Flickr/ex_libris_gul. Some rights reserved.

When two senior judges cross swords over a fundamental constitutional  question we sit up and take notice. The judges are Dean Spielmann, President of the European Court of Human Rights, and Lord Judge, recently retired Lord Chief Justice of England and Wales. The question is whether decisions and opinions of the Strasbourg Court override or “trump” the authority of the United Kingdom Parliament. It is particularly significant because the Prime Minister has declared that if his party is elected to government next May it will seek to repeal the Human Rights Act and remove any binding effect on the United Kingdom of European Court rulings. The promise is to “end the ability of the European Court to change British laws.” In its press release announcing this policy, the Conservative party quotes Lord Judge, implying his support for its proposals.

Judge Spielmann in “A View from Strasbourg” (Counsel magazine , April 2014), defends his court. In particular he denies that the Court has been guilty of “mission creep” by expanding its jurisdiction beyond that contemplated by the member states. Judge Spielmann argues that the Convention is a living instrument which must be constantly re-interpreted to take account of social change. Here we see echoes of the debate that has taken place within and beyond the Supreme Court of the United States over the interpretation of the US Constitution. It is the “originalists” and “strict constructionists” who say that the Court must regard its scope as fixed by what was known and understood by those who drafted it. But theirs is not the predominant view. In the US and elsewhere it is generally accepted that there must be some latitude within the broad principles of the Constitution to re-interpret it in line with changes in public attitudes.

Underlying the claim of “mission creep” is the key source of anxiety: that the Strasbourg court is claiming authority to usurp the sovereignty of the British Parliament  - in other words “to change British laws”. Judge Spielmann rejects this accusation.  

“It seems clear to me”, he says, “that where a national Supreme Court has reached a decision taking into account the Convention guarantees and the Strasbourg case law, only exceptionally should the European Court impose its view on that of the national authorities, even if it might itself have come to a different conclusion.”

It is on this point that Lord Judge takes up the cudgels.  In  his response (“A View from London”, Counsel magazine, October 2014) he takes grave exception to the word “impose”. “My fundamental concern, and it is the root of my disagreement with the President, is sovereignty.”

He reads Judge Spielmann as asserting the right of the Court – even if only as a last resort - to overrule or invalidate a decision of the UK parliament. Lord Judge readily accepts that our sovereign Parliament “is vested with authority to defer its sovereignty and pass it to any body it may choose.” And he acknowledges the binding authority over the United Kingdom of the European Court of Justice in Luxembourg conferred by the European Communities Act 1972. But  the European Human Rights Convention, he says,  is different. The United Kingdom in article 46(1) of the European Human Rights Convention has undertaken to “abide by the final judgment of the Court in any case in which they are parties”. And it is obliged by article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms” defined in it. 

Lord Judge takes issue with the assertion by Judge Spielmann that “in some situations the rule of law trumps the majority view.” The context for this observation is Judge Spielmann’s defence of the democratic aim of the Convention. He agrees there is sometimes a tension between the rule of law and democracy. But democracy must operate within the rule of law, so that the law must prevail over the desire of governments to “pick and choose” the fundamental rights they will comply with and the judgements they will find acceptable.

Lord Judge fears that Judge Spielmann is claiming that the body of law developed by the Strasbourg court is legally binding on the UK government. Yet at the same time he agrees that the Supreme Court in the UK should seek to follow the decisions of the Strasbourg court and, quoting Lord Sumption, “treat them as the authoritative expositions of the Convention.” He also affirms that our adherence to the Human Rights Convention and the passage of the Human Rights Act do not represent a surrender of the sovereignty of the UK Parliament.

Lord Judge’s fear of a threat to British sovereignty does not seem well-founded. We do not surrender sovereignty merely by entering into international commitments. The sovereignty of Parliament was carefully protected in the drafting of the Human Rights Act. The Act requires courts to “take into account” decisions of the Strasbourg Court and to read and give effect to legislation in a way which is compatible with the Convention as far as it is possible to do so, but  it confers no power to overrule or displace legislation of the UK Parliament, whose sovereignty remains intact. Judge Spielmann does not claim the contrary, though he should not be surprised to be taken to task over his use of the word “impose”.

Like Judge Spielmann, his predecessor the British judge Sir Nicolas Bratza  encouraged co-operation between the Court and the member states. In 2013 a conference of those states emphasised that this was an essential feature of the Convention by expressly adding references to the importance of “subsidiarity” and the “margin of appreciation” in the Convention’s preamble. The Strasbourg court has ruled against the United Kingdom in barely a handful of cases. Lord Judge does not complain about any of these decisions and they are surely a small price to pay for the influence of British common law principles on the rest of Europe. If Britain, the source of the principles embodied in the Convention, rejects the Court, why should any other of the 47 member states accept it?

Lord Judge gives no indication in his article that he favours repeal of the Human Rights Act or withdrawal from the Convention. He gives no explicit support to the Conservative party’s policy. Did he anticipate that in presenting its case for these drastic measures the Conservatives would cite him in support? I believe Lord Judge overstates the threat to British sovereignty implied in some of the observations of the President of the Court of Human Rights but he categorically and rightly denies the “ability of the European Court to change British laws.” Thus, rather than supporting the Tory case for repealing the Human Rights Act and withdrawing from the Strasbourg court, he completely undermines it.

This article is part of our Great Charter Convention series, exploring the Magna Carta ahead of its 800th anniversary and calling for a constitutional convention.