I was delighted to read Lord Hoffmann’s critique. It supports the reasoned criticisms that we have been making of both the
Strasbourg Courtand the HRA, and undermines Labour’s mantra that any criticism of either places one in some sphere of illiberal outer darkness. Ever since the Human Rights Act, the government has ducked all debate on any problems that have arisen with its operation, and refused to consider whether there could be better ways to protect our freedoms.
This I can agree with. The brainless acid chill and crystalline legitimacy which vague human rights enthusiasts are wont to suggest reposes in international institutions is mind numbing. One must always be able to think, to critique, and reflect. Indeed, his point about better ways is an interesting one, since it is assumed I think, quite often, that a human rights approach – and specifically a rights approach – is an unalloyed good.
“So what has gone wrong and how can we fix it? First Lord Hoffmann’s principal criticism is that the
Strasbourg Courthas not limited itself to the strict judicial discipline of interpreting and applying Convention rights. Armed with the self made doctrine of the “living instrument”, it has as Lord Hoffmann put it "…been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states.”
A few clarifying points, for those who aren’t familiar with the ideas Grieve mentions. The doctrine of the “living instrument” is a half-borrowed trope from Canadian constitutional jurisprudence, who refer more pungently to the idea that texts are a “living tree”, and hence are subject to growth and alteration with time. The mental space is thoroughly thawed. In the Court, it signifies that in the interpretation of the ECHR, the Court is not bound by its own precedents – and that standards which one were not regarded as breaching a citizen’s human rights can now be regarded as doing so. Prominent examples include the case of Tyrer v.
Grieve is correct to suggest that this rule or concept of interpretation is not provided for in the Convention. It is thus, quite proper, depending on one’s judicial vision, to enter into dispute with the Court’s approach. I have heard, for example, Antonin Scalia, Associate Justice of the United States Supreme Court, wax hearty on this very theme of “Judicial activism”. While I’m not wholly out of sympathy with some of the ideas which provoke these response – frequently predicated on the sovereignty of the voter and their democratic representatives – its also a loony fiction to claim that change does not occur over time, or even a willful blindness, consciously maintained to preserve the justifying judicial air in a democratic climate.
I’m interested particularly, however, that Grieve associates the living instrument with uniform rules, towards which I find it difficult to tease out any evident relation. Indeed, to put the counterpoint, surely if human rights are universal, minimum standards, then imposing some order of uniform rules is precisely what the court is for. What is being objected to – I assume, since neither he or Hoffmann are able to furnish terribly many examples to flesh out their charismatically broad indictment – is the level of those minimum standards.
“Lord Hoffmann spelt out as an example how the
Strasbourg Courthas expanded the right to privacy and family life to second-guess regulation governing night flights at Heathrow. His point is that the courts have a duty to apply the law vigorously, but should be wary of law-making, which is the job of elected law-makers. The ECHR allows for the interpretation of Convention rights to differ between states under the “margin of appreciation”, but this is not being allowed to develop as intended.” UK
Ah, huzzah! A concrete example. Well, sort of. Privacy, yes, yes. A contentious article. Grieve argues the classic “interpreters not legislators” model of judicial life, vaguely implying that the article of the Convention on privacy – Article 8 – has some obvious meaning which the evil European judges flagrantly ignore. Have a read if it yourself, tell me if you think you know what applying this article means?
8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The neat distinction he makes between making law and interpretation is patently not realistic here. Given his snort of derision about the “self-made doctrine of the living instrument”, one can but smirk about his lionising reference to the “margin of appreciation”. Scour the Convention and its protocols – you won’t find a crumb of it – the margin of appreciation being a bastardised article borrowed from French administrative law. References to “developing as intended” means to imply I think, legislative intent. If the drafters of the ECHR intended such a margin to exist, however, they epically failed to record it in the text.
It’s a complex idea, and quite what the margin is is subject to extensive academic dispute, which the court, being kindly to we poor scholars of law, has generously not resolved. Its broadly thought of as a bit of wriggle room in which a State may do as they think fit. I would argue that it cannot, however, amount to independent interpretation of what human rights are by States – since clearly, it is the court who says that a particular action is within the margin of appreciation or not. Namely, the margin is about what the universal standards are. Insofar as we believe or wish to uphold the universalistic conception of rights which is at the heart of the endeavour to vindicate the rights of all people, it is difficult to envision how one can escape from this analysis. Grieve continues:
“In my view, this process has been exacerbated by the HRA, which in practice has been interpreted here as requiring
judges to match the UK case law in domestic law - although this is not required by the Convention, nor practised by many other countries. Take deportation. It is well known that the Strasbourg Strasbourg Courthas made clear that member states cannot deport people back to a place where they risk being tortured. But under law the HRA has also been interpreted to block deportation where it might also infringe on the right to family life. That goes further than either the Convention or the UK Strasbourg Courtrequires and risks fettering our ability to deport some criminals or those who pose a risk to security.”
Isn’t this a muddle? It has been interpreted as requiring the judges to match
“The HRA also imposes a duty on our courts to interpret legislation to make it HRA compatible, effectively a licence to re-write laws which reflected the will of Parliament.”
I’d remind my learned friend that the will of Parliament was to enact the Human Rights Act in 1998 and insofar as other legislation is affected, to amend those Acts in that way. Parliament’s doing, not the courts. One can’t be too picky about when the real will of Parliament counts as being expressed.
“Such a document has real usefulness in defining core values and freedoms. I am slightly mystified as to why those who argue that we should rely solely on the Common Law, Magna Carta, Habeas Corpus and the Bill Of Rights of 1689, have not appreciated the fact that these statutes were enacted precisely because the Common law did not provide sufficient protection against State power.”
Sensible point, Mr Grieve.
“The Conservative approach, which David Cameron set out in his speech in June 2006, is to replace the HRA with our own home-grown Bill of Rights. A Bill of Rights would be compatible with the ECHR. In areas where ECHR rights are absolute, such as the Article 3 prohibition of torture, those protections will not be removed. But there is no reason why our courts should be bound by
Strasbourg Courtjurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities.”
Look up a section or two, wasn’t Grieve complaining about this home-grow judicial interpretation only a couple of wheezes ago? Why so keen on it now? He’s right, of course a Bill of Rights would be compatible with the ECHR. Indeed, I warmly anticipate, given the narrow imaginative frontiers which constrain this sort of thing – the Tories will find it very hard not, basically, to reproduce the rights contained in the document, string for string. After all, given the acceptable generality, for most folk, of the Convention’s terms, what exactly would this Bill of Rights do differently? Talk of balancing is a loudly quacking canard of unspeakable vacuity. The
“By enacting a well-drafted Bill of Rights compatible with the rights in the text of the ECHR it will be far less likely that our domestic court’s interpretation of it will be faulted by the
Strasbourg Courtwhich has shown itself respectful of countries constitutional laws. It is a sensible way forward, which we will continue to work on in Opposition. If we do it with a vigorous but rational debate we can achieve an outcome that will be good for our country and the rule of law.”
The implicit reference here is
The crucial capstone in Grieve’s thesis is, I think, his analysis of the margin of appreciation. Any investigating scholar could advise him, however, that his approach to this self-made doctrine is at least debatable. Not least in that, as a self-made doctrine of the European Court of Human Rights, they wield interpretative primacy in determining what that margin is. Curiously, for a man advocating looser connections and relations with Strasbourg - in doing so Grieve must rely on an idea whose scope and style carry the distinctive authorship of the ECtHR.
I for one doubt whether the margin of appreciation ought to be theorised as anything other than the space given to states to do what they like within the boundaries of universal standards. That to my mind is the curious, crooked little canker in Grieve’s optimistic argument. Or one among many. For myself, there is too much legerdemain going on for it to prove wholly convincing – and too little explanation about the respects in which any Bill of Rights might differ substantively, and thus, answer the muddled complaints Grieve outlines.