A senior judge has argued that the European court in Strasbourg should not have the last word on interpreting the human rights convention. Delivering the third of his Hamlyn lectures in London on Wednesday evening, Sir John Laws said that national courts should follow their own interpretations of human rights issues.
Laws, the longest-serving lord justice of appeal, questioned an important principle laid down nearly 10 years ago by Lord Bingham, who was then senior law lord.
In a case called Ullah, Bingham had said that the correct interpretation of the convention could be authoritatively expounded only by the human rights court in Strasbourg. “The meaning of the convention should be uniform throughout the states [that are] party to it,” Bingham added.
But Laws disagreed. “There may perfectly properly be different answers to some human rights issues in different states on different facts. I think the Strasbourg court should recognise this.”
His comments will be welcomed by the justice secretary, Chris Grayling, who believes that the human rights court has lost its focus and wants to become a supreme court for Europe. But Laws made it clear he was not questioning the court’s powers to make rulings that were binding on the UK under international law.
Article 46 of the convention to requires the UK to “abide by the final judgment of the court” in any case to which the UK is a party. And section 2 of the Human Rights Act 1998 requires courts in the UK to “take into account” decisions of the Strasbourg court. But those provisions did not mean our courts were bound by Strasbourg rulings against other countries, the judge stressed.
“The historic role of the law of human rights is the protection of what are properly regarded as fundamental values,” said Laws. “It is not to make marginal choices about issues on which reasonable, humane and informed people may readily disagree.”
More broadly, Laws was concerned that public concern about legal principles imported from the EU court in Luxembourg and the human rights court in Strasbourg might prevent English common law from continuing to develop effectively.
He explained that the common law had been continuously refined, allowing governments to operate effectively while preventing them from acting oppressively. English law had achieved this by drawing inspiration from continental sources. These included continental legal principles such as legitimate expectation and proportionality as well as the law of privacy, all of which have become part of English law during his career as a barrister and then a judge.
But these principles would not work unless the public accepted them, he asserted. They depended on public confidence. Laws was concerned that “political controversies and resentments concerning Europe” might undermine the confidence people should have in the law’s “use of principles which were born or have flourished in Luxembourg and in Strasbourg”.
The threat took different forms. “As for Luxembourg, it is intertwined with fear of the loss, or at least the erosion, of state sovereignty. As for Strasbourg, it is intertwined with a resentment felt among many shades of opinion that, under the pressure of the Strasbourg court, the law of human rights has got too big.”
But there were antidotes to both these fears. Concerns about Strasbourg could be dealt with by recognising that courts in the UK could decide on the correct interpretation of human rights law, despite Bingham’s ruling in the Ullah case. And concerns about Luxembourg could be assuaged by recognising that the UK had not surrendered its sovereignty. EU law, although effective in the UK, had the status of subordinate legislation, he explained. It could not abrogate fundamental rights.
This was a typically elegant lecture by one of the most literate and thoughtful members of the bench. But it offers a solution to something that may not be much of a problem. There is little public outcry against the common law importing European principles such as proportionality, so long as it is the national courts that are applying these principles. On the contrary, public opinion wants the human rights court to make greater use of another continental device, the “margin of appreciation” derived from French administrative law and better translated as “margin of judgment”. This would allow more leeway to the UK’s courts.
Laws summed up his series of three lectures by saying that the constitutional balance between law and government was harboured and matured by the common law’s process of continuous self-correction. This allowed the orderly development of state power. The challenge was to keep the constitutional balance and thus give the principles of the common law – reason, fairness and the presumption of liberty – as big a space as possible.
But if we kept faith with that balance, he concluded. “we shall enjoy a noble inheritance and may anticipate a tranquil future”.