Lord Irvine: British judges should decide human rights cases for themselves

Lord Irvine tonight weighed in to the debate about Britain’s relationship with the European Court of Human Rights – and effectively accused the Supreme Court of having surrendered its intellectual independence, and shirked its judicial responsibility.

His at times toughly-worded lecture to the UCL Judicial Institute and the Bingham Centre for the Rule of Law chimes with what the Attorney General Dominic Grieve has been saying recently about the need for primary responsibility for human rights protection to lie with states, not Strasbourg – and Grieve will surely approve of both the content and timing of Lord Irvine’s intervention, on the eve of the European Court’s ruling in Al-Khawaja and Tahery v. UK and in the context of Britain’s chairmanship of the Council of Europe. I’ll link to the text of his speech when it’s available.

Lord Irvine stressed his

unswerving support

for the ECHR and the Human Rights Act, but made clear his view that British judges have shown too much deference to the Strasbourg court – more than the Human Rights Act 1998 requires or entitles them to show.

He said of section 2(1) of the Act that “its terms are simple”,

(1)   A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)   judgment, decision, declaration or advisory opinion of the European Court of Human Rights ..

and that it was “surprising” it’s given rise to any difficulties. He asserted repeatedly that it was clear from its wording and from the Parliamentary record that Parliament intended domestic courts to “have regard to”, to “consider” or to “bear in mind” Strasbourg judgments. He said

It is untenable to suggest that judges are entitled to treat themselves as bound

by them. The courts have, however, he argued, strayed considerably from what Parliament intended.

Lord Irvine said the problem began with what Lord Slynn said in his speech in Alconbury [2001] UKHL 23 at paragraph 26:

Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.

This, according to Lord Irvine, was

an unwarranted gloss on the statutory words

which has, since, led judges to proceed on the false premise that they are some sense bound or “as good as bound” by ECtHR rulings. He cited as an example Home Secretary v AF [2009] UKHL 28, in which Lord Hoffman said (paragraph 70), agreeing that AF’s appeal had to succeed because of the European Court’s ruling in A v UK, that

I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.

Lord Irvine pointed out that in that same case Lord Rodger, at paragraph 98, said that

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.

Lord Irvine also identified what he called a more nuanced variant of this idea, in the Supreme Court’s judgment in what he called “the culmination of a notorious line of cases” on housing (covered in depth at Nearly Legal) Manchester City Council v Pinnock [2010] UKSC 45. The Court said at paragraph 48 (in a judgment written by Lord Neuberger),

This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator[2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to “take into account” EurCtHR decisions, not necessarily to follow them. Where, however, 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.

Lord Irvine objected that Lord Neuberger had not explained why this would be “wrong”; and he criticised the idea that there is any “magic” in the fact that Strasbourg has issued a “clear and constant” line of decisions, which he said might just amount to

extended repetition of error

and said there’s no “alchemy” by which Strasbourg’s constancy changes the nature of the judicial task under section 2 of the Human Rights Act.

He said Lord Hoffmann had been led into error by excessive concern for the UK’s standing in international law, which he said ought to be no concern of domestic judges, who should avoid

straying into questions of foreign relations and statecraft

and should not attempt to short-circuit the international enforcement mechanisms of the Council of Europe. In any event, he argued that if judges seriously disagree with a ruling by the European Court of Human Rights, they should not simply “acquiesce to Strasbourg”.

Lord Irvine argued that part of the problem was the extent to which judges are steeped in the doctrine of precedent and judicial hierarchy, which has led them to see themselves as in a “subordinate” or “vertical” relationship to Strasbourg. Mentioning cases in which he said Strasbourg had rejected the balance of policy interests struck by British courts – S & Marper v UK and Gillan & Quinton v UK – he said British judges should be more assertive, or else they

should not be surprised to find themselves rolled over with increasing regularity.

He called for domestic courts to act, and be seen to act, as autonomous; and said it would damage their credibility if they appeared merely to be agents or delegates of Strasbourg. This was strong stuff; and Lord Irvine seemed to get more vigorous in his criticisms as his lecture went on.

Notably he criticised Lord Bingham (“even Homer nods”, he remarked) for what he said in Ullah v Special Adjudicator [2004] UKHL 26, at paragraph 20:

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.

Lord Irvine clearly disagreed flatly will all of this “prevailing orthodoxy”, pointing out

the enervating effect of this reasoning

in Ambrose v Harris (Procurator Fiscal) [2011] UKSC 43, in which Lord Hope seemed afraid (paragraphs 67-72)

to go further than Strasbourg has gone

as he put it more than once. Lord Irvine singled out for praise Lord Kerr’s dissenting judgment in that case, in which he said at paragraph 130

it would be particularly unsatisfactory, I believe, if, because of an Ullah-type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09, BAILII: [2010] ECHR 1373 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.

Lord Irvine stressed that domestic judges should not follow the “path of least resistance” offered by Ullah, but that, as he put it more than once, they must “decide human rights cases for themselves”:

This – no more, but certainly no less – is their constitutional duty.