anaïve belief that the ECHR on its own would be fine,if only it could be freed from the machinations of the Strasbourg court and the HRA. If it could onlybe prised loose from these, all would be well. This isa total fallacy. The ECHR comes with a lot ofbaggage – more than half a century of Strasbourgjurisprudence. As sure as eggs is eggs (to coin a

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THE PROBLEM

phrase), the UK domestic courts will continue tofollow Strasbourg’s lead in interpreting andapplying the ECHR. The reason that some UKjudges have given for following Strasbourg is simplythat the Strasbourg court is the one specificallycharged by the Council of Europe to interpret andadjudicate on the ECHR. Of course, there is alsoanother reason, as we have seen, why UK judgesfollow the Strasbourg line, and that is because ithappens to chime in with their own political views.There is also another reason against making thewhole original ECHR a piece of primary UKlegislation, and that is that those parts of it that arealready incorporated into the HRA already have thatstatus but that, as the authors of the Conservativepaper may not be aware, what is incorporated intothe HRA is not the whole of the ECHR. Retaining thepresent structure may even give the government(through parliament) the opportunity to chop out afew more objectionable convention rights.

l ‘Clarify the convention rights, to reflect a proper balancebetween rights and responsibilities’

This makes sense but, as mentioned above, theobvious vehicle for such clarification is in anamended Human Rights Act, which could perhaps berebranded as the Human Rights and ResponsibilitiesAct (once it is passed).

l ‘Break the formal link between between British courts andthe European Court of Human Rights’

The naïve faith rears its head again that, once freedfrom the obligation to take Strasbourg decisions


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‘into account’, the UK courts will ignore Strasbourgjurisprudence in interpreting the convention rights. This, as we have seen, is a completelyunrealistic expectation.

l ‘End the ability of the European Court of Human Rightsto force the UK to change the law’

As mentioned above, even now Strasbourg cannotactually force the UK to change the law. In practice,however, it does have this power, for two reasons:first, the UK courts’ usual close agreement withStrasbourg; and secondly, the British government’ssupineness in the face of Strasbourg decisions.

l ‘Prevent our laws from being effectively rewrittenthrough “interpretation”’

Once again, we have the naïve statement that: ‘Infuture, the UK courts will interpret legislation basedupon its normal meaning and the clear intention ofparliament, rather than having to stretch its meaningto comply with Strasbourg case-law.’ Strasbourg hasindeed extended the scope of convention rights in itsdecisions. But, as we have repeatedly seen, the UKcourts have willingly followed Strasbourg’s lead. Andthat will not change except under strong compulsionby parliament, and probably not even then.

My own suggested solution to the serious problemsof human rights law will be found at the end of this pamphlet.

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THE PROBLEM

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Case Studies

What follows are two case studies illustrating the presentsorry state of human rights law and the Britishgovernment’s self-delusion.

Voting rights for prisoners

In October 2013 the appeals by two convicted killersagainst a denial of their right to vote were dismissed bythe UK Supreme Court (UKSC). This decision was hailedby David Cameron as a ‘a great victory for commonsense’. In fact, however, there was general agreementamong the justices that, in the words of Lord Clarke, ‘thisCourt should follow the now settled jurisprudence in theStrasbourg court’.9

What then gave the Prime Minister the idea that theUKSC disagreed with Strasbourg? This was obviouslybecause the Supreme Court was not prepared to find thateither of the two appellants should be entitled to vote. Inthe words of Lady Hale: ‘I have no sympathy at all foreither of these appellants. I cannot envisage any lawwhich the UK parliament might eventually pass on thissubject which would grant either of them the right to vote.’ (§99) But this does not mark a departure from Strasbourg. Indeed, it is clear from Scoppola v Italy(No. 3)10 that the Strasbourg court itself would be preparedto accept the disqualification of killers sentenced to life imprisonment.

David Cameron is deluding himself if he thinks theUKSC supports the present blanket disqualification of allconvicted prisoners. On the contrary, the UKSC standsfour-square behind the Strasbourg court. In the words ofLord Sumption:

(I)t would be neither wise not legally defensible foran English court to say that article 3 of the FirstProtocol has a meaning different from that whichrepresents the settled view of the principal courtcharged with its interpretation, and different fromthat which will consequently apply in every otherstate party to the convention. (§138)

Wrong end of stick

As usual, the Conservative paper gets hold of the wrongend of the stick by claiming that the whole issue of votingrights had been ‘deliberately excluded from the text of theconvention’. It is true that the right to vote does not figurein the original version of the convention, but it did not takelong for this right to be added, which was done by Article3 of the First Protocol, which came into force as long agoas 1954. The UK was the very first member state to ratifyit, on 3 November 1952 – when Churchill was primeminister. So it was certainly no belated afterthought – andthe Strasbourg court cannot be blamed for expanding thescope of the convention by including it. It has been part ofthe convention for over sixty years! This, however, is aminor error on the part of the Conservative paper.

Article 3 of Protocol 1

What exactly does the protocol say? Protocol 1, Article 3contains an undertaking by the member states ‘to hold

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free elections at reasonable intervals by secret ballot,under conditions which will ensure the free expression ofthe opinion of the people in the choice of the legislature’.It stipulates secret ballot but does not specify who is to beallowed to vote or who, if anyone, is to be excluded fromthat right.

The position adopted by the Strasbourg court is that theblanket ban in UK law on the rights of convictedprisoners to vote in elections is incompatible with Article3 of Protocol 1 of the ECHR, and it has ordered the UK toamend its law accordingly. This position has beenexpressed in a series of decisions since 2005, notably: Hirstv UK (No 2)11; Greens v UK12, Scoppola v Italy (No. 3)13, andFirth v UK.14

This does not mean that the Strasbourg court regardsany restriction on prisoner voting rights as unacceptable.In a factsheet on ‘Prisoners’ right to vote’ of October 2014the Strasbourg court makes it clear that, despite theimportance of voting rights: ‘Nevertheless, the rightsbestowed by Article 3 of Protocol No. 1 are not absolute.’Disqualification of convicted prisoners serving sentencesof a specified length might well be acceptable, even ifthose prisoners are all disqualified automatically – as longas the disqualification does not amount to a blanketdisqualification of all convicted prisoners serving anyprison sentence irrespective of length.

Why Strasbourg is wrong

This can give little comfort to the British government. Butis it correct? My own view is that it is not and that thereare at least three good reasons for departing from theStrasbourg approach:


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(a) The Strasbourg position is illogical

For one thing, Strasbourg’s position can easily beimpugned on the grounds of logic. In Hirst (No. 2) the Strasbourg court held that a blanket ban on allconvicted prisoners serving sentences of any length wasincompatible with the convention. But Strasbourg isnevertheless prepared to accept an automatic ban onconvicted prisoners sentenced to more than a specifiedlength of sentence and is apparently prepared to treat thechoice of the length of sentence as covered by the so-called ‘margin of appreciation’, meaning that it will be leftto the government of the relevant state to decide. It hasto be recognised that the length of sentence selected, nomatter what it is, will inevitably be arbitrary. However,the Strasbourg court in Scoppola was prepared to acceptthe Italian system, under which even a three-year prisonsentence triggered an automatic ban on voting rights. Butwhat about a six-month sentence? If the setting of thetriggering length of sentence is left to the UK authorities,then even a one-week sentence should be acceptable. Ora one-day sentence. But we know from the Strasbourgjurisprudence that a rule that bans all convicted prisonersis not acceptable. Why? Why should a one-week sentencepass muster, but not a one-day sentence? There is noreason; and to make that distinction, which Strasbourgappears to be making in this area, must therefore belabelled illogical or even irrational.

(b) The current blanket ban has a democratic mandate

The UK parliament has been toying with two differentamendments to the law giving the right to vote toprisoners sentenced to either less than 6 months’ or less

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than four years’ imprisonment. But neither of theseamendments has passed into legislation, becauseparliament is implacably opposed to any wavering onthis issue. This was made clear by the House of Commonson 11 February 2011 in a debate sponsored by seniorbackbenchers from both sides of the House, on a motionasserting that ‘legislative decisions of this nature should be a matter for democratically elected lawmakers’and supporting ‘the current situation under which no sentenced prisoner is able to vote except thoseimprisoned for contempt, default or on remand’. TheHouse of Commons voted in favour of this motion by 234votes to 22 (with both front benches abstaining).

This is in itself a strong argument for refusing to changethe law, and it is further strengthened by public opinion.The view that ‘no prisoners should be allowed to vote’was supported by 63 per cent of respondents in a YouGovpoll taken in November 2012. It is not hard to see why thisshould be such a popular view.

(c) Law-breakers should not have a say on what the law should be

This links up with what is in my opinion the mostpowerful argument of all against allowing convictedprisoners to vote, which is that law-breakers should nothave a say on what the law should be. The right to votein parliamentary elections gives a voter the right tochoose the candidate most likely to support legislationmost favourable to that voter. There are a number of areasof law in which convicted prisoners have a commoninterest, including police powers, evidence, sentencing,drugs, and of course prison reform – a common interestwhich goes clean against the interests of justice and ofsociety as a whole. It may be argued that, even if all


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convicted prisoners had the vote, their numbers wouldnever be enough to influence legislation. There are twoarguments against this. First, the issues which convictedprisoners are likely to favour are all already supported by‘liberal’ parties of various hues. Take, for example, thelegalisation of cannabis, which already has a sizable bodyof support behind it. Prisoner votes could possibly tip thebalance in one or two marginal seats, resulting in theelection of a few more MPs who favour the legalisationof cannabis. But, there is also a more fundamentalargument against the right of prisoners to vote, and thatis that imprisonment is meant to be a punishment,primarily through loss of liberty, and that loss of the rightto vote should be seen as just another intrinsic facet of thispunishment. At one time imprisonment resulted incomplete ‘civic death’. The loss of voting rights is not‘civic death’ but just a small part of it, which might justpossibly send a salutary message.

It is surprising to see how little notice has been taken ofthe argument that lawbreakers should have no say in law-making. The British government virtually capitulated in theCourt of Appeal in the Chester case, as remarked by LordJustice Laws: ‘A signal feature of the case is that theSecretary of State concedes that Representation of thePeople Act 1983 s.3 is repugnant to Article 1 of the FirstProtocol.’15 In other words, the government admitted thatthe disfranchisement of convicted prisoners amounted to aviolation of the right to free elections – a completelyunnecessary and indeed, in my opinion, wrong concessionto make. Even the Strasbourg court held in Scoppola that theexclusion of convicted prisoners sentenced to more thanthree years’ imprisonment did not violate the protocol.

In summing up the arguments on both sides in theCourt of Appeal, Laws LJ in Chester mentioned only one

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that favoured exclusion: ‘It might in particular be saidthat a person convicted of very grave crime has so fardistanced himself from the values of civil society that itwould be a travesty of justice to allow him to participatein its governance.’ (§34) However, this misses the realpoint, which the Secretary of State evidently did notmake. The point is not a philosophical argument about‘the values of civil society’ but the down-to-earth practicalpoint that a lawbreaker – and not only someone convictedof ‘very grave crime’ – should not be allowed to beinvolved in law-making, however indirectly.

In the UKSC in Chester, similarly, in enumerating thearguments on both sides, Lady Hale did not even mentionthe point that law-breakers should have no say on whatthe law should be. Instead, Lady Hale expressed thesurprising view that: ‘The arguments for and against theirexclusion are quite finely balanced.’(§91) And thearguments enumerated by this justice largely favourprisoners’ voting rights, including the remark that theblanket exclusion of prisoners from voting ‘does notexplain the purpose of the exclusion’. Yet, there is a veryobvious purpose for the exclusion of convicted prisonersfrom voting – namely, once again, to prevent lawbreakersfrom influencing law-making. This in my opinion is anargument which trumps all arguments to the contrary, butwhich unfortunately was evidently not put forward onbehalf of the government.

It is of course possible to raise objections to anydisqualification of convicted prisoners, such as:

l The arbitrary nature of the threshold for imprisonment.The relevance of this point is dubious. The answerto this is that this threshold will inevitably bearbitrary to some extent and may also vary from onecourt to another, but a concession that there is no


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basis for imprisoning some offenders and not othersis tantamount to a concession that the criminaljustice system is in disarray. However, ironicallyperhaps, a blanket ban on all convicted prisoners isobviously less arbitrary than any other basis.

l The arbitrary nature of any disqualification in terms oflength of sentence. A disqualification level of sixmonths is just as arbitrary as one of four years or 20years, but the Strasbourg court in Scoppola isevidently amenable to an automatic ban, as long asit does not cover all convicted prisoners, a positionwhich, as we have seen, is illogical.

l What about mental patients? The objection is that thereis no equivalent here to length of a prison sentence.So does that mean that all mental patients should beallowed to vote? Surely not. The simplest solution isjust to leave the disqualification as already spelt outin section 3A of the Representation of the People Act1983.

l A democracy must protect minority as well as majorityrights, and convicted prisoners are a minority notrepresented in parliament. So ‘the views of the public andparliamentarians cannot be the end of the story’.16 It ishard to see the relevance of this objection to thequestion of prisoners’ voting rights. In what sensedo prisoners constitute a ‘minority’? In my opinion,Lord Sumption has the better of the argument onthis point in Chester:

The protection of minorities is a necessary concernof any democratic constitution. But the presentissue has nothing whatever to do with theprotection of minorities. Prisoners belong to aminority only in the banal and legally irrelevant

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sense that most people do not do the things whichwarrant imprisonment by due process of law. (§112)

Conclusion on voting rights

So far from the UK Supreme Court’s supporting theblanket ban on prisoners’ voting rights, as thegovernment fondly believes, the court is four-squarebehind Strasbourg. What is also noteworthy is thegovernment’s legal representatives’ unnecessarycapitulation to Strasbourg in court.

Abu Qatada

This case study is the sorry saga of what might be calleda yo-yo case, namely one that repeatedly goes one wayand then another – and when lower courts even had thetemerity to continue to follow a Strasbourg ‘rule’ after ithad actually been declared to be wrong by the House ofLords. It also reveals the supineness of the Secretary ofState in kowtowing to this same ‘rule’ in court in 2012,three years after it had been conclusively knocked on thehead by the House of Lords. Besides being a yo-yo case itmight also be called a ping-pong case, in which far toomany appeals were permitted back and forth.

Abu Qatada (Omar Mahmoud Othman), a Jordaniannational who was repeatedly imprisoned and released inthe UK under anti-terrorism laws but was never chargedwith any crime, was eventually deported back to Jordanin July 2013. Some landmarks in the Abu Qatada saga areas follows:

l In 1999 he was sentenced in absentia by a Jordaniancourt to life imprisonment, to which a further 15years were added in a subsequent trial held inJordan in the year 2000.


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l 2004: In dismissing Abu Qatada’s appeal againstdetention without trial Mr Justice Collins, the thenchairman of the Special Immigration AppealsCommission (SIAC), remarked that Abu Qatada had been ‘concerned in the instigation of acts ofinternational terrorism’ and ‘is a truly dangerousindividual’.17

l 2006: In August 2005 Abu Qatada was served by theHome Secretary with a Notice of Intention to Deporthim to Jordan. His appeal to the Special ImmigrationAppeals Commission (SIAC) was dismissed in avery detailed judgment running to 541 paragraphs.18

His main objection to deportation was the dangerthat evidence used against him might have beenobtained by torture. To counter this the UKgovernment entered into a Memorandum ofUnderstanding (MoU) with Jordan followed up byquestions addressed to the Jordanian governmentrelating specifically to the deportation of AbuQatada. One of these questions was: ‘Is confessionevidence admissible even if the State Security Courthave reason to believe that it was obtained bytorture?’ The clear and unequivocal answer to thisgiven by the Jordanian government was ‘no’.19 Thedismissal of Abu Qatada’s appeal againstdeportation was based not only on the MoU and thequestions, but even more so on this importantgeneral point of law: ‘It is a fallacy to treat the ECHRobligation on the removing state as one whichrequires a guarantee, let alone a legally enforceableone, that there would be no risk at all of a breach ofArticle 3 in the receiving state.’ (§494)

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l 2008: Abu Qatada successfully appealed to the Courtof Appeal, which roundly condemned the SIACdecision: ‘It was not open to SIAC to conclude on theevidence that the risk of the total denial of justicethat is represented by the use of evidence obtainedby torture had been adequately excluded.’20 And:‘SIAC understated or misunderstood the fundamentalnature in convention law of the prohibition againstthe use of evidence obtained by torture.’ (§45) Andagain: ‘Our conclusion on the issue of evidenceobtained by torture therefore remains that SIACmisdirected itself in law and its determinationcannot stand.’ (§70)

l 2009: A unanimous House of Lords reversed thedecision of the Court of Appeal and reinstatedSIAC’s decision allowing Abu Qatada’s deportation.In the words of Lord Hoffmann: ‘In my opinion theCourt of Appeal was wrong and SIAC was entitledto find that there was no breach of Article 6 in itsapplication to a trial in a foreign state... There is inmy opinion no authority for a rule that, in thecontext of the application of Article 6 to a foreigntrial, the risk of the use of evidence obtained by torture necessarily amounts to a flagrant denialof justice.’21

l 2009: In accordance with this decision, the HomeSecretary immediately served a deportation orderon Abu Qatada, which however was not enforcedpending his application to the European Court ofHuman Rights.

l 2012: The European Court of Human Rights foundthat, because there was a ‘real risk’ that two


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witnesses had been ‘tortured into providingevidence against’ Abu Qatada, ‘there is a real riskthat the applicant’s retrial would amount to aflagrant denial of justice.’22 Therefore: ‘The Courtfinds that the applicant’s deportation to Jordanwould be a violation of Article 6 of the convention.’(§287)

l 2012: In spite of this, the Home Secretary againnotified Abu Qatada that she intended to deport himtwo weeks later. Abu Qatada appealed against thatdecision under section 82(2)(k) of the NationalityImmigration & Asylum Act 2002. This appeal wasagain heard by SIAC, which this time found in hisfavour.23 The key question, as before, was whetherthere was a ‘risk’ that statements obtained by torturewould be used against Abu Qatada at his retrial inJordan. Although the Secretary of State refused torevoke the deportation order, the order expresslystated that she ‘does not seek to bypass the decisionof the ECtHR’. (§17) And Counsel for thegovernment went so far as to state ‘that the decisionletter was expressly drafted on the basis of thejudgment of the Strasbourg Court and by referenceto the test laid down by it’ (§17) – the very test thatthe House of Lords had held to be wrong! The SIACdecision continued: ‘In consequence, the Secretaryof State accepts that if we were to find that the testidentified by the Strasbourg Court has not beensatisfied, we could or should allow the appellant’sappeal on the basis that her discretion should havebeen exercised differently under section 86(3)(b) of the Nationality Immigration and Asylum Act2002.’ (§17) With this concession, the only way of

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preventing Abu Qatada from winning this appealwould have been by proving that no statementsmade under torture would be used against AbuQatada. Although the Jordanian constitution hadbeen amended to disallow torture or ‘any statementextracted from a person under duress’ (§69), SIACconcluded that the ‘Secretary of State has notsatisfied us that, on a retrial, there is no real risk’ thatevidence obtained by torture would be ‘admittedprobatively’ against Abu Qatada. (§78)

l 2013: The Secretary of State appealed unsuccessfullyto the Court of Appeal.24 Once again, the centralissue was said to be the risk that the evidenceagainst Abu Qatada at a retrial in Jordan ‘wouldinclude statements that have been obtained bytorture and, if so, what effect this has on thelawfulness of his deportation’. (§1) There is nomention at all in this judgment of the 2009 decisionof the House of Lords, which might have beenthought to have cut the ground from under thewhole idea of the relevance of torture evidence.

l 2014: After finally being deported back to Jordan, on26 June 2014 Abu Qatada was acquitted of terroristcharges by a three-judge military court in Jordan,and on 24 September 2014 he was acquitted offurther charges by a panel of civilian judges sittingin Jordan’s State Security Court.


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Recommendations

Here is my own suggested solution to the serious problemof UK human rights law, which agrees with some of theConservative paper’s suggestions but goes further byrecognising the elephant in the room.

Human Rights and Responsibilities Bill

The government should amend the Human Rights Act (a)by changing its title to the Human Rights andResponsibilities Bill; (b) by repealing the pernicioussections 3 and 6; (c) by adding new sections laying downvery clear ground rules for the courts to follow wheninterpreting and applying the ECHR; (d) by setting upparliamentary machinery to decide on any changes tohuman rights law, a power which must be taken awayfrom the courts; and (e) by adding a list of responsibilitiesby which people will be expected to abide.

Judicial review

Judicial review is a procedure giving the High Court thepower to quash (i.e. set aside) an administrative decisionwhere the government body concerned has exceeded itspowers. It does not give the court the right to substituteits own decision for that of the government body inquestion, which amounts to usurping the power of thegovernment. Yet, in the past half century or so the courtshave encroached more and more on the domain of the

executive government – and even on that of thelegislature, parliament. Successive governments havelamely stood by and watched while the courts haveusurped powers that did not belong to them.

A major reform of judicial review is long overdue. In2014 the government did at least introduce legislation torestrict the scope of judicial review. However, thegovernment appears to have backed down after a defeatin the House of Lords on 27 October 2014. Lord Woolf, aformer chief justice, warned: ‘However carefully welegislate, it’s dangerous to go down the line of telling thejudges what they have got to do.’ He added that it wasnecessary to ‘safeguard judicial review’ in order to avoidfalling into ‘the trap of an elective dictatorship’ (column959) (a phrase coined by Lord Hailsham in 1976).Needless to say, Lord Woolf omitted to mention theopposite danger of an unelected dictatorship ofirremovable judges responsible to nobody. Also, ‘tellingthe judges what they have got to do’ is legislation – afunction of parliament, not of the judiciary. For thejudiciary to determine the scope of its own powers, whichit has lamely been allowed to do by a succession ofgovernments for the past half century or so, is anabdication of the democratic responsibility of both thegovernment and parliament.

Constitutional Reform Act 2005

Section 3 of this act, which amounts to a total capitulationof the government to the judiciary, needs urgentamendment. Under the heading ‘The guarantee ofcontinued judicial independence’, it provides that thegovernment ‘must uphold the continued independenceof the judiciary’. On the face of it, this appears


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unobjectionable. Its ‘independence’ of course means,among other things, that the judiciary is not responsibleto any body or institution. But that should not be allowedto mean ‘irresponsibility’ in a broader sense, of which,unfortunately, there has been a good deal of evidence in recent years. In addition, the independence of thejudiciary from government interference must bebalanced by the independence of the government and

parliament from judicial meddling – which forms part ofthe concept of the separation of powers, which LordDiplock famously declared to form the bedrock of theconstitution: ‘It cannot be too strongly emphasised thatthe British constitution, though largely unwritten, isfirmly based on the separation of powers: parliamentmakes the laws, the judiciary interpret them’.25 Separationof powers undoubtedly has a place in the Britishconstitution, albeit not quite as central a place as it wasaccorded by Lord Diplock. The Constitutional Reform Actarose out of a so-called ‘concordat’ between the ChiefJustice and the Lord Chancellor, which should indicate acompromise of some sort. But there is no sign of that inthe Constitutional Reform Act. Instead, the judiciary haskept expanding the scope of its oversight of governmentdecisions by means of judicial review, which calls forurgent pruning.

The elephant in the room

The Conservative Party is deluding itself if it thinks that,freed from the trammels of Strasbourg, the UK domesticcourts will start interpreting convention rights on thebasis of their plain, ordinary or literal meaning. Thedomestic courts are on an expansionist binge, which hasnever been checked by the government or parliament.


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Continued failure to check this development will resultnot only in a serious weakening of national defencesagainst terrorism and illegal immigration, but will alsoamount to a denial of democracy. Besides failing to checkthe judiciary’s arrogation to itself of more and morepowers, the government has not even tried to counter theincreasingly vociferous arguments advanced in favour ofthis development. That task calls for urgent attention,which however is a major undertaking that will require aseparate publication covering the following issues,among others:

l The rule of law v the rule of judges. Are judgesallowed to legislate? If so, how does that square withthe principle of the sovereignty of parliament? Andif not, where does the borderline fall betweenlegislation and interpretation? And who is to decidethis issue?26

l What mechanism is there for law-abiding citizens tocompel the government to protect them againstcrime, terrorism or illegal immigration?

l Amending the Human Rights Act by means of a newHuman Rights and Responsibilities Bill (see above).

l The provisions of an amended ConstitutionalReform Act clearly enunciating the principle of thesovereignty of parliament, clarifying the reciprocalnature and scope of the separation of powers andrestricting the ambit of judicial review.

l Legislation to control the costs of civil litigation. TheUK is the only country in the world where a claimworth, say, £30,000 may cost the loser legal fees of

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half a million pounds – which amounts to a denialof justice. A recent reform of civil litigation costs (onthe basis of a lengthy report by a judge) has left thiscentral problem unchecked. The government needsto take the bull by the horns and pass legislation tosolve this serious problem – as in Germany, whosesimple and eminently fair costs regime is statutory.27

l An ambitious new programme of parliamentarylegislation. Most states of the United States, whileremaining common law jurisdictions, have codifiedstatutes covering all branches of law and procedure.The UK, by contrast, not only eschews codificationbut does not even have many areas of consolidatedlegislation. Instead, there is a welter of legislation onthe same subject – like the innumerable employmentlaws, criminal justice acts and terrorism-relatedlaws. Codification, or even consolidation, whichwould be a doddle to implement in this computerage of ours, would help to clarify the law, put therule of law on a firmer footing and make it harderfor the judges to take the law into their own hands.28

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Conclusion

UK human rights law needs urgent attention. It has beenhijacked by certain special interest groups, notablyconvicted prisoners (especially killers), illegal immigrantsand terrorist suspects. But these groups cannot hijack the law by themselves. So who is responsible for thisdevelopment? Many people, including the ConservativeParty, point the finger at the Strasbourg Court. But, uponexamination, this study shows that the real fault lies withthe UK’s own domestic courts, aided by a lamegovernment too afraid to stand up to the judges.

It is only once the cause of the problem is correctlydiagnosed that it can be successfully treated, and thetreatment that I propose in this report certainly is drastic– and very different from that proposed by theConservative Party or anybody else. At the time ofwriting, Andrew Parker, the head of MI5, has warned ofa heightened risk of terrorist attacks on the UK and hascalled for new legal powers to combat this risk. It is timefor the government to answer this call for action and tohave the guts to resist the inevitable judicial opposition.

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Notes

1 ‘Protecting Human Rights in the UK’, Conservative Party:https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf

2 Lord Irvine of Lairg, ‘A British Interpretation of Convention Rights’,lecture, 14 December 2011

3 (2009) 3 WLR 74, (2009) UKHL 284 (2004) UKHL 565 (1996) 23 EHRR 4136 ‘The Brave New World of Sir John Laws’, Modern Law Review 63

(2000) 1597 Quoted by Lord Sumption in his Sultan Azlan Shah Lecture, ‘The

Limits of Law’, 20 November 2013.8 ‘Judicial & Political Decision-Making: The Uncertain Boundary’,

F.A. Mann Lecture, 20119 R (Chester) v Secretary of State for Justice & McGeoch v Lord President

(2013) UKSC 6310 (2012) 56 EHRR 6311 (2005) 42 EHRR 84912 (2010) 53 EHRR 71013 (2012) 56 EHRR 66314 (2014) ECHR 87415 Chester v Secretary of State for Justice (2010) EWCA Civ 1439, at §2. 16 Lady Hale in Chester, § 8817 BBC News, 23 March 2004: news.bbc.co.uk/1/hi/uk_politics/

3562695.stm18 SC/15/2005, 26 February 200719 Annex 3 to SIAC Judgment20 (2008) EWCA Civ 290, §5621 OO (Jordan) v Secretary of State for the Home Department (2009) UKHL

10; Othman v SSHD (2010) 2 AC 110, §20122 Othman (Abu Qatada) v UK (Application No. 8139/09) §282)23 Appeal No. SC/15/2005 – 12 November 2012; (2012) UKSIAC

15/2005_224 (2013) EWCA Civ 27725 Duport Steels v Sirs (1980) 1 All ER 52926 See Michael Arnheim, Principles of the Common Law,Duckworth, 200427 See Michael Arnheim, ‘Costs – a missed opportunity?’, The Barrister,

201028 See Michael Arnheim, US Constitution for Dummies, Wiley, 2009


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Documents

The Problem With Human Rights Law - Civitas