27 April 2009

Worrier Contra Grieve

I promised Subrosa a while ago to have a squint through Dominic Grieve QC’s treatment of the European Convention on Human Rights over at ConservativeHome. Broadly, Jack Straw’s Tory penumbra suggests that the Human Rights “Act hasn’t worked properly” and ventures to explain why. To my mind, there is far, far too much lightness of hand and deft, impressionistic fingerpainting in his piece. Although I appreciate many of the terms and concepts employed seem technical, Grieve slyly conflates all over the place. Arguments pop up, unannounced after unrelated premises. The only answer is a comprehensive fisk of the thing. What follows is a bit of a tome, but I hope of interest to at least one or two of you.

I was delighted to read Lord Hoffmann’s critique. It supports the reasoned criticisms that we have been making of both the Strasbourg Court and 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 Court has 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. United Kingdom – the Manx birching case – and Selmouni v. France on the relationship between torture, inhuman and degrading treatment in Article 3.

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. Strasbourg’s sticky paws, in short. Moreover, from my own knowledge of the Court’s caselaw, absolute, flat rules are actually terribly uncommon. Very few judgements of the form “if x, then y”. Rather, the Court is awfully keen on a series of structured tests which are internally rather loose, and are apt to be determined by the facts and circumstances of the individual case. For example, under Article 6 one is entitled to determination of one’s rights by an independent and impartial tribunal. What does this mean? Is appointment by the Executive branch always alright? Quite sensibly, the Court says sometimes yes, sometimes no. I’d need far, far more examples of this general aggrandisement Hoffmann and Grieve allege before being convinced.

“Lord Hoffmann spelt out as an example how the Strasbourg Court has expanded the right to privacy and family life to second-guess UK 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.”

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 UK judges to match the Strasbourg 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 Court has made clear that member states cannot deport people back to a place where they risk being tortured. But under UK 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 Strasbourg Court requires 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 Strasbourg caselaw, which Grieve thinks is bad, and this somehow entails that the English judges do more than match it? I don’t follow, and I certainly don’t see what “taking account of the Strasbourg jurisprudence” can be blamed for English courts engaging in more expansive interpretation. It’s a non sequitur.

“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 Court jurisprudence, 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 European Court loves balancing already. Everything pretends it relies on the objectively measuring metaphor of balance against countervailing interests. Why is an English balance better, per se? Given the vague examples given – protecting jury trial rights being one of the better ones – I find it difficult to see how substantively what Grieve promotes will improve anything. Rather, to my eye it looks like a soft, dogwhistle nationalism, which prefers local determination to international standards. Which is fine by me, and worthy of reflection, but one could be rather more up front about it. That said, locating these deliberations in Westminster, given its recent record on these matters, might not appear a terribly attractive prospect at present. However, back to the QC:

“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 Court which 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 Germany, which blow for blow, has been litigated into Strasbourg’s warm chairs far fewer times than the United Kingdom. The point we must emphasise, however, that while a complex and conscientious and elaborated system of domestic rights protection would probably give the Court pause, insofar as there are uniform rules entailed by the interpretation of the Convention, a Bill of Rights enacting UK would still have to suck them up. In short, one cannot simply cover up your lower standards of behaviour by giving it an extensive domestic title and erecting an architecture of confusing verbiage around it. In order to do that cleanly, repudiation of the Strasbourg institutions is necessary. Actually, if I am correct, and Grieve and Hoffmann have erred somewhat in talking about those “uniform rules”, his scheme has the chance to be more successful – since in the absence of rules, the facts and circumstances of individual cases might favour his Bill of Rights. If, however, the rules are uniform, it is a silly, fluffy but ultimately vacuous proposal, if its intent is to alter the standards of the UK’s international obligations under the Convention.

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.


  1. Thank you so much for the explanation Lallands. I now feel I can make a little comment on the subject.

    It was most kind of you to take the trouble to do this and I hope many more read it. I shall link to it on Saturday with the SSS.

  2. Quite welcome, subrosa.

    If it has helped at all to make the conceptual mud a little clearer, I'll have done my job.

    Obviously, considering that much, much more could be said about most of the ideas I've briskly mentioned, its probably sensible to keep one's salt cellar handy, and one's pinching finger poised.

    Nevertheless, once a post hits the 1000-odd word length, brevity's soul must needs give one a nudge, and then the proverbial nod to give it a rest!

  3. I suppose the problem is essentially that politically the Conservatives like neither the jurisprudence of the ECHR nor the UK courts vis-a-vis the Human Rights Act.

    But, of course, the difficulty is in framing a solution to reflect the party's less liberal leanings, which self-evidently presents all kinds of legal and political complications, most obviously reflecting the tension between ECHR and a UK legal solution, and also the conundrum of balancing the progressive/liberal rights agenda with a less, er, politically correct option, which is clearly a difficult area as far as the realm of politics is concerned.