Judge Pinto De Albuquerque finally says it like it is

English tabloids and the Tory right have been undermining European Court of Human Rights judgments for years now, so it is little surprise that Theresa May has hinted that the Tories will fight the 2020 election promising to leave the Council of Europe.  If she is successful in doing so, she will be riding on a wave of populist support that has been present for well over a decade. My last post argued that the attacks on the UK judiciary after Miller was merely more of the same for the populist press and politicians. Of course, I failed to mention the powerful role of UK judges in the downgrading of Strasbourg's legitimacy.  This has been consistent, both extra-curially but also in famous judgments like Horncastle. The taming effect of these judicial interventions on the Strasbourg Court has been palpable. Today a dissent in Hutchinson v UK finally shouted back.  The judgment voiced what we've been witnessing for some time now, not least in the roll back over prisoners' voting rights and over the classification of life sentences. The desperation is palpable in Pinto De Albuquerque's tone.   This rare outburst suggests that Strasbourg is beginning to sense that it has little left to lose. It is, after all, an institution which stands for everything the new populism rejects.  

I am quoting the most relevant part of this judgement here to remind us all what can happen when the legitimacy of our leading liberal institutions are continuously questioned.  If this can happen to Strasbourg, it can happen at home too.  The populist response to Miller is just the beginning.

Extract from Judge Pinto De Albuquerque judgment issued today:

V. What lies ahead for the Convention system? (§§ 35-47)

A. The seismic consequences of the present judgment for Europe (§§ 35-40)

35. The Court of Appeal stated that it was right in Bieber and that the Court was wrong in Vinter and Others. Now, the Grand Chamber is backtracking from Vinter and Others and admitting that the Court of Appeal was right and English law already had, since at least Bieber, a Convention‑compatible parole mechanism for lifers. This is not an isolated event. In Al-Khawaja and Tahery, the Grand Chamber accepted the principle set out in the Supreme Court’s Horncastle judgment, and in Horncastle v. the United Kingdom, the Chamber found no violation of Article 6 despite the use of hearsay evidence leading to the conviction. After the Al-Khawaja and Tahery retreat on the issue of conviction based solely or to a decisive extent on hearsay evidence, the RMT regression in the role of other international sources of law in the interpretation of the Convention labour rights, the Animal Defenders reversal on the issue of prohibition of political advertisement, and still suffering from the ongoing Hirst saga on the voting rights of prisoners, the Court is faced with an existential crisis. The pre-catastrophic scenario is now aggravated by the unfortunate spill‑over effect of Hirst on the Russian courts.

36. No great effort is needed to identify the source of the crisis. It lies in the attractive force of the Horncastle “rare occasions” argument. The problem is that “rare occasions” tend to proliferate and become an example for others to follow suit. Domestic authorities in all member States will be tempted to pick and choose their own “rare occasions” when they are not pleased with a certain judgment or decision of the Court in order to evade their international obligation to implement it, especially when the issue is about the protection of minorities, such as prisoners, LGBT people, asylum seekers, migrants, aliens, Roma and other non-State peoples living in Contracting Parties, such as, for example, the Kurdish people, to mention but a few. There is always a minority that the majority is prone to treat as a scapegoat for all the ills in society, by imposing on them objectionable restrictions and limitations on the exercise of Convention rights and freedoms.

37. The risk of self-interested manipulation becomes intolerably high when domestic authorities pretend that they are only bound by a “clear and constant” line of Strasburg case-law, denying the res interpretata effect to “incongruous”, “stray”, “overly broad” Chamber judgments or even Grand Chamber judgments. The domestic authorities’ test for acceptance of the Court’s judgments guidance then becomes even more discretionary, based on an admittedly very fluid distinction between clear/unclear, constant/not constant case-law, allowing for the rejection of the binding and interpretative force of any Court judgment on new or polemic issues. As if the Convention system did not have its own internal mechanisms for guaranteeing consistency and coherence, including, inter alia, referral to the Grand Chamber and the office of the Jurisconsult. As if any attempt by the Court to enter unchartered waters or to change course had to be accorded an ex post fiat by domestic authorities. As if, ultimately, the domestic authorities were entrusted with the power of Article 19 of the Convention, and not the Court.

38. In this context, the present judgment may have seismic consequences for the European human-rights protection system. The majority’s decision represents a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards. If the Court goes down this road, it will end up as a non-judicial commission of highly qualified and politically legitimised 47 experts, which does not deliver binding judgments, at least with regard to certain Contracting Parties, but pronounces mere recommendations on “what it would be desirable” for domestic authorities to do, acting in an mere auxiliary capacity, in order to “aid” them in fulfilling their statutory and international obligations. The probability of deleterious consequences for the entire European system of human-rights protection is heightened by the current political environment, which shows an increasing hostility to the Court. As one commentator put it:

“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011. Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”

Lord Mance confirms this assessment:

“I have heard it said that, when the Strasbourg court disagrees with a decision taken in France, the blame is France is directed at the French decision-maker, whereas, in the United Kingdom, it would be directed at the Strasbourg court.”

Lord Moses is of the same view:

“Criticism of our judges has been diverted onto foreign judges in an international court... It was hoped that by increasing the power of judges to construe and apply the Convention in solving domestic challenges to the actions of public authorities, the power of the judges in Strasbourg would be reduced. What a paradox, that the attempts to diminish the force of Strasbourg influence should thereafter have merely strengthened vociferous complaint as to the invasive growth of what is condemned as alien jurisprudence!”

Lord Neuberger calls this campaign “exaggerated” and “slanted”. In fact, the Strasbourg-sceptic rhetoric is not really new. The easy, superficial scepticism indulged in by the cynics and the contemptuous, inconsequent criticism expanded by the scoffers has always been there. It reflects a deep‑rooted attitude vis-a-vis international law and courts, which disputes the universality of human rights.

39. The fact is that some domestic authorities have always been reluctant to learn from the Court, considering the good of human rights as being for export only, not for import. To put it in the words of Lord Hoffmann:

“[W]hen we joined, indeed, took the lead in the negotiation of the European Convention, it was not because we thought it would affect our own law, but because we thought it right to set an example for others and to help to ensure that all the Member States respected those basic human rights which were not culturally determined but reflected our common humanity”.

In his 2009 Judicial Studies Board Annual Lecture, Lord Hoffmann made the point even clearer, pledging against uniformity of the application of the Convention “abstract rights” and attacking in severe words “the basic flaw in the concept of having an international court of human rights to deal with the concrete application of those rights in different countries.” The avowed purpose was to put in question the authority of the Court to set European-wide human-rights standards. This approach squares perfectly with a certain Weltanschauung which was aired by Milton’s The Doctrine and Discipline of Divorce in these terms: “Let not England forget her precedence of teaching nations how to live.”

40. Seen through these lens, the relationship between national law and the Convention is peculiarly unbalanced: the impact of national law on the Convention should be maximised, whereas the impact of the Convention on the domestic law should be minimised, if not downright rejected, sometimes even with an explicit call for solutions that are supposedly home-grown and sensitive to Britain’s legal inheritance and that would enable people to feel they have ownership of their rights. In this context, the “human rights diversity” argument reveals its real face as a politically unidirectional, sovereigntist card, played with regard to the import of human rights and justifying the refusal of “alien”, i.e., Convention standards imposed by an international court. At the same time, the “human rights diversity” card is consciously downplayed with regard to the export of human rights and the imposition, by means of an international court, of domestic values and policies on the other Contracting Parties. Of course, this also entails a biased understanding of the logical obverse of the doctrine of the “diversity of human rights”, namely the doctrine of the margin of appreciation: the margin should be wider for those States which are supposed “to set an example for others” and narrower for those States which are supposed to learn from the example. This evidently leaves the door wide open for certain governments to satisfy their electoral base and protect their favourite vested interests. In my humble view, this is not what the Convention is all about.



What is so extraordinary about the public response to Miller?

Remember Catgate? When Theresa May blamed a local court for blocking the deportation of a Bolivian citizen over his pet cat?  Remember the rabble that rose despite the then Minister of Justice, Kenneth Clarke, correcting the misrepresentation? The story told us a lot about how much respect the right of the Tory party have for the rule of law, how they twist judgments to further their own political agenda, and it told us a lot about how much respect our Prime Minister has for judges.   It taught us about the right wing press too. Despite widespread criticism of May’s mendacious attack on the judgment, the Daily Mail continued to defend her view that the cat saved the day. 

Why wouldn’t it?  The tabloid press, and the Daily Telegraph, had been peddling their own twisted account of human rights cases with determination since the Human Rights Act came into force, casting the rights of prisoners and immigrants as a reason to junk Europe altogether. Catgate was, though, a rare moment in British politics. Rare not because a senior member of our government had publicly rejected the legitimacy of a judicial decision, but rather because someone senior in the same government finally had the courage to stand up and correct it.  Rare, because attacks on judicial attempts to stand up for human rights are ubiquitous on the right of British political discourse.  These attacks are a political strategy and an expression of a particular ideology. They are not occasional incidents in an otherwise stable constitutional settlement.

The examples are numerous, but I will name a few. Remember the drawn out legal battle between Abu Qatada and Theresa May? Remember the fury that rained upon the European Court of Human Rights, even though it was the Court of Appeal that ultimately made the decision to block Qatada’s deportation? Theresa May stood up in Parliament during and after the debacle and attacked the decisions using them as a basis to rubbish the European Court of Human Rights ‘interpretation of human rights’, for repealing the Human Rights Act and for introducing new legislation to undermine the appeal rights of those facing deportation or extradition. She was led by the tabloid press on this for years. 

This was not the first time May had used a decision that went against her to support her opposition to the Human Rights Act and membership of the European Convention on Human Rights.  Prior to this, she had declared herself and the government ‘disappointed and appalled’ by a Supreme Court decision that granted review rights to persons placed on the sex offender’s register.  The decision was used as a basis for introducing a British Bill of Rights, and was clearly an attack on the use of Convention rights by the highest Court in England and Wales. May was here only following what the Daily Mail had already set in place in its response to the judgment. Given all this, it is small wonder that May turned her attack on ‘left wing lawyers’ at the recent Tory party conference.  She was speaking out what she had been thinking for years, now with permission to junk political correctness, and her party supporters (fed on a diet of tabloid law reports) loved her for it. 

But May is by no means the only one who has attacked rights regarding judgments while seeking to consolidate political power.  She was following the lead of others. A sizeable proportion of Parliament rose up against the rule of law over prisoner voting. The Hirst decision handed down in 2005 has never been implemented into English law. Why? Because, at first a Labour government under threat decided to bury the decision before an election, rightly fearing what political support for this European human rights decision would evoke in the tabloid press. Then, the thought of giving prisoners the right to vote made David Cameron sick to do so.  In defiance of the UK’s clear treaty obligations, a sizeable majority of Parliament felt the same as Cameron. They said so in a lengthy debate, held 6 years after the initial decision and led by a cross party alliance of David Davis and Jack Straw.   The mantra was ‘if you break the law you can’t make the law’, and Parliamentarians used it to great effect to stand up proud against the European Court of Human Rights and to reject its decision. The rule of law was mentioned by the Attorney General, Dominic Grieve, in that debate. He told them that the UK government was bound by its international obligations, and even suggested that the Government would be behaving ‘tyranically’ in not following a judicial decision against the Crown. His measured plea didn’t move Parliament much, who proudly rejected the legitimacy of the decision, and have done so since, much to the Daily Mail’s approval.

The short point is this. The reaction to Miller is extraordinary in one sense.  Not because politicians and the right wing press are attacking the judiciary.  No not at all.  It is extraordinary because so many across the establishment, across the political elite, and across society as a whole, are standing up for the rule of law, and vehemently criticizing the tabloid’s populist account of the judiciary as ‘enemies of the people’.  The protests may have come too late however.  They come after years and years of assault on judgments, and a mute public and political response to those assaults.  They come after years and years of politicians and media failing to engage honestly and decently with the substance of judicial decisions.  Instead of respectful disagreement, critical popular opposition has been voiced in manipulative representations of judicial reasoning, and commonly a wholesale rejection of the legitimacy of judges to make decisions like this in the first place (either because they are ‘foreign judges’ or because they are local judges adjudicating on ‘foreign rights’). But this time, the public mood has changed. Now a considerable cross section of the nation is appalled at the right wing press, and politicians, at doing what they have been doing for well over a decade. Because this time the assaults affect the rights of so many of us, and so many of our rights are under threat. This time the sovereignty of Parliament is at stake. This time, the judges and the issues are British and not European. This time, the rights holders aren’t criminals, terrorist suspects, sex offenders or immigrants.  This time, the rule of law has protected us.  This time, we stand up the rule of law.