by Baroness Hale of Richmond^*

(2013) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

While human rights law has a long tradition in English law, the adoption of the European Convention on Human Rights and its more recent implementation through the Human Rights Act 1998 have changed the landscape of British constitutional law. The present article focuses on the interplay in the application and interpretation of the Convention by the European Court of Human Rights and of the Human Rights Act through courts in the UK. Comparing different notions of case law, precedent, and diverging interpretations in Strasbourg and in the UK, the article shows how Strasbourg case law and UK case law mutually influence each other in the development of human rights law, and also how this affects the relationship between parliament, government and the judiciary.

1. Introduction

The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215. The doors into the library of the Supreme Court of the United Kingdom are engraved with a facsimile of the copy kept in the British Library, with one of its two most important clauses picked out: ‘To no man shall we sell, or deny, or delay, right or justice’ (article 40). The other is: ‘No free man shall be taken or imprisoned or dispossessed, or outlawed or exiled, or in any way destroyed, nor shall we go upon him, nor shall we send against him, except by the lawful judgment of his peers or by the law of the land’ (article 39). Thus it became the duty of the King to uphold the rule of law. Thus it was at the instance of the monarch that the writ of habeas corpus was and still is issued, to command a gaoler to bring up the body and explain the lawful justification for imprisoning him. Thus it was and still is that the other remedies controlling the abuse of public power are issued at the instance of the monarch. And in the revolutions of the 17th century it was established that the King could not change the law. The only body which could make or change the law was the King or Queen in Parliament.

So it is not surprising that after the Second World War the British enthusiastically promoted the idea of a European Convention on Human Rights, to combat the right wing totalitarianism of the recent past in western Europe and the left wing totalitarianism of the then present in the east. They took a leading part in its drafting. They almost certainly thought that its provisions reflected the then existing state of United Kingdom law. They were probably right about that. But they had reckoned without two things. One was the undoubted ingenuity of the British lawyers who appeared before the European Court of Human Rights once we had accepted the right of individual petition to the court in 1966. The other was the evolutive approach developed by the court in its four landmark decisions of Tyrer v United Kingdom¹, Golder v United Kingdom², Marckz v Belgium³ and Airey v Ireland⁴. I do not think that it is any coincidence that three of these cases came from common law countries, the United Kingdom and Ireland, and provoked strong dissents from Sir Gerald Fitzmaurice, the UK judge. He thought that they were taking the Convention way beyond the original intentions of its drafters and the States Parties who ratified it.

Those four cases established three governing principles. The first, and perhaps the most important, established in Golder, was of purposive rather than a literal construction of the language used. The second, articulated in Tyrer, is that the Convention is a ‘living instrument’. This was an echo, whether conscious or unconscious I do not know, of the words of a British Lord Chancellor, Lord Sankey, in Edwards v Attorney General for Canada⁵, where he said that that the Constitution of Canada should be seen ‘as a living tree capable of growth and expansion within its natural limits’. The third, first articulated in Airey, is that the rights protected must be ‘practical and effective’ rather than ‘theoretical or illusory’.

These three principles, in their turn led to substantive developments: first, that expressions used in the Convention have to have an autonomous meaning and cannot depend upon the meanings and categories adopted in national law; second, that certain rights have to be implied into the Convention if the express rights are to have any meaning; and third, that certain rights entail positive as well as negative obligations. Thus it was that in Marckz v Belgium the court was able to spell out of article 8 a duty in the law to recognize the family relationships of children born outside marriage on equal terms with those of children born within it. Sir Gerald Fitzmaurice appeared almost apoplectic in his dissent.

So it was that the British soon discovered that United Kingdom law did not always conform to the rights which had been spelled out in the convention. It did not, for example, recognize a right of privacy which would prevent the armed forces from intruding into the private lives of its soldiers, sailors and airmen by excluding those of homosexual orientation⁶. The other discovery, of course, was that even if the common law did recognize rights such as freedom of speech or rights of property, there was nothing to stop our sovereign Parliament taking them away, for example, by providing for compulsory purchase without compensation at full market value⁷. The idea that the citizen might have rights which he could assert against the state itself was unknown to us. So individuals whose rights had been violated had to exhaust their domestic remedies, such as they were, and then apply to Strasbourg, which had to decide the case without the benefit of a full consideration by the UK courts of the issues arising under the convention.

Eventually, therefore, the Labour party during its long years in opposition decided to do something about it. Every year, when the Queen comes to open Parliament after the summer recess, a select group of judges attend to hear her read out a speech announcing her government’s intention for the coming session. I had the honour to be in that group for the state opening after the general election of 1997 and so heard her announce that legislation would be introduced to make the European Convention part of United Kingdom law⁸. I well recall the excitement among the judges sitting on the woolsack. Here was the biggest constitutional development since the European Communities Act 1972 and one which would give us some new problems but also some new opportunities.

The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament. The Human Rights Act which Parliament passed in 1998 adopted what many thought at the time to be a very ingenious solution. It did five main things:

1. It turned the rights in the Convention into rights which were enforceable in UK law⁹.
2. It required the UK courts to have regard to the jurisprudence of the European Court of Human Rights and other Council or Europe organs in interpreting those rights¹⁰.
3. It required the UK courts ‘so far as possible’ to read and give effect to legislation in a way which was compatible with the convention rights; subordinate legislation could be ignored if this was not possible¹¹.
4. It empowered the High Court and above to make a declaration that a provision in an Act of the UK Parliament was incompatible with the convention rights¹².
5. It required a Minister, when presenting a Bill to Parliament, to make a statement confirming whether or not the Bill’s provisions were compatible with the convention rights¹³.

The effect has been profound and was indeed foreseen and intended by the promoters of the Act. Jack Straw MP, then the Home Secretary, suggested in the House of Commons that ‘over time the Bill will bring about the creation of a human rights culture in Britain’. Lord Irvine of Lairg, then the Lord Chancellor, described it as a ‘modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their rights secured’¹⁴. Nevertheless, each of the Act’s techniques has proved more problematic than might at first have been predicted.

2. Enforcing convention rights in UK law

The Act makes it a statutory tort for a public authority to act in a way which is incompatible with a convention right¹⁵. This ought to have been the comparatively easy part. Of course, many of the convention rights require a balancing exercise, between the rights of the individual and the interests of the public, which is not always easy to conduct. We would have to get to grips with the concepts of proportionality which had previously only cropped up in the relatively confined areas of European Union law. But the tools were there for us to use, for example, when deciding whether it was an unjustifiable limitation on a Muslim school girl’s right to manifest her religion for the school uniform to ban the wearing, not of course of a headscarf, but of a long tunic known as a jilbab¹⁶.

The first difficulty to emerge was that of horizontal effect: to what extent were these new rights against the state also enforceable against private entities? The Act did not create any new statutory tort against them, but it did provide that the courts were public authorities and thus obliged to act compatibly with the convention rights¹⁷. So although we could not invent any new cause of action between private persons, it was decided that we had to adapt those causes of action which we did have so as to be compatible with the convention rights. This came up in the context of newspaper intrusions into the private lives of celebrities (and others) and we developed or law of confidentiality so as to enable us to balance the privacy rights of individuals against the freedom of expression rights of newspapers and other media. So we held that a newspaper should not have published a photograph of supermodel Naomi Campbell leaving a narcotics anonymous meeting¹⁸.

Another difficulty was the standard of review of the actions of public authorities. We are very used to reviewing the legality of their actions, according to the well-known Wednesbury principles¹⁹: was the decision within their legal powers, was it taken in a proper manner, and was it ‘reasonable’ in the sense that it was a decision which a reasonable public authority could take, even if not the one which the court would have taken in the circumstances. But was that the right approach to deciding whether the statutory tort had been committed? I never had any doubt that it was not the right approach: it was for the court itself to decide whether what had been done was, or was not, compatible with the convention rights²⁰. But, of course, where questions of balance and judgment come into play, as they so often do, the decision-maker may be better equipped than the court to weigh the competing interests and so considerable respect will be given to her views. So, in R (Quila) v Secretary of State for the Home Department²¹, most of us thought it disproportionate for the Home Secretary to insist that both husband and wife had to be over 21 before a UK resident could sponsor her foreign spouse to enter the UK. This was avowedly for the purpose, not of efficient immigration control but of preventing forced marriages, yet it was acknowledged that many more perfectly happily married young couples would be prevented from setting up home here together as a result. But Lord Brown dissented: he thought that the Home Secretary was better equipped to make that judgment and we should defer to her views: ‘in a sensitive context such as that of forced marriages it would seem to me not merely impermissible but positively unwise for the courts yet again to frustrate Government policy except in the clearest of cases’. One reason for that was that, if the Home Secretary disagreed with our decision, she could not complain to Strasbourg, whereas the young couple could²².

3. Taking into account the Strasbourg jurisprudence

That case was also a good illustration of another problematic area. The Act only requires us to ‘take into account’ the Strasbourg jurisprudence²³. We do not have to follow it if we do not agree with it. However, as a common law country, we love working with case law. Counsel appearing in front of us have a tendency to treat the Strasbourg jurisprudence as if it were the case law of our courts. This (as I have previously observed²⁴) is odd, because Strasbourg case law is not like ours. It does not set binding precedents in the way that our law does. It states the general principles, but usually in a way which leaves plenty of wriggle room for the future.

Nevertheless, as the principal object of the Act had been to stop cases going to Strasbourg, the House of Lords very early on took the view that where there was a ‘clear and constant’ line of jurisprudence, especially at Grand Chamber level, we should generally follow it²⁵. We recently followed that line in R (Chester) v Secretary of State for Justice; McGeoch v Lord President of the Council²⁶, a case about prisoners’ voting. UK law currently bans all prisoners serving a sentence of imprisonment who happen to be in prison on polling day from voting, whether they are murderers serving life imprisonment or shoplifters serving a few weeks. Two Grand Chamber decisions have held that such a ‘blanket ban’ is incompatible with the right to vote which is implied into the duty to hold free elections at reasonable intervals which will ensure the free expression of the opinion of the people, although Italy’s more measured approach has been upheld²⁷. Although one of us was sorely tempted to say that Strasbourg should allow us a much wider margin of appreciation on such a matter, and that its approach was no less arbitrary than our present law, we repeated our now well settled view²⁸:

‘Where . . . there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.’

There are occasions where we can engage in a ‘meaningful dialogue’ with Strasbourg if we think that they have gone too far, but there are only two really good examples of this. In Al-Khawaja²⁹, a chamber held that the use of a dead victim’s witness statement to convict a man of sexual assault was incompatible with his right to a fair trial despite the evidence that he had done the same to others. In R v Horncastle³⁰, we declined to follow this approach, and explained at great length why we thought this over-prescriptive and disregarding of the numerous protections given to criminal defendants in our trial processes. The object was to persuade the Grand Chamber to take the case, which they did. And after some considerable deliberation, they subtly modified their approach³¹. But in the prisoners’ voting case, there was clearly no prospect of their doing that, so there could be no more meaningful dialogue; nor could we see this as going to some fundamental substantive or procedural aspect of our law.

But that is the principle when it is clear that, if we find against the individual and he goes to Strasbourg, he will win there. But what about the cases where we do not know Strasbourg would say or where, as the jurisprudence currently stands, he would lose? In the well-known case of R (Ullah) v Special Adjudicator³², Lord Bingham enunciated what has since been termed the ‘mirror’ principle: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. And in a later case³³ Lord Brown reversed this: ‘no less, but certainly no more’. Indeed, I agreed with him, but I no longer do.

‘No less’ we understand, but why ‘no more’? Why should we not develop the convention rights in the ways which we think right, whether or not Strasbourg would do the same? There is every reason to believe, from what was said before and during the Act’s passage through Parliament, that this is what it was thought that we would do. The preceding white paper, for example, had said that incorporation would enable the British judges ‘to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe’³⁴. Jack Straw, the Home Secretary who saw the Bill through the House of Commons, had said the same in Parliament³⁵. Moreover, the reason which Lord Bingham gave for the ‘mirror principle’ was that the meaning of the Convention should be the same throughout the states party to it: elsewhere he had said that national courts should be cautious in developing the rights, otherwise states parties might become bound by obligations which they had never agreed to. That is, of course, a reason why Strasbourg might be cautious, but nothing we do in interpreting and applying the rights in the UK is in anyway binding on Strasbourg or on any of the other states parties, so this is not a good reason for us to hold back.

I think there is a distinction to be drawn between working out our own answer to a problem which has not yet arisen in Strasbourg and deliberately going further than Strasbourg has gone and, we think, is likely to go at least in the near future. So, for example, in Rabone v Pennine Care NHS Foundation Trust³⁶, we held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally – that is, without any compulsory measures being taken – because of serious attempts to take her own life. She was given weekend leave of absence from the hospital despite her parents’ grave concerns and she did indeed take her own life. That certainly went further than any Strasbourg case had yet done, but Lord Brown himself said³⁷ that it would be ‘absurd’ for us not to decide a question merely because Strasbourg had not done so. Why should we wait for something which might never come? As it happens, unbeknown to us, Strasbourg had a very similar case coming up, brought by the mother of a suicidal schizophrenic man who had been placed in a sixth floor room of a ‘crisis centre’ and thrown himself out of the window. Strasbourg referred to Rabone in its judgment and clearly thought that we were right³⁸. I pick this because it is a recent example, but there are several others where we have taken a markedly adventurous line of our own in an area where Strasbourg had yet to speak³⁹.

We can compare this with the ‘no less, but certainly no more’ case itself: in Al-Skeini v Ministry of Defence, we decided that civilians injured in the course of our peace-keeping activities in Iraq were not ‘within the jurisdiction’ of the United Kingdom for the purpose of article 1 of the Convention, and therefore not covered either by the Convention or by the Human Rights Act. We thought that, by insisting that jurisdiction was ‘primarily territorial’, with only very limited exceptions, the Grand Chamber had drawn a line in the sand⁴⁰. As it turned out, we were wrong about that⁴¹, but I don’t think that we are obliged to anticipate some of the more surprising and adventurous things that Strasbourg may do.

It is interesting that the two politicians most closely associated with the Act, Lord Irvine of Lairg⁴² and Jack Straw⁴³, have both delivered lectures disapproving of the so-called ‘mirror principle’ and urging us to take our own line. They cite the views expressed to Parliament that we might be more adventurous than Strasbourg has been: indeed, Lord Irvine approved of Lord Kerr’s dissent in Ambrose v Harris⁴⁴, where the majority had refused to extend the right of access to legal advice to police questioning before a police station interview. The court was only too well aware of the political storm which had arisen in Scotland after our earlier decision that suspects had to have access to legal advice before police station interviews⁴⁵. The reality probably is that the independent line that most politicians wish is to take is for us not to follow what they would regard as Strasbourg’s more adventurous decisions. Jack Straw has been quite blunt in blaming Strasbourg’s ‘determination . . to expand its jurisdiction and to fail to provide a very wide margin of appreciation save over the protection of basic human rights’ for the conflicts which have emerged with what he calls ‘the people’s will’ in member states⁴⁶. In his view, the Human Rights Act has been a great success, and the problem lies with Strasbourg, not with us. But there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem and pledged to repeal it if the Conservative party has a majority at the next election⁴⁷.

4. ‘Read and give effect’

This brings me on to the relationship which the Act creates between our sovereign Parliament and the courts. Section 3(1) of the Act states that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. This is akin to the obligation with which we had already become familiar in EU law – that of conforming interpretation irrespective of what Parliament intended at the time. In Ghaidan v Godin Mendoza⁴⁸, the House of Lords held that this was meant to be the principal solution where legislation was incompatible. This had in fact been clear in the ministerial statements to Parliament when the Bill was going through⁴⁹. A declaration of incompatibility was a last resort.

In that case, by a majority, we held that a person who had been living with a deceased tenant ‘as his or her wife or husband’ could include the survivor of a same sex couple in a stable, committed union, even though at that stage there was no formal legal status akin to marriage for them to contract into. Frankly, I did not find that in the slightest bit difficult. It would be as easy (or as difficult) to recognize the sort of same sex relationship which qualified as it was to recognize the sort of opposite sex relationship which did so. But one of our number did not agree: he thought that the words ‘husband and wife’ inevitably meant a man and a woman and could not be applied to two people of the same sex.

So far so not very exciting. But Lord Phillips, first President of the UK Supreme Court, has pointed out that the statements made in Ghaidan went much further than simply interpreting the words of a statute which had been passed long before the Human Rights Act. They gave a very broad meaning to what was ‘possible’ – as long as an interpretation was not contrary to the scheme or essential principles of the legislation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with the convention rights and ‘go with the grain’ of the legislation, even though it was not what was meant at the time. They also said that this approach would apply to future as well as past legislation, thus in effect saying that the Human Rights Act had limited the power of Parliament to pass incompatible legislation. This is, in Lord Phillips’ view, contrary to the general principle that Parliament can make or unmake any law, although it is the equivalent of what Parliament provided for in the European Communities Act 1972⁵⁰. This is not, of course, to say that Parliament cannot expressly repeal either or both of those statutes: it clearly can. But unless and until it does so, or expressly repeals the relevant sections on interpretation, it has limited its own powers.

There have been some striking examples of the use of section 3. The Prevention of Terrorism Act 2005 introduced a system of ‘control orders’ for people suspected of involvement in terrorism related activity. Orders were made by the Home Secretary but subject to review by the High Court. The Act provided for the use of ‘closed material’, secret information not disclosed to the controlled person, but scrutinized by a ‘special advocate’, who was there to protect his interests but could not discuss the material with the controlled person without leave of the court. The Act’s clear intention was that the court could uphold the order even if the non-disclosure meant that the controlled person would not have a fair hearing. In Secretary of State for the Home Department v MB⁵¹ however, we held (by a majority) that the provision had to be read down to prevent this, by inserting the words ‘except where to do so would be incompatible with the right of the controlled person to a fair trial’ so that, if the hearing could not be fair without disclosure, the Home Secretary would have to choose between disclosure and the order.

When the case came back to us⁵² on the question of what the minimum requirements of a fair hearing were in those circumstances, Strasbourg having by now given some further guidance⁵³, one of the Law Lords pushed counsel for the Secretary of State quite hard to argue that we had been wrong to do this first time round and should have made a declaration of incompatibility instead. But counsel quite clearly had instructions not to do this. As Lord Phillips commented, Ministers do not like declarations of incompatibility. They would rather live with our adventurous interpretations, provided that the main thrust of their legislation is not impaired.

5. Decleration of incompatability

But there are occasions when we cannot interpret our way out of the problem – usually where there is nothing to interpret which would give a court or other public authority the power to do the right thing. Then the High Court, but not any lower court, has power under section 4 to declare the provision incompatible with the convention rights. This has no effect upon the validity of the provision or of anything done under or in pursuance of it⁵⁴. But it sends a strong signal to Government and Parliament that we think that the UK Government will lose if the case goes to Strasbourg. As of September 2012, there had been 28 such declarations, eight of which had been overturned on appeal, leaving 20 still standing, but one is under appeal to us and is due to be heard this term⁵⁵.

Deciding whether an Act of Parliament is incompatible raises the issue of respect for the decisions of our democratically elected representatives much more acutely than does deciding whether the actions of public authorities and Government Ministers are incompatible. The second main example of successful dialogue with Strasbourg illustrates this. Animal Defenders International v Secretary of State for Culture, Media and Sport⁵⁶ concerned our very widely drawn ban on political advertising in the broadcast media. A Strasbourg decision against Switzerland, on very similar facts, had held the ban incompatible with article 10 freedom of expression, so when introducing the Communications Bill to Parliament, the Minister had been unable to say that the provision in question was compatible with the convention rights, but Parliament had passed it nonetheless. We upheld it, because we thought that the restriction of expenditure on political advertising was an important objective which Strasbourg had not fully explored. We do not want our elections determined or distorted by who has the deepest pockets. Eventually, the Grand Chamber found, by nine votes to eight, that there had been no violation⁵⁷. It introduced a widened margin of appreciation for ‘general measures’ which apply to predefined situations regardless of the individual facts of each case. This ban was proportionate, given the extensive pre-legislation consultation, the undesirability of distortion of public debate by wealthy groups and the fact that alternative methods of communication remain open.

A similar example of respect for the recent judgment of Parliament on the justification for limiting qualified rights can be found in our declining to make a declaration that the ban on hunting certain wild animals with dogs was incompatible⁵⁸. This was upheld in Strasbourg. Sir Nicolas Bratza, recently retired as UK judge there, has commented that Strasbourg ‘has been particularly respectful of decisions emanating from courts in the United Kingdom since the coming into effect of the Human Rights Act . . . In many cases the compelling reasoning and analysis of the relevant case law by the national courts has formed the basis of the Strasbourg judgment’⁵⁹.

But sometimes we have no choice but to make a declaration. Government and Parliament then have three choices. The first is to use the ‘fast track’ remedial procedure under section 10 of the Act. This applies, not only when we have declared legislation incompatible, but also where the incompatibility is clear from a ruling of the Strasbourg court. It allows a Minister to cure the defect by subordinate legislation. This is most suitable where it is fairly clear how to do this. Three out of the 19 declarations have been cured in this way. The most recent concerned the lack of any provision for removing a person’s name from the sex offenders register, with the burdens that entails, even if there is every reason to believe that he no longer poses any risk of such offending⁶⁰. Curiously, when he introduced the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it⁶¹.

The second is to change the law by Act of Parliament. Sometimes all that is required is a simple repeal or the offending provisions have already been replaced by a new scheme. Sometimes a new legislative scheme may be required to replace the offending provision, with choices to be made. The best known example is the ‘Belmarsh’ case⁶², where we declared incompatible a provision allowing for the executive detention without trial of foreign suspected terrorists. The Government had derogated from article 5 of the Convention in order to do this, but we declared the derogation invalid, because it was disproportionate to provide for foreign suspects to be detained when it was well known that there were also equally suspect home grown terrorists who were not to be detained. The legislation had a sunset clause which expired three months after our decision, so the Government let it expire and promoted the control order scheme in its place.

The final option is to do nothing. But the only example so far is prisoners’ voting. Strasbourg first decided that our law was incompatible in Hirst v United Kingdom (No 2), but did not give us any help to decide what would not be incompatible⁶³. The Scottish Registration Appeal Court made a declaration of incompatibility in 2007⁶⁴. Strasbourg returned to the issue in Greens and MT v United Kingdom⁶⁵, and gave the UK a deadline within which to do something about it. Eventually, in 2012, the Government introduced a draft bill to Parliament which contained three options, one of which was to do nothing – in other words, it was consulting rather than proposing. A committee has now been set up to examine those options.

Meanwhile, two further prisoners’ voting cases have come before us, raising issues not only under the Human Rights Act but also in European Union law⁶⁶. The Attorney General appeared in person before us to argue that we should disagree with Strasbourg: once it was accepted, as Strasbourg has now accepted, that some prisoners can be denied the vote, the threshold for putting a person in prison was a perfectly rational criterion for deciding who should be disqualified. As I have already explained, we thought that we should follow Strasbourg’s clear line that this was not good enough.

However, we did not make a declaration of incompatibility. One reason for this was that there was no point in repeating what had already been declared by the Scottish court. But I initiated another small rebellion. The two claimants in the case were convicted murderers sentenced to life imprisonment. One had not yet completed the punishment part of his sentence. The other had done so, but was still in prison because the parole board did not consider that he was safe to be let out. There is now every reason to think that the Strasbourg court would uphold legislation which denied these two individuals the vote (and no chance of the UK Parliament passing legislation which would give it to them). Usually, Strasbourg does not grant remedies in the abstract, divorced from any consideration of how the rights of the individual before the court have actually been violated. They did so in the Hirst case, despite a strong dissent including the then President of the Court and his immediate successor. I thought that we should follow the normal and sensible practice of the Court and refuse to grant any of the remedies available to us, including a declaration of incompatibility, to an individual whose own rights had not been violated, other than by being subject to a law which might violate the rights of others.

I have no personal view on which prisoners should be given the right to vote, although I find it a little hard to see what all the fuss is about. But I do think that the issue is a good example of why we need human rights legislation. It is not at all obvious that the franchise should be decided only by those elected under the present franchise. The House of Commons is rightly proud that it represents and is accountable to the people who elect them. But its members do not represent and are not accountable to the people who currently cannot elect them. The purpose of any human rights protection is to protect the rights of those whom the majority are unwilling to protect: democracy values everyone equally even if the majority do not⁶⁷.

6. But what of the future?

There are now many voices raised against the Human Rights Act. Sections of the press and media have always been hostile, not surprisingly as it was seen as a threat to press freedom from the outset. But this has been fuelled by a perception that it has prevented us from removing some dangerous foreigners from the country and generally allowed people with no right to be in the country to stay once they have established a private or family life here. It is no coincidence that it is the Home Secretary, in charge of police and immigration, and the Justice Secretary, in charge of prisons and the criminal justice system, who have been most vocal in their opposition to the Act⁶⁸. Some Parliamentarians and commentators are concerned about the perceived threat to Parliamentary sovereignty, despite the clever and careful structure of the Act⁶⁹. Some are concerned about what they see as the imperialism of the Strasbourg court⁷⁰. They are not alone in this: similar voices are raised, for example, in Belgium and in Norway. Some are simply hostile to anything European.

There has been serious discussion of replacing the Act with some sort of British Bill of Rights. The Parliamentary Joint Committee on Human Rights produced a report on this some time ago, assuming that it would give at least as much protection as the current law does⁷¹. When the present Government came into power, it set up a Commission to examine the question, but perhaps that assumption was not universally shared among the coalition parties. Hence it was unlikely that the Commission would ever produce a unanimous report, and indeed it did not do so⁷². But until recently there did not seem to be much discussion of simply repealing the Act and replacing it with nothing. That would raise all sorts of interesting questions about the effect of the decisions which have been made during the period while the Act was in force and whether the common law would now embrace many of the rights which were established during that time. A former Justice of the High Court of Australia, where they do not have a federal bill of rights, Dyson Heydon, has asked ‘Is there any fundamental right referred to in the Act which was not given reasonable protection in domestic law before 2000?’⁷³ I think that I have illustrated how and why the answer is ‘yes’ and much progress has been made since the Act was in force.

That discussion has now been overtaken by the proposal to conduct a referendum on whether or not we should stay in the European Union if the Conservative party wins the next general election. Obviously the two are separate questions: we could leave the European Union without leaving the Council of Europe. It is more questionable whether, in reality, we could leave the Council of Europe without leaving the European Union. But we shall have to leave those questions for another day.

Endnotes

* Deputy President, UK Supreme Court. The following is the text of talk given to mark the opening of the academic year at the Centre for British Studies, Humboldt-Universität zu Berlin, 14 November 2013. A slightly revised version was delivered at the University of Warwick on 28 November 2013 under the title “What’s the point of human rights?” and is accessible at www.supremecourt.gov.uk. As always, I am grateful to my judicial assistant, Penelope Gorman for her help with researching this lecture. She is not to blame for any of the errors or opinions expressed, which are all my own.

1 (1979-80) 2 EHRR 1.

2 (1979-80) 1 EHRR 524.

3 (1979-80) 2 EHRR 330.

4 (1979-80) 2 EHRR 305.

5 [1930] AC 124, at p 136.

6 Smith and Grady v United Kingdom (2000) 29 EHRR 548.

7 James v United Kingdom (1986) 8 EHRR 123, Lithgow v United Kingdom (1986) 8 EHRR 329.

8 Hansard (HL), 14 May 1997, Col 6.

9 S 8 (1).

10 S 2 (1).

11 S 3.

12 S 4 (2).

13 S 19.

14 Lecture to the UCL Constitution Unit, 8 December 1998.

15 S 6 (1). The remedies are provided for in ss 7 and 8.

16 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.

17 S 6 (3)(a).

18 Campbell v MGN Ltd [2004] UKHL 22, [2004] AC 457.

19 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

20 As held in R (SB) v Governors of Denbigh High School, above, and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420.

21 [2011] UKSC 45, [2012] 1 AC 621.

22 See para 97.

23 S 2 (1).

24 ‘Argentoratum locutum: Is Strasbourg or the Supreme Court Supreme?’ (2012) 12 HRLRev 65-78.

25 R (Alconbury Developments Ltd and Ors) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295.

26 [2013] UKSC 63, [2013] 3 WLR 1076.

27 Hirst (No 2) v United Kingdom (2006) 42 EHRR 41, Scoppola v Italy (2013) 56 EHRR 19.

28 Chester, above, at para 26 (quoting from the judgment of Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 2 AC 104 at para 48).

29 Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.

30 [2009] UKSC 14, [2010] 2 AC 373.

31 Al-Khawaja v United Kingdom (2011) 54 EHRR 23.

32 [2004] UKHL 26, [2004] 2 AC 323.

33 Al-Skeini v Secretary of State for Secretary of State for Defence [2008] AC 153, 106 and 93.

34 1997, Cm 3782, para 1.14.

35 HC Deb, Vol 313, col 424 (3 June 1998).

36 [2012] UKSC 2, [2012] 2 AC 72.

37 Para 112.

38 Reynolds v United Kingdom (2012) 55 EHRR 35

39 R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396 (article 3 prevents government from deliberately reducing asylum seekers to a state of utter destitution); EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198 (article 8 rights of mother and child would be so flagrantly violated in Lebanon that they could not be returned there); Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173 (blanket ban on unmarried couples adopting jointly discriminatory).

40 Bankovic v Belgium (2007) 44 EHRR SE5.

41 Al-Skeini v United Kingdom (2011) 53 EHRR 18.

42 ‘A British Interpretation of Convention Rights’ [2012] P.L. April 237

43 ‘The Human Rights Act and Europe’, Second Hamlyn Lecture, published in Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press; 2013)

44 [2011] UKSC 43, [2011] 1 WLR 2435.

45 Cadder v HM Advocate (HM Advocate General for Scotland intervening) [2010] UKSC 43, [2010] 1 WLR 2601; following Salduz v Turkey (2009) 49 EHRR 19.

46 Loc cit, p 26-27.

47 The Home Secretary announced at the Conservative Party Conference in September 2013 that the Conservative Party manifesto for the 2015 election would contain a pledge to repeal the Human Rights Act. ‘Tories “to scrap Human Rights Act” – Theresa May, BBC News, 30 September 2013, www.bbc.co.uk/news/uk-politics-24338921 (visited 3 December 2013).

48 [2004] UKHL 30, [2004] 2 AC 557

49 Jack Straw, Hansard (HC Debates), 16 February 1998, col 778; Lord Irvine, Hansard (HL Debates) 5 February 1998, col 840.

50 Lord Phillips of Worth Matravers, ‘The Art of the Possible: Statutory Interpretation and Human Rights’, the First Lord Alexander of Weedon Lecture, 22 April 2010. Accessible at www.brickcourt.co.uk/uploads/lecture-the-art-of-the-possible-by-lord-phillips.pdf.

51 [2007] UKHL 46, [2008] 1 AC 440.

52 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.

53 A v United Kingdom and others (2009) 49 EHRR 29.

54 S 4(6).

55 R (on the application of T) v Chief Constable of Greater Manchester and others), listed for hearing on 9 December 2013

56 [2008] UKHL 15, [2008] AC 1312.

57 Animal Defenders International v United Kingdom (2013) 57 EHRR 21.

58 R (Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] AC 719; upheld in Strasbourg, Friend v United Kingdom (2010) 50 EHRR 51.

59 N Bratza, ‘The relationship between the UK courts and Strasbourg’ (2011 EHRLR 505, at 507.

60 Sexual Offences Act 2003 (Remedial) Order 2012.

61 HC Deb, vol 523, col 955 (16 February 2011).

62 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.

63 See n 22 above.

64 Smith v Scott [2007] CSIH 9; 2007 SC 345.

65 [2011] 53 EHRR 21.

66 See n 21 above; we held that EU law does not give a right to vote independently of whatever rights are given in the laws of member states: all it says is that nationals of other member states must be given the same rights to vote in European and municipal elections as nationals of the state where they are resident.

67 Ghaidan v Godin-Mendoza, above, para 132.

68 Eg ‘Grayling’s manifesto to rescue justice from Europe’, The Sunday Telegraph, 3 November 2013.

69 Eg M Pinto-Duschinsky, Bringing Rights Back Home, Making human Rights compatible with parliamentary democracy in the UK, Policy Exchange 2011 (with a Foreword by retired Law Lord, Lord Hoffmann).

70 Including Jonathan Sumption QC, before taking up his appointment as a Justice of the UK Supreme Court, in ‘Judicial and political decision-making: the uncertain boundary’, the 2011 FA Mann lecture (2011) JR 301.

71 A Bill of Rights for the UK? Twenty-ninth Report, Session 2007-08, HL Paper 165-1, HC 150-1.

72 A UK Bill of Rights? The Choice Before Us, Report of the Commission on Human Rights, 18 December 2012. See M Elliott, ‘A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights’ [2013] EHRLR 137.

73 JD Heydon, ‘Are Bills of Rights necessary in Common Law systems?’ Lecture delivered at Oxford Law School on 23 January 2013.

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