The Government’s Independent Review of the Human Rights Act Contents

3The relationship between the European Court of Human Rights and the Domestic Courts: Section 2 Human Rights Act

Introduction

26.This chapter of the Report focusses on the relationship between the domestic courts and the ECtHR, and specifically on section 2 HRA, the concept of margin of appreciation and the practice of judicial dialogue. In order to fully understand the context and operation of section 2, it is necessary to consider:

a)How Convention rights were enforced in the UK prior to the HRA;

b)The operation of section 2 HRA, its interpretation, and the extent to which domestic Courts feel free to depart from Strasbourg case-law;

c)The relationship between the HRA and the margin of appreciation; and

d)How judicial dialogue has been working in practice.

Box 1: IHRAR’s Terms of Reference relating to the relationship between the courts18

The relationship between domestic courts and the European Court of Human Rights (ECtHR)

Under the HRA, domestic courts and tribunals are not bound by the jurisprudence of the ECtHR, but are required by section 2 to “take into account” that jurisprudence (in so far as it is relevant) when determining a question that has arisen in connection with a Convention right.

The Review should consider the following questions in relation to this theme:

a)How has the duty to “take into account” ECtHR jurisprudence been applied in practice? Is there a need for any amendment of section 2?

b)When taking into account the jurisprudence of the ECtHR, how have domestic courts and tribunals approached issues falling within the margin of appreciation permitted to States under that jurisprudence? Is any change required?

c)Does the current approach to ‘judicial dialogue’ between domestic courts and the ECtHR satisfactorily permit domestic courts to raise concerns as to the application of ECtHR jurisprudence having regard to the circumstances of the UK? How can such dialogue best be strengthened and preserved?

Source: Independent Human Rights Act Review: Terms of Reference

Section 2 Human Rights Act

Box 2: Section 2(1) HRA: Interpretation of Convention rights

The HRA provides:

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

[ … ]

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

Source: Human Rights Act 1998, Section 2

27.Section 2 governs the relationship between the judgments of the ECtHR in Strasbourg and the domestic courts of the UK. It strikes a careful balance between respect for the ECHR, and the institutions that uphold it, and respect for one of the pillars of the UK constitution—the judiciary.

28.Within the domestic legal systems of the UK, courts are strictly required to follow the judgments of more senior courts even if they disagree with them. Those judgments set a binding precedent. The HRA specifically provides that the same system of binding precedent does not apply to the judgments of the ECtHR. The key element of section 2 is that any court or tribunal considering a question that has arisen in connection with a Convention right “must take into account” judgments, decisions or opinions of the ECtHR but only “so far as… relevant to the proceedings in which that question has arisen”.19 This phrase determines that domestic courts are bound to consider relevant Strasbourg case law when making any decision that relates to Convention rights, but they are expressly not bound to follow it.

29.Such a requirement to have regard to relevant jurisprudence is an essential part of properly assessing the application of Convention rights to a given case. As Lady Hale told us, it is “an integral part of the [HRA]”.20

30.The ECtHR President Robert Spano, and Judge Tim Eicke, told us that this relationship is mutually beneficial. Should a claim reach the ECtHR, our domestic courts’ consideration of the legal issues in its judgment helps Strasbourg to understand the UK context, reducing the likelihood of adverse findings. They told us that:

“Domestic judgments frequently set out crucial aspects of the case including the detail of the applicable domestic law, the competing interests at play as well as any potential domestic sensitivities which may be relevant to the margin of appreciation. When the domestic decision-making is undertaken by reference to Strasbourg case-law and principles this is extremely helpful for the Court. As a matter of principle, we can probably say that having the benefit of a careful and detailed domestic engagement with the Convention principles at the national level is likely to reduce the likelihood of finding a violation against the respondent State in question”.21

31.The requirement in section 2 HRA that the court must take into account judgments relevant to the proceedings before it is eminently sensible. It would be bizarre for a court to take into account any factor that is irrelevant to the proceedings in question–equally it would seem irresponsible for a court not to take into account a judgment that was relevant to the proceedings before it.

Courts’ interpretation of section 2

32.Since the HRA came into effect in October 2000 the courts have interpreted section 2 HRA and its effect. In a 2003 judgment of the House of Lords, Lord Slynn stated that while section 2 “does not provide that a national court is bound by” the decisions of the ECtHR, “[i]n the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.”22 This was followed by the case of Ullah in which Lord Bingham said “a national court subject to … section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law.”23 However, this has not prevented the domestic courts from departing from Strasbourg case law when they have seen fit–as President Robert Spano and Judge Tim Eicke said, “the UK superior courts can and do take an independent view on specific case-law issues where they consider it necessary to do so”.24

33.Overwhelmingly, respondents to our call for evidence, considered that the operation of section 2 HRA struck the right balance. As Equally Ours told us:

“ … the duty to take into account the [ECtHR] jurisprudence has been used in an appropriate and effective way, that finds the right balance between keeping up to date with developments in the case law and applying Convention rights with sensitivity to the UK context. This has allowed for legal certainty while keeping our rights up to date.”25

Departure from Strasbourg case law

34.Despite their recognition of the need to follow ‘clear and consistent’ Strasbourg case law, the courts have rejected any suggestion that section 2 HRA prevents them departing from ECtHR jurisprudence where appropriate. Indeed, as Professors Helen Fenwick and Roger Masterman of Durham University set out in their evidence there are many examples where “domestic courts have chosen not to follow, or apply, European Court of Human Rights decisions in a range of circumstances”.26

35.By way of example, in R v Horncastle, the Supreme Court chose not to follow a decision of the ECtHR concerning the use of hearsay evidence in criminal proceedings, on the basis that the ECtHR had not fully appreciated the protections in place in the UK system, and therefore had “resulted in a jurisprudence that lacks clarity.”27 Lord Phillips (giving the judgment of the full seven member Supreme Court) said:

“The requirement to “take into account” the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. This is such a case.”

36.As Professors Masterman and Fenwick said in their evidence to the Committee, the current judicial approach to the interpretation of s.2(1) has “clear benefits”:

“It respects the position of the European Court of Human Rights as the authoritative interpreter of the Convention’s requirements while allowing some flexibility in the translation of those requirements into domestic law. It encourages critical, rather than mechanical, engagement with the Convention jurisprudence, and as a result promotes dialogues between domestic courts and the European Court of Human Rights.”28

37.The requirements of section 2 HRA strike the correct balance in that the UK courts take into account relevant considerations, but are not bound by them. The domestic courts are not unduly constrained by section 2 HRA as cases where the domestic courts have departed from Strasbourg case-law illustrate. Importantly, even in these cases the domestic courts do have regard to relevant ECHR case-law, so as to best consider how the applicable human rights standards should be applied in the UK context. It is only by UK courts having appropriate regard to the relevant case-law that they can engage with it appropriately, reach the correct results and engage in fruitful judicial dialogue with the Strasbourg Court.

38.If domestic courts did not have to take due account of Strasbourg jurisprudence that was relevant to the case before them this would risk domestic cases being decided without due regard to the relevant human rights standards and case law. This in turn would simply mean more successful cases against the UK in Strasbourg. Therefore, any attempt to reduce the extent to which domestic courts are required to ‘take into account’ caselaw of the ECtHR relevant to the case before them—for example were section 2 to say that a judge “may” take ECtHR case law into account rather than “must”—would inevitably lead to greater numbers of successful appeals to the ECtHR in Strasbourg, as well as poorer enforcement of human rights for victims in the UK.

Taking into account ECtHR judgments concerning other States

39.Even in the domestic legal systems, where lower courts are required to follow the rulings of more senior courts, binding precedent will only apply where the facts of the original case are sufficiently similar to those that appear in new cases. While a legal principle may be binding, it still needs to be applied to the distinct circumstances of an individual case. The courts are very much alert to this and recognise that one set of circumstances are not the same as another–“In law, context is everything.”29

40.Domestic courts are thus familiar with this approach of distinguishing between cases and apply the same approach to Strasbourg judgments. Where the circumstances of an individual case, and the national context in which that case arose, are markedly different to the circumstances pertaining in the case before the domestic court, the value of the Strasbourg judgment will be limited. The most a UK court would normally extract from such a judgment would be a statement of principle which it is then able to apply to the facts before it. As Lady Hale told us:

“Where the context is so different from the context in the United Kingdom… they are of less assistance than ones that come from countries where the context is comparatively similar.”30

Does section 2 limit our courts?

41.UK courts have also considered whether section 2 HRA permits them to interpret the protections of the Convention as requiring a higher or more far-reaching standard of protection than has been established in the Strasbourg Court. In doing so, the courts are conscious that a defendant public authority cannot appeal to Strasbourg if it considers that the domestic courts have applied too generous an interpretation of ECHR rights.

42.However, it is unreasonable for the UK courts to be restricted to protecting rights only in circumstances where similar facts have happened to arise in a previous case before the ECtHR. Such a restrictive interpretative approach would run counter to normal interpretative techniques and could lead to perverse results.

43.The traditional approach is for domestic courts to avoid going further than the ECtHR. Lord Bingham, in the case of R (Ullah) v SSHD, said:

“It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

44.In the case of Al-Skeini, Lord Bingham’s cautionary words were emphasised by Lord Brown, who suggested that the “last sentence could as well have ended ‘no less, but certainly no more.’” This caution has been reflected in many subsequent judgments.

45.Nevertheless, there have been some instances in which the UK courts have felt able to apply the Convention rights in situations where it was not yet clear how the Strasbourg Court would rule. Lady Hale gave us the example of Rabone v Pennine Care NHS Trust in which the Supreme Court considered whether Article 2 ECHR (the right to life) should impose an operational duty to protect informal psychiatric patients who were at a real and immediate risk of suicide.31 The ECtHR had recognised that such an obligation existed in respect of persons held under state control, but had not yet considered whether this extended to those who were not detained. The Supreme Court concluded that Article 2 ECHR did impose such an obligation. In his speech, Lord Brown sought to clarify, or qualify, the meaning of Lord Bingham’s phrase in the case of Ullah:

“What the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this … If, however, a domestic court is content … to decide a Convention challenge against a public authority and believes that such a conclusion flows naturally from existing Strasbourg case-law (albeit that it could be regarded as carrying the case-law a step further), then in my judgment it should take that further step. And that, indeed, is to my mind precisely the position in this very case”.

46.As Lady Hale told us, in a similar case, a few weeks later, the ECtHR reached the same conclusion as the Supreme Court’s interpretation, thus confirming that the Supreme Court “had correctly anticipated what Strasbourg would do in that situation.”32

47.In considering the extent to which the domestic courts should be restricted to merely keeping pace with the Strasbourg case-law, the current balance that has been struck by the case law is sensible. It enables domestic courts to apply the Convention to the domestic context, with their greater understanding of the domestic system, whilst also ensuring that cases that would be a significant step forward in interpreting a Convention right would need to go to Strasbourg. It would seem unhelpful to seek to reopen this careful balance.

Impact of domestic court’s consideration of human rights compatibility on the margin of appreciation afforded to the UK

Margin of appreciation

48.The margin of appreciation is a doctrine developed by the ECtHR in its case-law, which forms an important element of the relationship between the Strasbourg court and the courts of the State Parties to the ECHR. It is a recognition that in certain contexts national authorities have available to them a degree of discretion in their choice of policy when regulating the exercise of a Convention right. Where the Strasbourg court accepts that a state is acting within its margin of appreciation it will not further scrutinise the merits of the particular decision in question. Underlying this concept is a recognition of the difficulties in applying a single set of rights to a broad and diverse group of nations and legal regimes, and an acknowledgement that certain factors can be particularly important in a particular domestic or national setting and therefore are best determined by national institutions, such as parliaments or courts, who best understand local sensitivities.33

49.There are many examples of the margin of appreciation being applied by the ECtHR in respect of the United Kingdom. For example:

a)In Tamiz v UK34 the ECtHR rejected an applicant’s claim that his Article 8 ECHR right to respect for his private life had been violated by the English court’s refusal to allow him to bring a libel claim against Google. The ECtHR accepted that when balancing a claimant’s Article 8 ECHR right to private and family life against the Article 10 ECHR rights (freedom of expression) of a defendant, the UK’s margin of appreciation was a wide one and there were no strong reasons to justify the ECtHR substituting its views for those of the domestic court.

b)In McDonald v United Kingdom35 the ECtHR found that the Article 8 ECHR rights of a disabled elderly woman were not violated by a local authority requiring her to use incontinence pads rather than providing her with night-time care, recognising that “states are afforded a wide margin of appreciation in issues of general policy, and that margin is particularly wide when the issues involve an assessment of the priorities in the context of the allocation of limited state resources.”

Impact of domestic courts’ consideration of human rights compatibility on the margin of appreciation

50.The doctrine of the margin of appreciation is derived from the principle of the ‘subsidiarity’ of the Convention machinery–i.e. that “the task of ensuring respect for the rights enshrined in the Convention lies first and foremost with the authorities in the Contracting States rather than with the Court [ECtHR]. The Court can and should intervene only where the domestic authorities fail in that task.”36

51.Since the entry into force of the HRA, the ECtHR has been slow to adopt a different conclusion to that taken by the UK domestic Courts. This is because it has recognised that those UK Courts, which are best placed to understand the local particularities, have properly considered the application of Convention rights in the domestic context. As President Robert Spano and Judge Tim Eicke said in their evidence to us:

“ … the [ECtHR] has been able to rely on the UK courts’ specific reasoning as to compliance with the Strasbourg principles and case-law; this is because the UK domestic courts and the Court are systematically applying the same set of principles and Strasbourg case-law by reference to the same text. Domestic judgments frequently set out crucial aspects of the case including the detail of the applicable domestic law, the competing interests at play as well as any potential domestic sensitivities, which may be relevant to the margin of appreciation … .As a matter of principle, we can probably say that having the benefit of a careful and detailed domestic engagement with the Convention principles at the national level is likely to reduce the likelihood of finding a violation against the respondent State”.37

Box 3: Subsidiarity & judicial dialogue: Austin v UK

The case Austin v UK [2012] related to the use of kettling in police cordons around Oxford Street during the 2001 May Day riots and whether this was covered by the right to liberty in Article 5 ECHR. The Supreme Court looked extensively at the (limited) ECtHR caselaw on the topic, thus showing that it had carefully considered the relevant case law. The ECtHR judgment contained a very extensive analysis of the UK domestic courts’ consideration of the case and made clear the weight given to the domestic courts findings:

“ … the Court observes that within the scheme of the Convention it is intended to be subsidiary to the national systems safeguarding human rights (see A & Ors v UK). Subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19. … As a general rule, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts … .”.38

52.The ECtHR is more likely to grant a wide margin of appreciation to the State where the ECtHR has confidence in the way in which the national courts address human rights issues arising before them.39 As President Robert Spano and Judge Tim Eicke told us:

“Analysis of Strasbourg case-law by UK domestic courts and in particular its superior courts shows an in-depth understanding of the Court’s case-law… When the national authorities have demonstrated in cases before the Court that they have taken their obligations to secure Convention rights seriously the Court may apply the concept of subsidiarity more robustly…”

“The fact that there are so few violations found against the UK would also argue in favour of the fact that the UK courts are successfully applying the Convention at the domestic level… the number of applications brought to Strasbourg against the UK is exceptionally low (for the last four years the lowest per head of all of the 47 Member States).”40

53.Paul Mahoney, when the UK Judge at the ECtHR, noted the implications for admissibility of proper and careful consideration by the domestic courts:

“Some Strasbourg judges—and up till now they would seem to be the majority—take the view that if the independent and impartial national courts, who are better acquainted with the democratic society of their country, have properly and fully considered the contested legal measure on the basis of the relevant human rights standards, there will need to be strong reasons for them to substitute their own, different assessment for that of the national judges.”41

Box 4: Subsidiarity: Ndidi v UK

President Robert Spano and Judge Tim Eicke provided us with the example to Ndidi v UK (2017) relating to the right to private and family life under Article 8 ECHR. This case:

“established the principle that where domestic courts have carefully examined the facts, applied the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interest against the more general public interest in the case, the Strasbourg Court would not substitute its own assessment of the factual details and/or the balance struck for that of the competent national authorities, unless there were strong reasons to do so.”42

54.In the vast majority of cases that reach Strasbourg where there might be a question as to the extent of the margin of appreciation to be accorded to the UK, the UK Courts play a core role in setting out, to the ECtHR, how the domestic system works and how rights are protected within it.43 As such, the domestic courts often playing a crucial role in ensuring that the UK is accorded the full extent of the margin of appreciation available to it, through their efforts to set out the national context and how rights are protected within it.

Box 5: Margin of appreciation & judicial dialogue: R v Horncastle and Al-Khawaja v the United Kingdom - hearsay evidence

R v Horncastle44 is one example where the domestic Courts went to considerable effort to set out the particularities of the law relating to hearsay and how the necessary protections could be found in that law, so that the UK could be accorded the full margin of appreciation in how it ensured the right to a fair trial through its law of criminal evidence.

We heard how the Supreme Court went to considerable effort to help the ECtHR understand the relevant surrounding context in the criminal law of England and Wales in relation to hearsay, in order to avoid a finding that our rules on the admissibility of hearsay evidence were incompatible with fair trial rights.45 As Lady Hale set out:

“In the case of Horncastle, it looked as it our rules of the admissibility of hearsay evidence, which was basically previous witness statements in criminal cases, might be declared incompatible in Strasbourg. We went to a huge amount of trouble to explain why criminal trials in the UK had enough safeguards in them to mean that somebody was not at risk of being wrongfully convicted if, for example, the written statements of people who had died were admitted in the criminal case… it has enabled Strasbourg to understand more about the surrounding context in UK law”.46

President Robert Spano and Judge Tim Eicke told us that as a result “ … the Grand Chamber adjusted its position on a specific aspect of the right to a fair trial (rules on the evidence of witnesses who are absent from trial) in direct response to the UK Supreme Court’s judgment in Horncastle (2009)”.47

55.The role of the UK domestic courts is crucial to ensure that the right result is reached in an individual case, as well as to ensure that Convention rights are applied to the UK in a way that best fits the legal systems of the UK. Their judgments show a detailed understanding of how human rights are protected in the balances struck within the UK’s legal systems.

Box 6: Margin of appreciation & judicial dialogue: Animal Defenders International v UK - political advertising

The question at issue in Animal Defenders International v UK [2013],48 was whether the prohibition on paid political advertising in UK law was a disproportionate interference with the freedom of expression guaranteed by Article 10 ECHR. Political advertising restrictions had previously been found by the ECtHR to interfere with the right to free speech in other Council of Europe States. As Lady Hale told us, this was a case where the domestic courts played a crucial role in ensuring that the particularities of the UK system on political funding and political advertising were fully understood and that the full extent of the margin of appreciation could be enjoyed by the UK on this sensitive matter. Following the domestic court’s efforts to explain the peculiarities of the UK system, the Strasbourg court was convinced by the reasoning of the House of Lords (as it then was) to find that the legislation in question was compatible with the Convention, despite the existing case law that suggested it might not be.49

The ECtHR considered the domestic examination of the issues and stated that it “attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process”.

What was even more remarkable is that this is a case where the Minister did not certify (under s. 19 HRA) that the legislation was compatible with ECHR rights, due to the existing case-law. It was therefore up to the UK Courts to set out why they thought it was compatible (and within the UK margin of appreciation)–reasoning that was then accepted by the ECtHR.

This shows how, having been assisted by the careful consideration of the relevant issues and case law by the UK’s domestic courts, the ECtHR was able to take into consideration the specific nature of the political advertising ban in the UK context, accord the UK a specific margin of appreciation in respect of that issue, and was therefore able to depart from case-law that had been applied in other national contexts.

56.The UK courts play a crucial role in ensuring that the UK is accorded the full extent of the margin of appreciation available to it, through their efforts to set out how rights are protected within the national legal context.

57.Any steps taken to minimise the ability of the UK domestic courts to properly consider the application of the Convention rights in the UK context would risk the ECtHR having less confidence in the UK’s systems and therefore according it less margin of appreciation. We therefore cannot see how it would be advantageous to the UK to weaken the role of the judiciary in upholding human rights–either from the perspective of individual citizens or the system overall.

How domestic courts apply the margin of appreciation

58.The concept of margin of appreciation relates principally to the relationship between the UK (whether judiciary, legislature or executive) and the organs of the Council of Europe–embodying an understanding that national bodies should have some latitude/discretion in how best to find the best way of protecting rights in national or local situations.

59.The domestic courts need to have due regard to the margin of appreciation when taking into account relevant ECtHR case-law. They will need to assess the extent to which that case-law could be relevant to the situation before them–or whether it can be distinguished for some reason, for example because of the peculiarities or particular balances inherent in the national system.

60.However, the UK courts are already familiar with a similar concept, that of ‘judicial deference’, which broadly means that they will defer to the executive and the legislature for matters of policy and will be reluctant to interfere except to the extent of illegality or irrational behaviour. Thus, the UK courts are not new to the issues involved in margin of appreciation assessments as they employ similar concepts when according the executive and the legislature a certain latitude in making policy decisions that they are uniquely or better placed to determine.

61.There are other cases, where the domestic courts have to apply the law to the facts before them, but where the situation might be on the cusp of what could fall within a permitted margin of appreciation. Sometimes this puts the courts in an uncomfortable situation–especially in cases where it might be more proper for Parliament to have acted on an issue, but, for whatever reason, it has not done so. The courts, in contrast, have to apply the law and determine a case that is properly brought before them and, unlike Parliament, do not have the flexibility of determining whether or not to consider an issue. We heard how, in cases that are on the cusp of what could fall within a permitted margin of appreciation, the courts are generally cautious.

62.Lady Hale provided us with two examples that the Supreme Court had to grapple with where Convention rights were engaged, but where the State would likely be accorded a very significant margin of appreciation: (1) The Northern Ireland abortion case50 in which the Supreme Court had to consider whether the ECtHR would regard the matter as being within the UK’s margin of appreciation, and if it did, what then was the role for the Supreme Court; and (2) the Nicklinson51 case on assisted dying:

“The majority of us decided that we would be abdicating the responsibility that the Human Rights Act gave us if we did not try to make up our own minds about the situation, because the Human Rights Act says that public authorities must act compatibly with the Convention rights. If the legislation obliges them to act incompatibly, we make a declaration of incompatibility. Are we not ducking our responsibility if we do not make up our own minds about what the correct situation is?

“The other case was the Nicklinson assisted suicide case… Clearly there were some Strasbourg principles that were developing, but again it would probably have regarded it as within the margin of appreciation for the United Kingdom. Of course, the assisted suicide case was one we all would have wanted Parliament to debate thoroughly and to decide, and basically Parliament kept on ducking the issue. Some of us felt that we had to try to supply an answer, but others felt differently. This is the benefit of a collegiate court where differences of opinion can be voiced and argued through.”52

63.It is notable that in these two cases, the Court was reluctant to reach too forceful a conclusion, indicating, in both, that a political solution could be preferable. We discuss matters relating to the proper respective roles for Parliament, the courts and the executive, in protecting human rights, in more detail in chapter 4.

64.The UK courts are used to applying the doctrine of judicial deference to accord the executive and the legislature a certain latitude in making policy decisions that they are uniquely or better placed to determine. The UK courts are therefore very well placed to apply the margin of appreciation and they perform a central role in ensuring that the UK is accorded the full extent of the margin of appreciation available to it.

65.Moreover, in the rare cases where a political (rather than a legal) solution would be preferable, and where a wide margin of appreciation would likely be accorded to the State, the Courts have been cautious and have sought primarily, to encourage the other organs of State to fulfil their roles in the protection of human rights within the UK system. We welcome this cautious approach by the courts.

Judicial dialogue

66.Judicial dialogue is a term often used to refer to two different forms of dialogue:

a)Informal judicial dialogue through informal contact such as discussions between judges; and

b)Formal judicial dialogue through judgments–whereby courts set out their views on the law and the way that the law should be applied, often taking into account and testing the views of other courts.53

Informal judicial dialogue: discussions between judges

67.As President Robert Spano and Judge Tim Eicke told us, there is extensive informal dialogue between the UK and ECtHR judges, which takes place through various means:

a)Regular bilateral meetings between small groups of UK judges (from the three domestic UK jurisdictions and the Supreme Court) and judges from the ECtHR.

b)The UK Judge on the ECtHR, Tim Eicke, frequently visits the UK and engages in informal dialogue with the judiciary in the three UK jurisdictions.

c)The Superior Courts Network (“SCN”), including through its annual meeting of national focal points in Strasbourg.

d)A delegation of senior UK judges (frequently including the heads of the respective jurisdictions) go to Strasbourg each year to participate in the ECtHR’s formal Opening of the Judicial Year (which includes informal meetings with members of the ECtHR and its registry).

e)The national judge (as well as the President or his representative) of the ECtHR attending the Opening of the Legal Year at Westminster Abbey, as well as the Lord Chancellor’s breakfast.54

68.As Lady Hale told us she thought there was “plenty of dialogue and opportunity for informal dialogue at present”.55 It is clear that there are many opportunities for informal exchanges for UK and ECtHR judges to discuss issues of mutual interest to better understand each-others legal systems, legal developments and to improve judicial mutual understanding. Informal judicial dialogue seems to be working very well at present.

Formal Judicial dialogue: judgments

69.The most well-known form of judicial dialogue is in the form of judgments–and this has also received the most attention from academics and commentators. The UK (and UK lawyers) have brought some of the leading cases before the ECtHR to clarify the boundaries of Convention rights. Since the entry into force of the HRA in 2000 judicial dialogue has increased as UK judges, through their judgments, are better able to take due note of, and analyse, ECHR case-law.

Box 7: The role of judicial dialogue: Vinter v UK & Hutchinson v UK - Whole Life Orders for Prisoners

President Robert Spano and Judge Tim Eicke gave us the example of how judicial dialogue worked in the cases considering whether whole life orders for prisoners were compatible with human rights:

“Another example of this type of judicial dialogue may be seen in the cases on whole life orders for prisoners. Firstly there was the Strasbourg Court’s judgment in the case of Vinter and Others v. the United Kingdom [GC] … 2013 where the [ECtHR] also found inter alia that the domestic law concerning the prospect of release for life prisoners in England and Wales was unclear. A specially constituted Court of Appeal which considered this judgment in R v McLoughlin examined the Court’s conclusions. It set out how domestic law would treat applications for release and declared that it did provide offenders with a clear hope or possibility of release in exceptional circumstances (a power which, under the relevant legislation, is the Secretary of State’s to exercise). In Hutchinson v. the United Kingdom [GC]. No 57592/08, 17 January 2017 the Court found that the imposition of a ‘whole life order’ for murder did not violate Article 3 of the Convention”.56

Box 8: UK judicial reasoning relied on in cases relating to other States: S., V. and A. v. Denmark

As President Robert Spano and Judge Tim Eicke told us “the sophisticated analysis by the UK domestic courts of the case-law of the [ECtHR] is indeed relied upon in its judgments against other countries. Sometimes the reasoning is discussed by the judicial formation even if that is not expressly reflected or recorded in the final judgment. Sometimes, however, there is direct and express reliance on judgments of the higher courts of the UK in the judgment itself.”

They provided us with the example of a Danish case, S., V. and A. v. Denmark,57 concerning the detention of football supporters with a view to preventing violence. In that case the Grand Chamber departed from the approach that the ECtHR had taken in the previous case of Osterdorf v Germany, having considered the reasoning of the UK Supreme Court in the separate case of R v The Commissioner of Police for the Metropolis.

“The Grand Chamber relied upon the judgment of the UK Supreme Court in R v The Commissioner of Police for the Metropolis… in which the [ECtHR’s] case-law on Article 5(1)(b) was found to be inconclusive … The UK Supreme Court, having analysed the [ECtHR’s] case-law… concluded that the detention was lawful under Article 5(1)(c). The Grand Chamber of the Court, having considered in detail its own case law as well as the reasoning of the UK courts, consequently changed its own approach also to consider the issues raised under Article 5(1)(c) (rather than under Article 5(1)(b) as the Court had done in Ostendorf)”.58

70.It is clear that there is a very healthy state of judicial dialogue as between the ECtHR and the UK judiciary. We agree with President Robert Spano and Judge Tim Eicke when they said, “our view is that both the formal and the informal judicial dialogue is going extremely well and it is rather difficult to identify any particular area for improvement”. Such a sentiment was also echoed by Lady Hale in her evidence to the Committee. Both informal and formal judicial dialogue is clearly working well. In particular, the operation of section 2 HRA clearly allows for very healthy state of judicial dialogue in the form of judgments. It would therefore seem prudent not to change these successful practices; in our opinion too much risks being lost by any amendments to section 2 HRA.

Conclusion

71.As a result of the HRA, a human rights case is first determined by UK judges, who:

a)understand the complex and subtle balances at work within the relevant UK legal systems;

b)understand how human rights are given effect in those legal systems;

c)apply a considered analysis of how the relevant fundamental protections, including ECHR rights and relevant case-law apply to the case;

d)apply that understanding to the facts of the case, explaining their reasoning and how the balances are met within those legal systems in their judgment; and

e)are able to dispose of obvious human rights breaches without wasting time and money and extending suffering by needing to litigate in Strasbourg.

72.As a result of the above and because UK judgments show the detailed judicial reasoning in the judgments:

a)Fewer cases from the UK are litigated before the ECtHR than was the case before the HRA;

b)ECtHR judges have been able to rely on the reasoning in UK judgments to better understand how the national UK legal systems protect human rights;

c)If a case reaches the ECtHR, there is less of a risk of adverse ECtHR judgments arising due to any misunderstanding as to how the domestic legal system protects human rights;

d)The margin of appreciation accorded to the UK is significant as there is confidence in the national processes established by the HRA, including the national courts’ role in applying human rights, following careful consideration of any case-law relevant to the case before it;

e)Where there are differences of opinion, there are clear and constructive mechanisms (through ‘judicial dialogue’) to resolve any differences of opinion based on misunderstandings.

73.Any change to the current operation of section 2 would be unnecessary, unhelpful and counterproductive.

18 These questions were also replicated in IHRAR’s own call for evidence - Independent Human Rights Act Review: Call for Evidence. Which additionally noted, “We would welcome any views on how the relationship is currently working, including any strengths and weaknesses of the current approach and any recommendations for change”.

19 The same obligation applies in respect of (a) opinions and decisions of “the Commission”, a body that ceased to exist in 1998 but which used to form the first part of a two-tier structure, filtering cases before they reached the Court; and (b) decisions of the Committee of Ministers (the Council of Europe’s decision-making body, made up of the ministers of foreign affairs of each member State or their permanent diplomatic representatives in Strasbourg) relating to the execution of final judgments from the Court.

21 European Court of Human Rights (HRA0011)

23 R (on the application of Ullah) v Special Adjudicator [2004] 2 AC 323, at paragraph 20.

24 European Court of Human Rights (HRA0011)

25 Equally Ours (HRA0029)

26 Professor Roger Masterman (Professor of Constitutional Law at Durham Law School, Durham University); Professor Helen Fenwick (Professor of Law at Durham Law School, Durham University) (HRA0007). See also the examples they provide at paragraph 7 of their evidence.

27 R v Horncastle [2009] UKSC 14

28 Professor Roger Masterman (Professor of Constitutional Law at Durham Law School, Durham University); Professor Helen Fenwick (Professor of Law at Durham Law School, Durham University) (HRA0007), paragraph 10.

29 Lord Steyn in R v SSHD, ex p. Daly [2001] UKHL 26

31 [2012] 2 AC 72

33 The margin of appreciation may also play a significant role at the admissibility stage, when the ECtHR screens out cases that are ‘manifestly ill-founded’. This serves to massively reduce the numbers of cases that ever reach a full hearing. In 2019 the ECtHR decided 359 applications from the UK, 347 of which (approximately 97%) were declared inadmissible.

34 Tamiz v UK, ECHR, 2017, Application No. 3877/14.

35 McDonald v UK, ECHR, 2014, Application No. 4241/12.

36 As defined by in the European Court of Human Rights, Interlaken Follow Up, Principle of Subsidiarity, June 2010

37 European Court of Human Rights (HRA0011)

38 Austin v UK [2012], ECHR, paragraph 61

39 Paul Mahoney, when Judge at the ECtHR, noted that: “There will be less temptation for the Strasbourg Court to engage in micro-management of individual situations or even in reviewing the preceding policy-making and, thus, less inclination to disturb the rulings of the national courts if the national courts are visibly operating domestic remedies with an eye to compliance with Convention standards and case-law.” The relationship between the Strasbourg court and the national courts, Paul Mahoney Law Quarterly Review L.Q.R. 2014, 130 (Oct), 568–586

40 European Court of Human Rights (HRA0011)

41 Paul Mahoney, The relationship between the Strasbourg court and the national Courts, Law Quarterly Review, L.Q.R. 2014. He went on to provide the example of the ECHR case Countryside Alliance v UK [2009] relating to the challenge to the statutory ban on fox-hunting which stated: “[T]he domestic courts have given the greatest possible scrutiny to the applicants’ complaints under the Convention …Serious reasons would be required for this Court to depart from the clear findings of those courts.”

42 European Court of Human Rights (HRA0011)

43 See, for example, Q21, [Lady Hale]

44 R v Horncastle and others [2009] UKSC 14

45 Q20. See also Cambridge Centre for Public Law (HRA0014) at paragraph 13

47 European Court of Human Rights (HRA0011)

48 Application no. 48876/08

53 European Court of Human Rights (HRA0011). As President Robert Spano and Judge Tim Eicke said “Formal dialogue is constructive as it leads to a conversation through judgments usually resulting in the issue being resolved over time.”. They provided the example of the Charlie Gard case to highlight how judges can at times communicate with each-other quite directly through judgments/orders.

54 European Court of Human Rights (HRA0011)

56 European Court of Human Rights (HRA0011)

58 European Court of Human Rights (HRA0011)




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