Elias LJ’s Renton lecture

After the great fun I had at last year’s inaugural Renton lecture, I thought I’d head to the Institute of Advanced Legal Studies to hear Elias LJ talk this year about “The rise of the Strasbourgeousie: judicial activism and the European Court of Human Rights”. He didn’t talk about the ECtHR itself, choosing to focus for most of his lecture on how British judges do and should conceptualise their own relationship to the ECtHR when taking decisions under the Human Rights Act. Are they – and should they be – enforcing essentially domestic rights that just happen to take the same textual form as the ECHR? This is what he called the “autonomous rights” model, according to which the Convention rights in the HRA are domestic rights based on the Convention. If that’s the right model, then the courts here can go further in protecting rights than can Strasbourg. Or are the HRA Convention rights merely a “mirror” of the ECHR, so that judges here are trying to predict or copy what Strasbourg would do? Elias LJ expressed the view that it was strange, after nine years of working with the HRA, that it was unclear which approach the courts prefer.

The basic starting point was Lord Bingham’s speech in Ullah v Special Adjudicator (para. 20), which is based on the “mirror” theory that Elias LJ clearly prefers:

In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. 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.

He went on to criticise the approach of Lord Hoffmann and Lady Hale in In Re P, a case in which their Lordships decided they could find a breach of Convention rights even where the ECtHR would find see the state’s behaviour as within its margin of appreciation, and so permitted. He saw this approach as depending on the, in his view, wrong “autonomous rights” model.

This was all interesting, but I never quite understood why Elias LJ sees this seizure by the judges of the right of appreciation as necessarily depending on the autonomous rights model. Yes, to be fair, Lord Hoffmann’s speech in In Re P clearly suggests the two are linked. But are they, necessarily? The ECtHR’s willingness to allow national authorities wiggle-room in the form of the margin of appreciation isn’t a result of the Convention rights themselves, their scope or meaning. It’s simply because of the Court’s position as an international tribunal, incapable of really assessing social conditions in each contracting state. The margin of appreciation is by its very nature an international law concept about the nature of international judicial supervision; for national judges to be readier to intervene on the basis of their better local knowledge seems to me consistent in fact with their applying the same rights, with the same scope and content.

I liked, though, the way Elias LJ encapsulated one of the situations in which, even on Lord Bingham’s approach, our courts should depart from their understanding of Strasbourg case law: they should reach judgments they think the ECtHR could and should make, even if they don’t think it would.

The lecture also included a discussion of the radical idea that Parliamentary sovereignty might ultimately yield to human rights considerations, suggested not only but notably by Lord Steyn in Jackson v Attorney General (para. 102):

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Elias LJ thinks what’s wrong with this is the idea that Parliamentary sovereignty is just like any other common law rule. He thinks as our consitutional Grundnorm or ultimate rule of recognition, Parliamentary sovereignty is different.

I enjoyed the wine and legal conversation that followed the lecture, too, and I’m glad to say bumped into Heather Hope, who when we were both pupils back in the nineties taught me how to survive in London’s criminal courts.