4 Parliamentary sovereignty and the
European Court of Human Rights |
67. The previous Government's initial response to
the judgment of the European Court of Human Rights in the Hirst
case was summarised by Jack Straw in his autobiography, Last
Man Standing, in this way:
"In my last ministerial post as Justice
Secretary I'd made many decisions about many things; but I'd also
spent three years ensuring that the government took no decision
in response to a judgment by the European Court of Human Rights
that the UK's ban on convicted prisoners being able to vote was
unlawful. I'd kicked the issue into touch, first with one inconclusive
public consultation, then with a second."
68. These delays meant that no firm steps were taken
until after the 2010 election, when Mr Straw, along with Mr David
Davis, made use of the new mechanism of the Backbench Business
Committee to initiate a debate in the House of Commons. In the
course of the debate on 10 February 2011 many Members expressed
their strong opposition to the Hirst judgment. The resolution
that was then agreed, by an overwhelming majority of 234 votes
to 22, stated "that legislative decisions of this nature
should be a matter for democratically-elected lawmakers".
The resolution also expressed support for "the current situation
in which no prisoner is able to vote except those imprisoned for
contempt, default or on remand."
69. The motion was passed on a free vote in which
frontbenchers from both sides chose not to participate. But both
the Prime Minister and the Labour Shadow Justice Minister, Sadiq
Khan MP, have made their feelings plain. At Prime Minister's Questions,
in October 2012, the Prime Minister said:
"The House of Commons has voted against
prisoners having the vote. I do not want prisoners to have the
vote, and they should not get the voteI am very clear about
no one should be in any doubt: prisoners are not getting
the vote under this Government."
70. In a press release the following month, Sadiq
"Labour's policy is, and always has been,
that prisoners shouldn't be given the vote. Committing a crime
so serious that a judge has deprived you of your liberty means
you should also lose the ability to vote in elections."
71. We note that there has been no opportunity for
the House of Lords to debate or express a view on the issue of
prisoner voting, and that until both Houses have come to a view
it will not be possible to confirm the will of Parliament as a
whole. Nevertheless, the clearly expressed views of the elected
chamber, and of both major political parties, have led us to consider
the relationship between democratically elected national legislatures
and the European Court of Human Rights. This has in turn led us
to consider the two constitutional principles of the rule of law
and parliamentary sovereignty.
72. The classic summary of the constitutional principle
of the sovereignty of Parliament was given by A. V. Dicey in 1885:
"The principle of Parliamentary sovereignty mean neither
more nor less than this, namely that Parliament
the English constitution, the right to make or unmake any law
whatever: and, further, that no person or body is recognised by
the law of England as having a right to override or set aside
the legislation of Parliament."
For Walter Bagehot, parliamentary sovereignty was demonstrated
by the fact that "the ultimate authority in the English Constitution
is a newly-elected House of Commons."
73. What this means in practice is that Parliament
is generally held to enjoy complete legislative supremacy. As
Dicey said, "there is no law which Parliament cannot change".
The first edition of Thomas Erskine May's Treatise on the Law,
Privileges, Proceedings and Usage of Parliament, published
in 1844, described this supremacy in the following terms:
"The legislative authority of Parliament
extends over the United Kingdom, and all its colonies and foreign
possessions; there are no other limits to its power of making
laws for the whole empire than those which are incident to all
sovereign authority the willingness of the people to obey,
or their power to resist. Unlike the legislatures of many other
countries, it is bound by no fundamental charter or constitution;
but has itself the sole constitutional right of establishing and
altering the laws and government of the empire."
Sir Robert Rogers and Rhodri Walters, in a contemporary
discussion of Parliament's legislative supremacy, note that "the
courts of law are under a duty to apply legislation, even if that
legislation might appear to be morally or politically wrong."
International legal obligations
74. Some writers on constitutional theory have argued
that Dicey's view of parliamentary sovereignty now needs to be
qualified by reference to the increasing number of international
law obligations which bind the United Kingdom.
Parliament itself has, in many cases, entered into these obligationsfor
instance, by passing the European Communities Act 1972, setting
out the terms of the UK's membership of the European Union. The
effect of these obligations is, in the words of the current edition
of Erskine May, that while "the authority of Parliament
over all matters and persons within its jurisdiction was formerly
in the twentieth century, however, Parliament
accepted that its unlimited legislative authority should be qualified."
Of the UK's membership of the European Union, Erskine May
"Accession of the United Kingdom to membership
of the European Communities (now the European Union) on 1 January
1973 qualified the exclusive legislative authority of the United
Although the primary obligations created
by [section 2 of the European Communities Act 1972] are susceptible
of amendment by Parliament, by virtue, of the doctrine of the
supremacy of Parliament, the courts have on a number of occasions
had to consider the relative priority of United Kingdom statute
law and law which has effect by virtue of the Treaties and the
Act of 1972. It has been decided that European law takes priority
over inconsistent United Kingdom law, not because the former supplants
the latter, but because European law is part of United Kingdom
Thus in respect of EU law Parliament remains sovereign,
in that it can at any time amend or repeal the European Communities
Act 1972in an extreme case, terminating UK membership altogether.
But on a day-to-day basis EU law has priority over domestic law.
75. These consequences of EU membership are generally
acknowledged, but the significance of the international law obligations
arising out of UK ratification of the Convention is less clear.
The United Kingdom entered into an obligation to abide by the
terms of the Convention; Parliament could, as in the case of EU
membership, formally "denounce"
the Convention, in whole or in part, thereby bringing to an end
international law obligations arising out of membership.
76. However, as long as the UK remains party to the
Convention certain legal obligations arise out of it. In particular,
the UK has ratified Article 25, which provides for a right of
individual petition to the Court, and Article 46, under which
it is obliged to comply with any judgment of the Court in any
case to which it is party. Lord Bingham of Cornhill, in The Rule
of Law, argued that "the rule of law requires compliance
by the state with its obligations in international law as in national
law." He suggested that:
"Although international law comprises a
distinct and recognisable body of law with its own rules and institutions,
it is a body of law complementary to the national laws of individual
states and in no way antagonistic to them; it is not a thing apart;
it rests on similar principles and pursues similar ends; and observance
of the rule of law is quite as important on the international
plane as on the national, perhaps even more so."
Lord Bingham did not specify what he meant by the
"state", which is required to comply with its obligations
under international law. The obligation upon the UK Government
is clear, but can such an obligation also attach to a sovereign
Parliament, which enjoys complete domestic legislative supremacy?
Whereas there are mechanisms for EU law automatically to find
its way onto the UK statute book by virtue of the European Communities
Act 1972, there is no such mechanism so far as the Convention
is concerned. The Convention leaves it to member states to implement
judgments of the Court, and when changes to domestic law are required
it is for member states to decide how to implement them.
The developing role of the European
Court of Human Rights
77. These constitutional questions need to be seen
against the backdrop of the ECtHR's adoption, since the 1970s,
of the doctrine of the "living instrument", which we
have touched on in Chapter 3. With the support of this doctrine
the Court has interpreted the Convention in such a way as to allow
it to intervene in areas which were not anticipated by those who
drafted the Convention in the late 1940sareas which have
hitherto fallen under the sole jurisdiction of national parliaments.
78. Interpretation of the Convention as a living
instrument has, in some cases, led to outcomes that have ultimately
been welcomed by national parliaments, even if they were controversial
at the time. The Secretary General of the Council of Europe, Mr
Thorbjørn Jagland, cited the Court's decisions on "the
rights of homosexuals in the military."
In cases involving the UK just over a decade ago, the Court held
that dismissal from the armed forces on the sole basis of homosexuality
was contrary to Article 8 of the Convention (which guarantees
the right to private and family life) read together with Article
14 (which prohibits discrimination in the enjoyment of Convention
rights). Yet at the
time the UK Government, in its submissions before the Court, had
argued that "admitting homosexuals to the armed forces at
this time would have a significant and negative effect on the
morale of armed forces' personnel and, in turn, on the fighting
power and the operational effectiveness of the armed forces".
Moreover, the House of Commons had itself voted against any change
to the Government's policy, by a majority of 188 votes to 120.
But following the Court's judgment, the Government acted quickly
to end the ban on homosexuals in the military, and today it seems
inconceivable that the Government or Parliament would seek to
reinstate it. Indeed, Mr Jagland told us that "the rights
of LGBT people," and concern over infringement of these rights
in some member states, was now one of the issues raised most frequently
and forcefully by the UK Government within the Committee of Ministers.
79. Lord Mackay of Clashfern, while describing the
doctrine of the "living instrument" as "quite nebulous",
suggested that it was in practice consistent with the normal conventions
governing judicial interpretation of statute law:
"The other option is to think of the convention
and the protocols as dead letters. They are alive in the sense
that they have effect today. Lord Hoffmann has analysed the idea
of the living instrument as a banner under which they have gone
fairly far. There is always a question of interpreting the law.
The courts interpret the law, but usually in present circumstances.
If the law has not been repealed or changed, it is supposed to
work in present circumstances."
The Equality and Human Rights Commission also argued
in favour of an element of flexibility and interpretation: "the
Convention must be interpreted in the light of its 'objects and
purpose', central to which is promotion of the ideals and values
of a democratic society."
80. Yet concerns remain over other aspects of the
expansion of the Court's jurisprudence. Lord Hoffmann, in his
2009 lecture to the Judicial Studies Board on 'The Universality
of Human Rights', claimed that the European Court had been "unable
to resist the temptation to aggrandise its jurisdiction and to
impose uniform rules on Member States."
Lord Hoffmann also argued that the Court lacked "constitutional
legitimacy" and suggested that "the proposition that
the Convention is a 'living instrument' is the banner under which
the Strasbourg court has assumed power to legislate what they
consider to be required by 'European public order'."
81. For some of the witnesses to this Committee the
issue of prisoner voting was a symptom of far deeper concerns
about the expanding jurisdiction of the Court. David Davis MP
told the Committee that the issue:
"Highlighted the problem of the effect of
the living instrument doctrine in the European Court of Human
Rights, which was leading it to intervene in a whole series of
areas, not just this one, that we and the original signatories
to the convention would not have conceived of. The general concern
was that there was no clear democratic mechanism for correcting
it. Unlike any national court or court system, international courts
do not have a proper democratic override."
82. Lord Faulks QC tied the issue into the question
of the "margin of appreciation"
that should be allowed to Council of Europe states when interpreting
"The margin of appreciation is something
which, in the course of the negotiations over the Council of Europe
and the Brighton declaration, it was hoped would be reaffirmed
in wider terms. I do not think that was really achieved
My own view is that, in a number of different fields and not just
prisoner voting, there has been a failure by the Strasbourg court
to acknowledge the margin of appreciation in the way that is should."
83. The Lord Chancellor went further, describing
the Court as "an institution that has strayed too far from
its core purpose to be acceptable", and suggesting that the
Court was "trying to rewrite itself into virtually being
a Supreme Court for Europe".
He said that his concerns were not simply bound up in the question
of whether prisoners should get the vote, citing in addition the
recent case of Animal Defenders International v United Kingdom,
in which the Court upheld the UK's law restricting expenditure
on political advertising by a margin of just 9 to 8:
"The issue around the European Court of
Human Rights and the application of the Convention is clearly
an evolutionary jurisprudence. It is a jurisprudence without limit;
it is able to expand its remit into almost any area that it can
justify under the terms of the Convention, which is quite vaguely
worded. It has done so extensively over the years. I think that,
if we set aside this particular case, my view is that it is now
treading too far away from the original intentions of its creators
to be acceptable."
84. It was also suggested that the expansion of the
Court's jurisdiction had led to a 'democratic deficit'. Dr Pinto-Duschinsky
therefore argued for the introduction of a democratic override:
"a right to permit national parliaments to override judicial
lawmaking by the Strasbourg court. In other words, we should try
to negotiate with regard to the European Convention on Human Rights
and the Strasbourg court exactly the pattern that exists for the
Human Rights Act, namely that if there is a declaration of incompatibility
by the judges it goes back to Parliament, which then has the last
concerns have expressed by Lord Sumption, in a recent speech delivered
in Malaysia, in which he argued that "the Strasbourg court's
approach to judicial lawmaking gives rise
to a significant
democratic deficit in some important areas of social policy,"
and by the former Lord Justice of England and Wales, Lord Judge,
in a speech on 4 December 2013.
85. Lord Mackay, on the other hand, recalling the
events of the 1930s and 40s, noted that even democratically elected
governments could be guilty of the gravest crimes: "The arrangement
that was made by the European powers after the war was intended
to deal with that situation, and, if necessary, stand up against
public opinion that might be misled or misleading."
Sir Francis Jacobs QC also highlighted the limitations on the
authority even of democratically elected legislatures: "Convention
rights and their limitations are safeguarded by national law,
which is underpinned by a democratic system of government. However
that does not of course entitle even a democratically elected
legislature to override human rights."
86. A process of reform of the Council of Europe
is already under way, not least thanks to the efforts of the United
Kingdom Government during its recent 6-month chairmanship of the
Committee of Ministers. This led to the Brighton Declaration of
April 2012, which confirmed a number of reforms designed to make
the Court work more effectively, in particular by reducing the
backlog of cases.
Mr Jagland also referred to the introduction of a new process
of appointment for judges of the ECtHR, and emphasised that, as
a result of these reforms, "We need to get the best judges
and we need to see to it that governments nominate their best
87. Plainly it is beyond the remit of this Committee
to consider further reforms to the Convention system, but equally
it is clear to us that concern remains about how the Court interprets
the Convention and whether further reform is required.
Can Parliament ignore international
88. Announcing the draft Bill, the Lord Chancellor,
Chris Grayling, noted that "it remains the case that Parliament
is sovereign" citing in support of that statement a judgment
by Lord Hoffmann in the case of ex parte Simms. In that
case, Lord Hoffmann observed that:
"Parliamentary sovereignty means that Parliament
can, if it chooses, legislate contrary to fundamental principles
of human rights. The Human Rights Act 1998 will not detract from
this power. The constraints upon its exercise by Parliament are
ultimately political, not legal."
89. The ex parte Simms case, as the Lord Chancellor
acknowledged, addressed domestic law (the Human Rights Act 1998),
rather than the UK's international law obligations under the Convention
itself. This distinction was set out in a 2011 lecture delivered
by the current President of the Supreme Court, Lord Neuberger
"It is true that membership of the Convention
imposes obligations on the state to ensure that judgments of the
Strasbourg court are implemented, but those obligations are in
international law, not domestic law. And, ultimately, the implementation
of a Strasbourg, or indeed a domestic court judgment is a matter
for Parliament. If it chose not to implement a Strasbourg judgment,
it might place the United Kingdom in breach of its treaty obligations,
but as a matter of domestic law there would be nothing
objectionable in such a course. It would be a political decision,
with which the courts could not interfere."
90. Accordingly, if Parliament enacts legislation
which does not comply with the Hirst judgment, or decides
not to legislate to bring UK law into compliance with that judgment,
it will put the United Kingdom in breach of its international
law obligations. At the same time, there is no legal or other
obligation that can require Members of either House of Parliament
to vote in a particular way.
91. Lord Neuberger, in his 2011 lecture, described
parliamentary sovereignty as "fettered so long as Parliament
is required to implement a decision of the Strasbourg court".
At the same time, he acknowledged that:
"Any such fetter remains only so long as
the Treaty obligation itself remains valid, but any country can
withdraw from the Treaty, and that demonstrates that whatever
limit membership imposes on legal sovereignty, it is a fetter
which endures only whilst our membership enduresi.e. only
while Parliament wants it to endure."
92. Lord Mackay advanced a similar view, saying that
the principle of parliamentary sovereignty "is not an argument
against giving effect to the judgment
It may be a good
reason for changing the arrangements, if you can think about a
way of doing it, but, as I see it, it does not affect the present
When pressed on whose will should prevail, that of the UK Parliament
or the judges of the ECtHR, Lord Mackay said: "I am absolutely
clear that Parliament has an obligation, in terms of the treaty
to which we are still party, to give effect to the judgment of
the Strasbourg court
That is what we have agreed to, not
subject to anything about whether the court will come to the right
93. Nuala Mole, of the AIRE Centre, agreed with Lord
Mackay: "The UK is bound, under Article 46
with the judgment
It is the rule of law."
Aidan O'Neill QC, recalling an ancient adage,
said that "the law is above you, no matter what, and we have
to abide by the law."
Lord Faulks QC agreed, albeit more reluctantly: "I do not
think that we have any choice. I think that we should go for minimal
but, for the moment, we have run out of road
in terms of choice."
94. Lord Goldsmith QC said that "we signed up
in Article 46 to an obligation to respect judgments of the court
in cases to which we were party
the nature of courts is
that from time to time they reach decisions with which parties
[but] the rule of law requires that when you have
signed up to an obligation to respect that judgment, you must
do so." Lord
Lester of Herne Hill QC was still more explicit in stating that
Parliament, as a constituent part of the United Kingdom state,
was under an obligation to comply with the judgment: "Parliament,
as well as the Executive, as well as the judiciary, are under
an international law obligation that was accepted on behalf of
the United Kingdom. This Committee and Parliament as a whole have
95. In contrast, Lord Judge, in his speech on 4 December
2013, affirmed that the final decision rested with Parliament:
"In our constitutional arrangements Parliament
is sovereign. It can overrule, through the legislative process,
any decision of our Supreme Court. In relation to the Strasbourg
Court, and the Convention, is this principle negatived by our
accession to the treaty obligation contained in Article 46? Do
we, can we, accept the obligation
that when a UK case arises,
our Parliament must take 'general measures in its domestic legal
order to put an end' to the violations found by the European Court?
Can that possibly be required if Parliament disagrees? For me
the answer is, of course not."
96. The Attorney General, while linking UK compliance
with the Hirst judgment to the rule of law, used terms
that emphasised the moral duty upon all members of the legislature
to reflect upon the consequences of non-compliance: "Seeing
as, on the whole, the rule of law matters, it must matter to this
Committee and should matter to this parliament, as indeed it matters
to the government, as to whether you decide to ignore your international
legal obligations or find a way of meeting them."
97. Ultimately, Members of both Houses are free to
vote according to their conscience. There are two possible qualifications.
The first is the reference in the Ministerial Code to "the
overarching duty on Ministers to comply with the law including
international law and treaty obligations and to uphold the administration
The second relates to the specific duty placed upon the Lord Chancellor,
as part of his oath of office (as amended by section 17 of the
Constitutional Reform Act 2005), to uphold the rule of law.
98. The Lord Chancellor was careful to distinguish
between these two qualifications, noting that "the Prime
Minister is the arbiter of the Ministerial Code and can decide
when and how it is applied, whereas, in the case of the Lord Chancellor,
I have sworn an oath to uphold the law."
He therefore indicated that he would seek legal advice before
deciding which way to vote:
"I will very carefully listen to what the
advice to me is about my obligations, having sworn the oath, and
I will uphold the obligations under the oath
If I were
not the Lord Chancellor, you can probably work out which way I
would be inclined to vote, but I am Lord Chancellor. I take that
very seriously, and therefore my approach as Lord Chancellor has
to be carefully judged in the context of what my obligations are."
Non-compliance and withdrawal
from the Convention system
99. We have also considered what would happen if
Parliament decided not to abide by the UK's international law
obligation to comply with the Hirst judgment? One view was expressed
by Mr Davis, Mr Straw and Mr Raab:
"If the UK retained its current ban on prisoner
the sanctions at the Council of Europe level would
be primarily political. There might be some mild diplomatic criticism
from the Council of Europe's Committee of Ministers in Strasbourg.
However, expulsion from the Council of Europe is utterly implausible.
The Council of Europe has not expelled Bulgaria for breaches of
the right to life (cases of fatal police brutality), Moldova for
the torture of prisoners and Russia for atrocities committed by
its armed forces in Chechnya. If the Government refuses to change
the law on prisoner voting, the matter will remain on the list
of unenforced judgments kept by the Council of Europe."
100. This is a plausible assessment of political
realities in the Council of Europe. Human rights abuses are indeed
widespread in many Council of Europe member states, and the governments
of those states frequently drag their feetsometimes for
many yearsin complying with judgments of the ECtHR against
them. But that is not the situation in which the UK finds itself:
rather than simply leaving the Hirst judgment to drift
the Government, in Option 3 in the draft Bill, has invited Parliament
to consider enacting legislation re-stating a law that has been
found to be in breach of the Convention. To the best of our knowledge,
such a course of action would be without precedent in the history
of the Council of Europe. Mr Jagland confirmed that he was not
aware of any case in which "any country has said that they
do not have the will to execute a judgment
we have never
had anyone say, 'We will not execute the judgment.'"
101. Some witnesses therefore argued that the fundamental
choice for Parliament was not whether or not to comply with the
judgment of the ECtHR in Hirst, but whether or not to denounce
the Conventionin Lord Neuberger's phrase, to break the
fetter linking us to the Convention system. Dr Pinto-Duschinsky
said: "If you are in the game, you play by the rules of the
game. If those rules are so burdensome and if the sacrifice is
if you are sacrificing the basis of our democracy,
one must not continue to play."
Legal effects of non-compliance
102. We have also explored some of the practical
legal consequences in respect of the Hirst judgment that
would flow from a decision either not to comply with the Hirst
judgment, or to denounce the Convention.
103. If the United Kingdom were to continue to enforce
its prohibition on prisoner voting, one issue that would arise
is whether the Court would seek to award claimants any form of
monetary compensation. Though the Court has yet to award claimants
compensation in any of the claims relating to the disenfranchisement
of prisoners that have been brought before it, this could change.
Nils Muiniek, the Commissioner for Human Rights at the Council
of Europe, warned the Committee that "the expiry of the deadline
for execution, which has already been extended several times,
means that the Court may now examine all of the UK cases on an
individual basis and award compensation to each of the applicants."
The Government told us, in respect of the existing 2,354 cases,
that "if the ECtHR resumed consideration of the adjourned
clone cases and decided to award £1,000-£1,500 in each,
the total liability in relation to those cases would be approximately
£2.4m-£3.5m". In addition to direct compensation
to prisoners, there is also the possibility of legal costs being
awarded to lawyers acting on behalf of claimants. Moreover, these
cases may prove to be the tip of the iceberg, since new liabilities
will arise in respect of every successive election.
104. When we put this risk to the Lord Chancellor,
he told us:
"As we stand at the moment, the Court has
expressly not awarded damages to any prisoner who has gone to
Strasbourg over this issue, and it is not possible for the UK
courts to apply compensation in such a situation. Therefore, I
am afraid that that question is theoretical. I will cross that
bridge if we come to it."
When he was pressed on the question of whether the
Government would pay any compensation awarded by the Court, he
replied: "Then you get into further interesting territory,
because the fines are not actually enforceable, and Parliament
might choose to say to the executive, 'You cannot pay them'".
The Lord Chancellor acknowledged that "if Parliament votes
[to retain the existing -prohibition], I am absolutely certain
that the clone cases will be reopened."
105. We have also considered whether, if the UK were
to take the more radical step of denouncing the Convention, it
would remove the UK's existing obligation to comply with the judgment
in Hirst. The answer appears to be that it would not.
106. Under Article 65(2) ECHR, "Such a denunciation
shall not have the effect of releasing the High Contracting Party
concerned from its obligations under this Convention in respect
of any act which, being capable of constituting a violation of
such obligations, may have been performed by it before the date
at which the denunciation became effective." In other words,
denunciation has no retrospective effect, and Mr Giakoumopoulos
accordingly argued that "the judgments of the Court that
have already been taken need to be executed and implemented, even
after the possible denunciation."
This view was endorsed by Lord Mackay: "There is provision
for denunciation of the convention, but the provision appears
to me to say that you cannot get out of an obligation that you
have already incurred by denouncing the convention after matters
107. In practice, were the UK to decide to leave
the entire Convention system, these two issues, of compensation
claims and of the continuing obligation to comply with the Hirst
judgment, could become largely academic, politically if not legally.
If the UK decided either to defy the Court or to leave the entire
Convention system, it is hard to envisage any future Government
abiding by any residual legal obligations arising out of membership.
Political consequences of withdrawal
from the Convention system
108. Finally, we have touched on some of the political
consequences of non-compliance and, in the most extreme scenario,
UK withdrawal from the entire Convention system. We agree with
Mr Davis, Mr Straw and Mr Raab that expulsion is unlikely. More
significant is that non-compliance would represent a major departure
from the UK's longstanding approach to its international obligations.
This was forcefully stated by the Attorney General, Dominic Grieve
MP: "It has been the settled policy of successive United
Kingdom governments that we adhere, or seek to adhereit
does not mean we do not sometimes breach our obligations, but
that we seek to adhereto our international legal obligations."
Mr Grieve acknowledged that the "reputational consequences
to the United Kingdom" of non-compliance would be "a
very serious consideration."
109. More direct consequences could be felt by the
Council of Europe itself. As Mr Jagland said, the UK, as well
as being a founder member of the Council of Europe, is commonly
regarded as "the best pupil in class". He feared that
a "bad example" set by the UK would encourage others:
"Many others will say, 'If the United Kingdom is doing that,
we can also do it'
It may be
the beginning of the
weakening of the Convention system and probably after a while
there may also be dissolution of the whole system."
While acknowledging that the difficulties faced by the UK, given
its good record of compliance, might suggest that there were problems
with the approach being adopted by the ECtHR,
he also pointed out that "for millions of people out there
in Europe, this Court and Convention system is protecting their
and highlighted investment and reform programmes in countries
such as Ukraine and Turkey. The UK, he argued, could not insulate
itself from such countries: "what happens in Ukraine or Russia
influences us and the whole continent."
110. Mr Jagland's final point was supported by the
Attorney General, who highlighted the recent case of Greenpeace
activists, some of them UK citizens, imprisoned in Russia: "potentially
some of their best arguments on proportionality may lie with the
European Convention on Human Rights and the protection which the
Convention may afford them. This is not a dialogue that just concerns
the UK; it has a much wider remit."
Conclusions of the Committee
111. We agree with the evidence of Lord Mackay
of Clashfern, that the principle of parliamentary sovereignty
is not an argument against giving effect to the judgment of the
European Court of Human Rights.
112. Parliament remains sovereign, but that sovereignty
resides in Parliament's power to withdraw from the Convention
system; while we are part of that system we incur obligations
that cannot be the subject of cherry picking.
113. A refusal to implement the Court's judgment
would not only undermine the international standing of the UK;
it would also give succour to those states in the Council of Europe
who have a poor record of protecting human rights and who may
draw on such an action as setting a precedent that they may wish
66 Jack Straw, Last Man Standing: Memoirs of a Political
Survivor (2012), pp 538-539 Back
HC Deb., 10 February 2011, col. 586 Back
HC Deb., 24 October 2012, col. 923 Back
Labour Party Press Release, Labour's policy is that prisoners
should not be given the vote, 22 November 2012 Back
A. V. Dicey, Introduction to the Study of the Law of the Constitution
Walter Bagehot, The English Constitution (1867) Back
A. V. Dicey, Introduction to the Study of the Law of the Constitution
Quoted in Robert Rogers and Rhodri Walters, How Parliament
Works, 6th Edition (2006), p 80 Back
Ibid, p 81 Back
See for instance Nevil Johnson, Reshaping the British Constitution
(2004), pp 129-133 Back
Erskine May, 24th Edition (2011), pp 183-184 Back
Ibid, pp 184-185. Sir Robert Rogers and Rhodri Walters
argue that the sovereignty of Parliament has also been limited
in practical ways in recent years by the passing of the Human
Rights Act and devolution to Scotland and Wales, and, with some
qualifications, to Northern Ireland (see R. Rogers and R. Walters,
How Parliament Works, 6th Edition, (2006), p 82). Back
That is to say, to make a formal announcement of the ending of
the UK's adherence to the Treaty. Back
Tom Bingham, The Rule of Law, (2010), p 110 Back
Q 211 Back
Q 179 Back
Smith and Grady v United Kingdom (1999), 29 EHRR 493 and
Lustig-Prean and Beckett v United Kingdom (2000), 29 ECHR
Lustig-Prean and Beckett v UK, paragraph 71 Back
HC Deb., 9 May 1996, cols. 510-511 Back
Q 179 Back
Q 118 Back
Written evidence from the Equality and Human Rights Commission Back
Lord Hoffmann, 'The Universality of Human Rights', Judicial
Studies Board Annual Lecture, 19 March 2009 Back
Q 93 Back
See above, paragraph 34 Back
Q 36 Back
Q 211 Back
Animal Defenders International v United Kingdom (2013)
ECHR 362 Back
Q 211 Back
Q 58 Back
Lord Sumption, 'The Limits of Law', 27th Sultan Azlan Shah Lecture,
20 November 2013 Back
Lord Judge, 'Constitutional change: unfinished business', 4 December
2013, paragraph 47 Back
Q 110 Back
Written evidence from Sir Francis Jacobs QC Back
The Brighton Declaration included agreement to add two new protocols
to the Convention, which are currently open for signature. The
first of these (Protocol 15) provides for the inclusion of a new
recital in the preamble to the Convention, "Affirming that
the High Contracting Parties, in accordance with the principle
of subsidiarity, have the primary responsibility to secure the
rights and freedoms defined in this Convention and the Protocols
thereto, and that in doing so they enjoy a margin of appreciation,
subject to the supervisory jurisdiction of the European Court
of Human Rights established by this Convention". Protocol
16 provides for non-binding advisory opinions, to be sought by
states from the Grand Chamber, in the context of a case before
a domestic court or tribunal. Back
Q 186 Back
R v Secretary of State for the Home Department Ex parte Simms
(1999) 3 WLR 328 Back
Lord Neuberger of Abbotsbury, 'Who are the Masters Now?', 6 April
Q 114 Back
QQ 110-111 Back
Q 43 Back
Attributed to Dr Thomas Fuller, in 1733: "Be you never so
high, the law is above you". Back
Q 43 Back
Q 49 Back
Lord Judge, 'Constitutional change: unfinished business', 4 December
2013, paragraph 47; see also the remarks of Lord Justice Laws
on the obligation imposed under Article 46, in his lecture 'The
Common Law and Europe', given on 27 November 2013. Back
Q 204 Back
Cabinet Office, Ministerial Code, May 2010, para 1.2 Back
Q 209 Back
Q 226 Back
Written evidence from David Davis MP, Jack Straw MP and Dominic
Raab MP Back
Q 178 Back
Q 61 Back
Written evidence from Nils Muiniek Back
Q 231 Back
Q 180 Back
Q 111 Back
QQ 193, 199 Back
Q 178 Back
Q 185 Back
Q 179 Back
Q 178 Back
Q 193 Back