THE NATURE OF THE EUROPEAN COURT OF HUMAN RIGHTS
The public dislike (or distaste, if you will) of the European Court of Human Rights is misconceived. It is not at heart anything to do exclusively with western liberal democracies, although its cradle in 1950 was the Council of Europe (and, of course, the environs of its main institutions, the Commission and Court, are Strasbourg).
The Council of Europe’s outstanding achievement was initiated in 1949 at Strasbourg University under the guidance of the European Parliament’s deputy Secretary-General, a distinguished English naval hero, Dunstan Curtis, a solicitor and civil servant in post-war Europe.[44] Those procedural beginnings and the cultural (European) heritage of the institution, as largely promulgated domestically in the schedule to the Human Rights Act, are international in character - neither English nor French, domestically-speaking, or of the British Foreign Office which played a pivotal role in the development of the origin of the various Articles. Above all, it has to be remembered that the Court is only supervisory; it is supranational in that sense, and it is there to observe that the domestic courts - that is, the courts of the Member States - are primarily under a duty to comply with the Convention. It neither dictates nor overrides the national courts. It endorses no religion, race or creed; its purpose is to envelop mankind. Article 19 states that it is there ‘to ensure the observance of the engagements undertaken’ by the parties to the Convention and its Protocols. To adapt the soubriquet used by Judge Learned Hand, they are Platonic guardians of our universal humanity. The UK Supreme Court has shown that the 1998 Act provides for and gives expression to a dialogue between the UK Government and Strasbourg. The Articles of the Convention (let alone the various Protocols, some of which the UK has undertaken to implement) are written in a language (English) which can be readily understood by the British public.Since 2000 the Court at Strasbourg has supervised the operation of these rights. A supranational court - it has 47 justices, one from
each member State - it seeks to rationalise the various rights between different legal systems. It is the guardian (not the determiner, which is the role of the Convention) of those rights. It has no other constituency of the 800 million people of Western Europe. It reflects the cultural heritage of the region of 47 countries, not just the British Isles or the original 12 states that initially signed the Convention. The Court is not international but supranational, in that it supervises all courts of last resort, not just Britain’s. As Sir Nicolas Bratza, Britain’s representative in the Court until October 2012, stated in 2011:
The Strasbourg Court does in my perception pay close regard to the particular requirements of the society in question when examining complaints that a law or practice in that society violates the Convention.
Jonathan Sumption QC (now Lord Sumption, a Justice of the UK Supreme Court) makes the point - even if his solution favours a detachment from government, the contemporary equivalent of ‘judicial restraint’, or its opposite, ‘judicial activism’ (but either way, who wants the judiciary to be ‘inactive’?) - that:
Even where the case for recognising a Europe-wide human right is strong, the varying political and constitutional arrangements of different countries will mean that the same rights and the same derogations are not equally necessary or desirable in all places, and will not always require the same measures to make them effective.
It is important to remember that each member State has freely decided to ratify the ECHR and to become bound by each of its standards. Further, both the ECHR and the Committee of Ministers (in fulfilling its role of supervising the execution of the ECHR’s judgments) have consistently refrained from imposing particular measures on member States that are required to be implemented in order to comply with a judgment of the Court.
A much more sophisticated approach to the problem facing the judiciary in England has usefully come from a judgment in the Supreme Court, in the 2013 case of Osborne v The Parole Board,[45] where Lord Reed described the situation:55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez- Reisse v Switzerland (1986) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.
Lord Reed explained this analysis to the treatment of prisoners fairly in granting parole licences:
59. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the board's review of the prisoner's case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness.[46]