UK Independent Human Rights Act review: our response

Theme One

The relationship between domestic courts and the European Court of Human Rights (ECtHR).

Question
The Review Panel has invited views on how the relationship is currently working, including any strengths and weakness of the current approach and any recommendations for change.

Scottish Government Response

53. In the view of the Scottish Government, the relationship between domestic courts in the UK and the European Court of Human Rights ("ECtHR") functions successfully and largely as intended.

54. It remains the case that the HRA does no more than require domestic courts and tribunals in the UK to "take into account" the jurisprudence of the ECtHR. Moreover, that requirement is subject to the further rider that they should do so only "so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen"^[19].

55. The Scottish Government notes that the Terms of Reference for the Review are themselves clear that the domestic courts and tribunals "are not bound by the case law of the ECtHR".

56. The requirement to take ECtHR jurisprudence "into account", but not to be rigidly bound by its decisions, remains the correct approach, and is the model that simultaneously delivers both the greatest alignment and the greatest flexibility.

57. The HRA is constructed in such a way as to ensure that the rights derived from the Convention are understood and applied with reference to their proper trans-national context, as rights which are universal and inalienable in nature, whilst at the same time allowing the domestic courts to apply those rights in a manner that is appropriate to the specific national circumstances of each individual case.

58. In taking this approach, including in section 2, the HRA demonstrates a proper regard for both the constitutional separation of powers and the principle of subsidiarity. It is an approach which values and respects the independence of the judiciary, and the vitally important role played by the national courts in reviewing decisions made by the executive and the legislature. At the same time it accords an appropriate level of deference to the right of Parliament and the duly-elected government (including the devolved institutions) to determine public policy and to legislate.

59. The requirement on the national courts to take ECtHR jurisprudence "into account" should therefore be understood as a necessary, and fully intentional, consequence of both the requirements of the Convention (and in particular the role accorded to the ECtHR) and of the policy decisions made by the UK Parliament when passing the HRA.

The Authority and Functions of the ECtHR

60. The jurisdiction of the ECtHR (defined in Article 32 of the Convention) extends to "all matters concerning the interpretation and application of the Convention". It is consequently the ECtHR which exercises ultimate authority in determining the meaning of the rights set out in the Convention. It is also the ECtHR which is ultimately entitled to decide whether or not a state party is in breach of its obligations under the Convention. Indeed, Article 19, which establishes the ECtHR, does so explicitly for the purpose of "ensur[ing] the observance of the engagements undertaken by the High Contracting Parties".

61. Given the role of the ECtHR as the ultimate source of a definitive interpretation of the Convention, it would be very odd indeed for the UK courts to have no regard to its jurisprudence when hearing Convention cases. That would clearly give rise to the risk of significant divergence or inconsistency, in a way that would ultimately defeat the purposes of the Convention as a pan-European human rights instrument which guarantees common standards across the territory of all members of the Council of Europe.

62. As a minimum therefore, it is clearly necessary for the domestic courts to be required to "take into account" the jurisprudence of the ECtHR. The question which follows is not whether this places too onerous a burden on the domestic courts. (It does not, and the courts would - practically, necessarily and inevitably - require to have regard to the ECtHR in some form even if section 2 of the HRA did not exist). Rather, the question which might legitimately be asked is whether this requirement is too weak, and whether it should be replaced by a requirement to follow the letter of ECtHR decisions (or at least of those issued by the Grand Chamber).

63. The Scottish Government believes that a stricter requirement of this kind would also be a mistake. It would unhelpfully constrain the discretion and judgement of UK judges and risk defeating the purposes of the Convention as an instrument which explicitly recognises not only a common European heritage but which also values individual national traditions. The availability of a "margin of appreciation" is explicitly intended to facilitate different routes to a common destination.

64. The Scottish Government therefore opposes any change to the current wording of section 2 of the HRA, and supports the continuation of the status quo. Within that, the Scottish Government believes strongly in the principle that the courts should be trusted to exercise their powers, independently^[20] and objectively and in a manner that ensures the law is interpreted and applied coherently, consistently and reliably, with the purpose of ensuring that every member of society is able to vindicate their rights and obtain justice.

65. Both the executive and the legislature should be hesitant to interfere with the exercise of judicial authority – not least because the principal effect of attempts to constrain the discretion of the courts may well be to obstruct the ability of the courts to find just and equitable solutions to the challenges thrown up by individual cases.

Connecting Domestic and International Systems

66. Retention of section 2 of the HRA in its current form is also supported by an understanding of the intentions of the UK Parliament when it originally passed the legislation

67. As is well known, the white paper for the Bill^[21] sought to "bring human rights home", in the sense of enabling individual rights-holders in the UK to seek a remedy in the domestic courts, rather than having to make individual application to the ECtHR under Article 34 of the Convention. That Article 34 right was however retained, so that rights-holders who had exhausted the remedies available in the domestic courts would continue to have the option of seeking a remedy from the ECtHR. There was no sense in which the remit given to the domestic courts was to be exercised in opposition to that of the ECtHR.

68. The HRA was therefore explicitly conceived as a mechanism which should connect the domestic legal system in each of the UK's three jurisdictions with that of the ECtHR.

69. From the start, the HRA has been intended to implement, and to complement, the rights identified, and the mechanisms established, at the pan-European level by the Convention. It would therefore be self-defeating and illogical for the HRA to do anything other than to require domestic courts to "take into account" the decisions reached by the ECtHR. Those decisions, understood as a coherent but evolving body of case law, serve ultimately to define both the intent and the legal substance of the Convention.

70. It is essential in that context to recognise that Convention cases heard in the UK courts are not solely of national significance. Such cases give life and substance to the Convention rights and they necessarily have wider relevance. In fact, significant cases decided in the UK courts directly enrich the jurisprudence of the entire Convention system and may well prove influential in other jurisdictions. Sir Nicolas Bratza , a former President of the ECtHR, has for example pointed out that one reason the ECtHR may wish to hear a case which has previously been decided in the UK courts is precisely because the UK decision may have application in other countries, where national courts are addressing the same or a similar issue^[22].

71. As a matter of policy applicable to Scotland, the Scottish Government would supplement this observation on the transnational value of the Convention system by drawing attention to the particular desire which has been expressed by the Scottish Parliament to maintain maximum alignment with European systems and norms.

72. Whilst that policy objective has been expressed primarily in relation to membership of, and alignment with, the European Union (with Scotland having voted by 62% to 38% to remain within the EU), it also applies to the Council of Europe. As members of the Panel will be aware, the policy of the Scottish Government is for Scotland to become a fully independent nation, within the wider international frameworks established by multinational organisations such as the EU, the Council of Europe and the United Nations.

73. It is therefore very much part of Scottish Government policy to maintain full participation in mechanisms such as the Convention. Doing so is also clearly in the best interests of the UK. Further, that ongoing commitment is essential to the maintenance of the rules-based international order which has prevailed since 1945. Changes to the HRA which had the effect of distancing Scotland and the UK from the Convention or the Council of Europe would be strongly opposed by the Scottish Government.

Further Specific Questions asked by the Review Panel

Question
a) How has the duty to "take into account" ECtHR jurisprudence been applied in practice? Is there a need for any amendment of section 2?

Scottish Government Response

74. The Scottish Government recognises that there has been an active, and necessary, debate which has sought, over the last two decades, to explore the full meaning and implications of the obligation to take ECtHR decisions "into account".

75. Importantly, the primary force driving that debate has been the work of the courts themselves, and in particular their ongoing need to reconcile potentially competing demands within the sophisticated and organically evolving legal framework provided by the Convention. The existence of such debate is in fact an indication of the strength and vigour of the system as a whole (and of the Convention as a "living instrument") and not, as some commentators may wish to believe, a sign of weakness.

76. In simplistic terms, that debate has centred on the question of whether the UK courts should "mirror" ECtHR jurisprudence, by following the line originally established by Lord Slynn (in Alconbury Developments^[23]) and Lord Bingham (in Ullah^[24]).

77. In that sense, the question has been whether the UK courts should proceed (as Lord Bingham proposed) on the basis that while ECtHR "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 ECtHR. In doing so Lord Bingham further proposed that "[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less".

78. Set against that view has been the proposition that courts in the UK should have the freedom to explicitly diverge from the path taken by the ECtHR, either by innovating in ways that go further than existing ECtHR jurisprudence (for example by extending the scope of certain rights), or by concluding that existing ECtHR case law is either not applicable to the case in front of the court, or is mistaken or outdated in some key respect.

Possibilities and Choices

79. The reality of course is that a range of possibilities simultaneously exist, and are contained within, the current wording of the HRA. The existence of those possibilities is itself consistent with the legislative intention of Parliament.

80. For the UK courts, the framework provided by the HRA establishes boundaries within which it is for the courts themselves (and in particular for the UK Supreme Court) to chart a coherent long-term path. Amongst the possibilities available to them are the options to take a looser or a more rigid view of the extent to which they should take account of ECtHR case law, and indeed to adapt their own approach in the light of experience.

81. In the parliamentary and the political sphere, there are also choices to be made, although the debate is qualitatively different in nature. To the extent it remains necessary to make decisions about the UK's ongoing relationship with the Convention and the ECtHR, such decisions represent a choice to be made between different conceptions of the UK as a state and as a society – between a future that is timid, introverted and isolationist, or one that is confident, collaborative and international.

82. There is, however, a requirement to recognise a further important truth that applies whether one happens to believe that the UK courts have been unnecessarily cautious in wishing to avoid outpacing the ECtHR's interpretation of the Convention or have been unduly adventurous in seeking to break new ground.

83. The reality is that the decisions in each individual case have been the result of careful deliberation by the courts concerned. That careful analysis and the formulation of a binding decision is precisely what the courts exist to do and it is the essence of both their constitutional function and their professional expertise.

84. It therefore seems singularly unproductive to sift through the detail of every significant Convention case which has come before the UK courts in an attempt to second-guess the decisions which have emerged. Whilst the Review Panel is of course comprised of eminent and experienced individuals, there is no particular reason to suppose that it (or any similar body) is better placed than the UK judges hearing each case to identify those instances where the "right" decision has been reached, and those where the courts may have taken a "wrong" turning.

Alternative Formulations

85. Of rather more immediate relevance is the question of whether the requirement set out in the HRA could realistically be expressed in any other way, and if it could, what potentially adverse or beneficial consequences might result.

86. Some obvious potential alternatives include the possibilities that the HRA should:

• say nothing about ECtHR jurisprudence;
• explicitly direct the courts to follow ECtHR decisions;
• recognise the existence of ECtHR jurisprudence but place no particular obligation on the courts to have regard to it;
• direct the courts to give primacy to domestic case law or common law over ECtHR jurisprudence
• prohibit the courts from taking account of ECtHR jurisprudence.

87. All of these alternatives can readily be dismissed as less desirable than the current formulation of section 2 of the HRA.

88. The reality, of course, is that an effective court will quite properly have regard to those matters which it is persuaded are material to the case in front of it. Where ECtHR jurisprudence is germane to the particular case, the court will necessarily be inclined to take that jurisprudence into account. In doing so, it may follow the decision of the ECtHR more or less closely, depending on the facts of the case and the relevance of the decision. It will naturally also weigh ECtHR case law against available domestic judgments, where both shed light on the issues under examination.

89. Nothing is to be gained, and much stands to be lost, from embarking on any change to the current wording of section 2 of the HRA. The Scottish Government therefore strongly urges the Review Panel to endorse the HRA as it currently stands and to reject any suggestion of change.

Question
b) When taking into account the jurisprudence of the ECtHR, how have domestic courts and tribunals approached issues falling within the margin of appreciation permitted to States under that jurisprudence? Is any change required?

Scottish Government Response

90. The concept of a national "margin of appreciation" is central to the functioning of both the Convention and the ECtHR.

91. It reflects the reality of a system which applies across the 47 member States of the Council of Europe and which must therefore be capable of serving nations and societies which subscribe to a common European identity and democratic tradition, but which are nonetheless socially and culturally very diverse.

92. Crucially, it is this simultaneous emphasis on shared values and diverse national traditions that is one of the core strengths of the Convention and its institutions.

93. Moreover, the overall emphasis within the system on subsidiarity and the primary responsibility which each State Party has to secure the Convention rights within the scope of its own jurisdiction has been given further formal expression in Protocol 15 to the Convention^[25], as a result of the 2012 Brighton Declaration^[26].

94. The UK Government was instrumental in formulating the declaration and in the development of the protocol, including in particular its emphasis on subsidiarity and the margin of appreciation. The UK ratified the protocol in April 2015 (although it has not yet come into force, as a result of delays by other States Parties). The importance of these principles was again re-iterated in the 2015 Brussels Declaration^[27], which inter alia invited the ECtHR "to remain vigilant in upholding the States Parties' margin of appreciation".

95. The degree to which the task of interpreting and applying Convention rights is explicitly understood to belong first and foremost with the national courts therefore merits special emphasis.

96. It is the national courts which are, intentionally, the first available forum for the protection of human rights, and it is the national courts which are expert in relation to both national law and the factors relevant to assessing the public interest in the particular context of the society in which a case has arisen.

97. The ECtHR may review the decisions reached by the national courts, and it may reach a different conclusion having had regard to the broader, trans-national context in which the Convention applies. That process is itself important in promoting "judicial dialogue" between the national courts and the ECtHR. But the ECtHR has been clear that national authorities are best placed to understand context-specific factors such as those which determine how the qualifications and limitations allowed for in the Convention should be applied at the national level. As the former UK ECtHR judge, Paul Mahoney, has observed:

"if the independent and impartial national courts, who are better acquainted with the democratic society of their country, have properly and fully considered the contested legal measure on the basis of the relevant human rights standards, there will need to be strong reasons for [the ECtHR] to substitute [its] own, different assessment for that of the national judges."^[28]

98. For their part, the domestic courts have successfully translated this international law concept of a margin of appreciation into a distinct and more detailed mechanism which accords appropriate respect to the role of the executive and the legislature in determining public policy.

99. Both are premised on ideas of judicial restraint which respects democratic institutions and acknowledges where institutional ability/capacity lies to best make certain decisions.^[29]

100. The Scottish Government considers that the domestic courts are well used to making these assessments and do so appropriately. The Scottish Government respects the independence and objectivity of the domestic courts to reach just and equitable solutions in individual cases.

101. Accordingly, the Scottish Government does not believe that there is any case for changes in relation to the manner in which courts in the UK approach issues falling within the margin of appreciation which properly belongs to individual States Parties.

Question
c) Does the current approach to 'judicial dialogue' between domestic courts and the ECtHR satisfactorily permit domestic courts to raise concerns as to the application of ECtHR jurisprudence having regard to the circumstances of the UK? How can such dialogue best be strengthened and preserved?

Scottish Government Response

102. The Scottish Government considers the scope for "judicial dialogue" between the domestic courts and the ECtHR to be an important feature of the Convention system. This is a strength and not a weakness, and is very much a feature to be retained and valued.

103. Judicial dialogue in this sense contributes to ensuring both coherence and consistency in the way Convention rights are applied by the domestic courts and the further clarification and evolution of a common pan-European understanding of the full scope and effect of those rights.

104. In practice, the process of judicial dialogue between the UK courts and the ECtHR can be regarded as one of convergence and adaptation, with the courts in each jurisdiction (and in particular the UK Supreme Court and the ECtHR) recognising the value to be derived from a close examination of the reasoning set out in the decisions of the other, but without any necessary requirement to follow that reasoning where, in the judgment of the court, there are good grounds for believing that an alternative is to be preferred.

105. This can be seen for example in the convergence of the respective courts in the cases of Al-Khawaja^[30]and Horncastle^[31]. Giving judgment in Horncastle (in 2009), Lord Phillips (at paragraph 11), rejected the argument that the UK Supreme Court should simply follow the decision of the ECtHR in Al-Khawaja.

11. … The requirement to "take into account" the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.

106. Having been invited to reconsider the position previously adopted by the ECtHR, the Grand Chamber ultimately agreed with the UK courts in finding that a conviction based solely or decisively on the statement of an absent witness would not automatically or inflexibly result in a breach of Article 6^[32].

107. A further example of such "valuable dialogue" occurred in relation to whole life sentences. This was the focus for political controversy at the time, with an initial ruling by a Chamber of the ECtHR (in Vinter^[33])that there had been a breach of Article 3 being followed by a judgment in the Court of Appeal (for England and Wales) which rejected that assessment (McLoughlin^[34]). A further examination of the matter by the ECtHR – first by a Chamber and then by the Grand Chamber (Hutchinson^[35]) –resulted in a recognition that the UK position was compliant, or at least within the allowable national margin of appreciation.

108. Whilst these cases did not directly engage with the law of Scotland (which was never in question in terms of compliance with Convention rights) the process itself clearly demonstrated a willingness on the part of the domestic courts to push back against reasoning by the ECtHR, and an openness on the part of the ECtHR to an alternative interpretation. It also helpfully underlines that individual national systems (including those within the UK) can rationally adopt approaches which are consistent with each other as part of a coherent overarching human rights mechanism, but do not have to be identical in relation to every last detail.

109. A further significant feature of such judicial dialogue is the recognition that courts can reasonably disagree in their conclusions even when presented with the same facts. In the case of Al-Skeini^[36] both the House of Lords (by a majority)^[37] and the ECtHR^[38] came to broadly the same conclusion in relation to the general principle that the Convention and the HRA can have extraterritorial application. However they disagreed on whether the specific conditions "on the ground" amounted to the exercise of effective control by the UK.

110. Since the ECtHR has ultimate authority to determine the meaning and application of the Convention, its assessment prevailed in the Al-Skeini case. However, in reaching its conclusion the ECtHR gave very careful consideration to the reasoning not just of the House of Lords, but also of the lower courts. The final ruling was therefore informed not just by the knowledge and expertise of the Grand Chamber of the ECtHR, but by that of the other courts which had engaged with the case. On any measure that constitutes a remarkably powerful mobilisation of the best collective legal expertise available at both the national and the European level.

111. There can certainly be no doubt that the ECtHR itself attaches great weight to the reasoning of national courts, and perhaps especially to the high quality judgments delivered by the UK courts. As the former President of the ECtHR, Sir Nicolas Bratza, has remarked, the ECtHR has:

"been particularly respectful of decisions emanating from courts in the United Kingdom since the coming into effect of the Human Rights Act and this because of the very high quality of the judgments of these courts, which have greatly facilitated our task of adjudication. In many cases, the compelling reasoning and analysis of the relevant case-law by the national courts has formed the basis of the Strasbourg Court's own judgment.^[39]"

112. Again, the Scottish Government would argue that the decision-making involved, of the part of both the national courts and the ECtHR, is precisely of the kind that the courts themselves are best placed to undertake.

113. What wider society expects of the courts at all levels is that they should apply the law in a manner that is just and legally-correct, but also consistent, predictable and capable of evolving rationally and coherently over time. That process is one which is facilitated by "judicial dialogue" of the kind which takes place between the UK courts and the ECtHR. It is a process which self-evidently works, in a manner that is both organic and successful, and there is no objective or reasoned case for legislative change.