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.