Sadiq Khan: let me guide you where I think you’re going

by Carl Gardner on June 4, 2014

Writing in the Telegraph yesterday, Labour’s shadow Justice Secretary Sadiq Khan said that

when the Labour government in 1998 brought in a British Bill of Rights – the Human Rights Act – we deliberately drafted the wording to protect British courts. It meant they’d be free to disagree with the European Court of Human Rights in Strasbourg, and that the sovereignty of the UK would not be undermined. The wording, contained in Section 2 of the Human Rights Act, very clearly states that our courts only have to take into account Strasbourg judgments, not be bound by them.

He’s right about that. Section 2(1) says

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 …

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

But, Khan went on,

at times, our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions … And it’s not just me saying that. Senior judges and former Law Lords have also raised concerns. Former Lord Chief Justice Lord Judge and former Lord Chancellor Lord Irvine both believe there’s a problem with how our courts have interpreted Section 2 of the Human Rights Act.

He gives no examples to demonstrate the problem. But he says Labour intends to solve it:

We will make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing. We believe we can achieve this shifting of power back to our courts by publishing guidance alone, but I don’t rule out re-legislating to make things doubly clear if matters don’t improve.

The immediately striking thing about Sadiq Khan’s announcement is that he’s proposing to influence what judges do by means of guidance. That, as Mark ElliotDavid Mead and Obiter J have all written, is an odd thing to suggest.

Government can’t unilaterally alter the meaning or application of an Act of Parliament by issuing its own guidance – at least unless ministers have been explicitly given such a power by Parliament. A judge’s job is to give effect to Parliament’s intention as expressed in legislation: not to the will of government. So whatever “taking account” of Strasbourg case law means, judges cannot find the answer in guidance from a government minister. Khan’s guidance wouldn’t, and couldn’t, have any effect. What remains of his policy is simply that he doesn’t rule out amending the Human Rights Act at some point.

On human rights, as on the EU “In/Out referendum” question, Labour wants to position itself just inside the Conservatives – offering something to reformers and sceptics, but not as much. Chris Grayling spoke last year of Conservative plans to legislate to “make the Supreme Court supreme”; Khan’s announcement is Labour’s calculatedly more moderate response. It’s not much better, though, as policy, than the incoherent triangulation Labour indulged in before the last election. It’s essentially political. It makes no real commitment, and says nothing really new.

Judges already know they’re not bound by Strasbourg judgments of course, and seem in any event to be developing the more independent line politicians now say they want. Famously in the Ullah case in 2004 Lord Bingham set out what’s come to be called the ‘mirror principle” (para. 20)

The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less

which is really just a shorthand way of expressing the position as set out more fully in 2010 by Lord Neuberger in Manchester City Council v Pinnock (see pargaraph 48 of the judgment):

This court is not bound to follow every decision of the European court. 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 European court which is of value to the development of Convention law: see e g R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [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 City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to ‘take into account’ European court 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.

But Sir John Laws said in a lecture last November (para. 25) that

I have in common with others come to think that this approach represents an important wrong turning in our law

by which he was referring to Lord Neuberger’s approach, not just Lord Bingham’s; and Lord Judge said in a speech in December (paras. 40-41) that

There has been a considerable difference of views between judges in this jurisdiction, both in judgments and in public lectures, about the Human Rights Act and the particular wording of four words in s.2(1) of the Human Rights Act. This provides that our courts “must take into account” the decisions of the court in Strasbourg. The obligation is mandatory. But what does it actually mean? …

The different arguments are superbly addressed by Sir John Laws in his very recent Hamlyn lecture, and indeed when I read it, as I did on Monday, I reduced many of the things I was going to say on this issue. Personally, I have never doubted, and have spoken publicly to the effect that the words mean what they say. To take account of the decisions of the European Court does not mean that you are required to apply or follow them. If that was the statutory intention, that would be the language used in the statute.

Recently the Court of Appeal felt able to disagree with the Grand Chamber of the European Court over whole-life orders; and I think over the next few years, British judges will become more assertive when they think Strasbourg is wrong. Sadiq Khan no doubt expects so too, which is why he thinks he’ll get the result he wants without really doing anything. Any guidance he gives is likely to follow them – not the other way round.

{ 2 comments… read them below or add one }

1 Tim June 5, 2014 at 20:00

So Strasbourg is an advisory body rather than a real court handing down binding precedents? Then what is to stop any signatory to the ECHR committing HR abuses all willy nilly and then turning around and saying ‘It’s OK, our national courts have decided that this is not human rights abuse.’

This government thinks ‘take into account’ means ‘note and ignore.’ ‘Take into account’ means ‘optional’ and I refuse to believe that was the intent of those who set up the court in the first place.

2 Robert June 10, 2014 at 13:30

Presumably, Tim, any signatory to the convention that continued to abuse human rights “willy nilly” would find that some of the people abused would take their case to Strasbourg, where a judgement against the country in question *would* be binding (unless they left the convention, obviously).

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