Lord Hoffmann is right about the ECtHR

by Carl Gardner on April 8, 2009

I’d entirely missed Lord Hoffmann’s recent speech about the European Court of Human Rights: thanks to Afua Hirsch for drawing attention to it. In my view this is a brave and important speech, and I applaud him.

Let me stress that I don’t agree with everything he said. Far from it. In fact, there are quite a few things in it that I disagree sharply with. Most crucially, Lord Hoffmann seems to regret the fact that the ECtHR exists at all, and that individuals can petition it directly. He would it seems prefer the European Convention on Human Rights only to be politically enforceable, by means of criticism of one state by another, or by international organisations or NGOs. I think he’s profoundly wrong about this. The existence of the Court as an enforcement mechanism is the reason why the ECHR is a serious international human rights law, one that countries like Russia and Turkey have to think seriously about, rather than simply being able to ignore; and the right of individual petition ensures that human rights thinking is not completely dominated by the groupthink of establishment liberals like the staff of Human Rights Watch, but is occasionally shaken up by the awkward squad like John Hirst and Christine Goodwin.

I also disagree with Lord Hoffmann’s argument that the ECtHR has less legitimacy than the European Court of Justice – it doesn’t. For some reason Lord Hoffmann seems to think people accept the right of the ECJ to rule on employment law in the UK, for instance, and that its integrationist, teleological approach is mandated by the EU Treaties. I have no complaint about the legitimacy of either court, and I think on the whole both have adopted logical, necessary approaches to their tasks; but each has equally been imposed on the people of European by their governments, and each has had to read fundamental principles into the way they approach their jobs, in order to make things work.

I also agree with many of the judgments the ECtHR has come up with over the years. I think it’s earned respect as an institution, is often right, cutting through national nonsensification, and has shown an ability to admit it when it’s got things very wrong, for instance in its complete misunderstanding of the English law of negligence, which it repented of in Z v UK (see para. 100 of the judgment). So part of me is inclined to write in defence of the Court.

But the reason why, ultimately, my instinct is the opposite of Afua Hirsch’s, and why I applaud Lord Hoffmann, is that he’s right on his central point: the ECtHR has indeed been too quick to intervene in the details of UK law and practice, and he’s right to say so. Strasbourg is, or should see itself as, a supervisory jurisdiction, and would do well to show caution in the way it deals with the law of the most human rights-compliant societies it polices.

Lord Hoffmann cites examples – I’m not even sure I agree with all of them, though they’re reasonable enough. But I have my own examples. In Hirst, I think the Court was far too ready to reject the UK’s ban on prisoners voting, reducing the margin of appreciation to vanishing point; I explained my views more fully to Charon QC in a podcast a while ago. And in S and Marper I think it was far too ready to rule out the UK’s approach to building a DNA database in a judgment that, if it stands, will in my view have a detrimental effect on human rights throughout Europe for decades to come.

The ECtHR would do well to adopt a self-consciously supervisory role, and resist the urge to meddle too fussily in contracting states’ legal systems. Its rulings have the potential to ossify human rights protection, saddling Europe with standards based on current attitudes, particularly if it uses common European standards as a reason to reject experimental policies undertaken by one or two states which might, if tried, enhance human rights in due course. Lord Hoffmann’s warning is a sound one – I hope it’s heeded.

{ 10 comments… read them below or add one }

1 simply wondered April 8, 2009 at 09:37

the noble lord is always going to be right as he seems to give himself 2 bites at every particular cherry – and his 2 bites result in the answers ‘black’ and ‘white’ – witness the leading fraud cases and stovin v wise / gorringe v calderdale.
that said, i think the legal system and the country have been well served by lords like hoffman, bingham, nicholls, steyn and baroness hale (even if we have to forgive her/them for the unholy mess of stack v dowden – and when will they get a chance to do something about yl?).
if they are the public face of the law then anyone reading what they say and how they say it can only be reassured. and in a time where the executive seems to wish to enlarge itself, they are a powerful brake on that. perhaps the pendulum will swing again if certain less liberal figures dominate the lawlords.

2 Head of Legal April 8, 2009 at 10:15

Funny, simply – I don’t know all the cases you mention, but suspect we disagree on a lot! I think YL was a very good decision (and it’s been superseded now by section 145, I think it is, of the Health and Social Care Act 2008).

And as for Lord Hoffman’s remark about “the real threat”… Honestly! I’ve no beef with the Belmarsh judgment, but anyone who doesn’t realise “the real threat” is from terrorist mass murderers is seeing the world upside-down, I reckon. To be fair I think those words were before 7/7, but 7/7 certainly showed how foolish they were.

3 Lallands Peat Worrier April 8, 2009 at 11:01

The element of the speech which struck me particularly was its intense Anglocentrism.

While bemoaning the intrusion of alien mentalités in the mental space of English law – he makes the following unlawyerly and vague observation that – “the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such.”

Rather rich, to my mind, to be complaining about being overriden while in the process of talking, the complainer thoughtlessly overrides the complex internal legal arrangements in his own state, consigning everything outside the weighty van of English and Welsh law to a dusty corner, beyond remembrance.

I don’t think a spasm of legal nationalism here -writing as a Scots lawyer- is wholly unjustified here. Lord Hoffman, has after all sat on Scottish civil appeals in the House. Is it too much to remember that when prosing in public?

4 Lallands Peat Worrier April 8, 2009 at 11:03

P.S. Chopped the aforementioned quote a little soonish, deleting the significant phrase that Hoffman was not suggesting the imagined system he refers to was perfect. *Ahem*.

5 simply wondered April 8, 2009 at 12:17

lallands pw – if he claims it’s perfect in one speech he will be claiming it’s not perfect in the next you can be sure. so i think you are probably correct in essence.
of course he is anglo-centric – he’s a bloody saffer!

HL – i worry that disagreeing with you means i am simply wrong! i know you would not suggest it, but it is clear where the balance of knowledge lies between us. i shall read up on yl and the impact of s145 health and social care act. can’t believe i missed it. what i do think is (was?) a problem with yl is that housing associations are a convenient way for local authorities to divest themselves of the obligation to provide housing but aren’t subject to the same constraints when they clearly (to me at least) perform the same function. and for one judge to say that this is a very good incentive for councils to hive off their stock to such bodies is just nonsense. as we know, they are incompetent and incompletely regulated and serve many in the greatest need and without recourse to the law.

yes hoffman did get a bit frothy about ‘the real threat’ but i think in essence what he said was accurate and not disputed by many, that while recognising the threat of terrorism is real and important, the actual threat to the rule of law and thus the fabric of a democratic society is disproportionate responses. i know i’m a sad old lefty, but it’s not that radical a distinction to make, surely? pre and post 7/7 it makes sense i feel – and chuck in de menezes and it looks even better.

6 Peter Hargreaves April 19, 2009 at 11:00

Given that the British judiciary is hardly a model of liberalism I cannot agree at all with Hoffman. His “get your hands off our system” approach is depressing and dangerous.

The UK tends to adopt draconian and simplistic rules (e.g. no prisoner may vote) and it is hardly surprising that such rules are questioned by Strasbourg when more proportionate alternatives work perfectly well in other democratic States.

In relation to the DNA Database, the matters which struck the Strasbourg court the most (but not our own Law Lords) were – [1] the marked difference between England/Wales and Scotland and [2] the indiscriminate and arbitrary way in which the database was being operated in England/Wales. The court emphasized the special human rights responsibility resting on States developing such methods. If that is getting too involved in the detail then I hope that they continue to do so. The Law Lords could not be relied upon to do such a job.

7 jailhouselawyer April 23, 2009 at 15:56

Awkward squad? LOL. However, I beg to differ in relation to this “I think the Court was far too ready to reject the UK’s ban on prisoners voting”. But agree that the Court decision has the effect of “reducing the margin of appreciation to vanishing point”.

8 Anonymous April 24, 2009 at 15:13

A small point – it’s Hoffmann not Hoffman!

9 Carl Gardner April 28, 2009 at 15:22

You’re quite right – how foolish of me! Sorry, it’s sometimes a bit much being your own columnist, proofer and sub.

10 Carl Gardner April 28, 2009 at 15:25

Corrected!

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