Parliamentary Sovereignty and the European Convention on Human Rights

One of the issues which arises frequently when there is a dispute between the Government and the European Court of Human Rights is the effect of Parliamentary Sovereignty. This is retained in the domestic sphere, since the Human Rights Act 1998 does not grant the UK Courts the power to strike down primary legislation made by the Westminster Parliament. However, the question then arises as to whether the UK Government is obliged, under international law, to address judgments of the European Court of Human Rights. This has become a particular issue in relation to the case of prisoner voting rights; and following an announcement by the Conservative party that it wishes to make “fundamental changes to the way human rights laws work in the United Kingdom”.

Legal background

Article 46.1 of the European Convention on Human Rights provides:

“ARTICLE 46

Binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”

In the case of Chester and McGeoch v Secretary of State for Justice and another [2013] UKSC 63, Lord Sumption gave what appeared to be a definitive summary of the UK’s obligation under Article 46.1 of the Convention when he said that:

“It is an international obligation of the United Kingdom under article 46.1 of the Convention to abide by the decisions of the European Court of Human Rights in any case to which it is a party. This obligation is in terms absolute.”

The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill<span> recently considered the UK’s obligations under Article 46, and noted that the witnesses they heard, including a former Attorney General, Lord Goldsmith QC and former Conservative Lord Chancellor, Lord Mackay of Clashfern, were of the view that it would be a violation of the rule of law for the UK to fail to comply with its obligations under international law.

The Committee noted that Lord Sumption had re-stated a “fundamental principle underlying UK adherence to the ECHR.” It agreed with Lord Mackay that “the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights”, concluding that:

“Parliament remains sovereign, but that sovereignty resides in Parliament’s power to withdraw from the Convention system; while we are part of that system we incur obligations that cannot be the subject of cherry picking. A refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such an action as setting a precedent that they may wish to follow.”

However, views on this issue are not completely unanimous. In a speech delivered in December 2013, the former Lord Chief Justice, Lord Judge, questioned the extent of the UK’s obligation to comply under Article 46, arguing:

 “In our constitutional arrangements Parliament is sovereign. It can overrule, through the legislative process, any decision of our Supreme Court. In relation to the Strasbourg Court, and the Convention, is this principle negatived by our accession to the treaty obligation contained in Article 46? Do we, can we, accept the obligation … that when a UK case arises, our Parliament must take ‘general measures in its domestic legal order to put an end’ to the violations found by the European Court? Can that possibly be required if Parliament disagrees? For me the answer is, of course not.”

 The Conservative Party has indicated that were it to win the next General Election, it would introduce reforms which would, amongst other things, ensure that rulings of the European Court of Human Rights are no longer binding over the UK Supreme Court (although it is worth noting that at present section 2 of the Human Rights Act only provides that the UK courts should “take into account” any ruling of the European Court of Human Rights); and, that the European Court of Human Rights would “no longer [be] able to order a change in UK law” and would become “an advisory body only.” Many lawyers and representatives of human rights NGOs, such as Liberty and JUSTICE, have been very critical of these proposed reforms.

The UK at the European Court of Human Rights

Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority. However, there was little support for this view and Protocol 11 making the right of individual petition compulsory entered into force on 1 November 1998.

Under the UK chairmanship of the Council of Europe in 2012 the Brighton Declaration was adopted. This was a package of reforms to tackle the excessive backlog of cases pending before the Court, and it also emphasised that the main responsibility for guaranteeing human rights rests with national governments, parliaments and courts. Protocols 15 and 16, which seek to implement Brighton reforms, were laid before Parliament on 28 October 2014. Importantly for the sovereignty issue, Protocol 15 inserts references to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble.

Protocol 16 creates an optional system by which the highest national courts can seek advisory opinions from the European Court on the interpretation of the Convention. The UK Government supports the former but does not currently intend to sign or ratify the latter. Instead, it proposes to observe “how the system operates in practice, having regard particularly to the effect on the workload of the Court, and to how the Court approaches the giving of opinions” (Written Ministerial Statement, 28 October 2014).

European Court of Human Rights judgments by Member state concerned, 1959-2013

ECHR judgements by Member state

Source: Overview 1959-2013 ECHR, February 2014.

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania). As the chart above illustrates, from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

Council of Europe figures also show that of the large number of applications to the European Court of Human Rights, only a tiny proportion result in a judgment against the UK. The charts below show the total number of UK applications, the number of applications declared admissible by the Court, the number declared inadmissible and the number of judgments for the years 2011 to 2013. UK cases at the European Court of Human Rights is also the subject of Standard Note 5611, updated 4 November 2014.

UK ECHR applications processed 2011-2013

Source: ECHR Analysis of Statistics 2013

Applications to the European Court are allocated to a ‘judicial formation’, either as Single-Judge cases (likely to be declared inadmissible) or as cases to be considered by more than one Judge in Committee or the Chamber. Many of these are subsequently declared inadmissible or struck out. In the three years to 2013, 4,708 UK applications were declared inadmissible or struck out. Where an application is not considered inadmissible it is “communicated to the Government” and subsequently a judgment is delivered. The number of judgments is small relative to the number of applications. In the period 2010 to 2013, there were over 4,000 UK applications and 84 judgments. In 2013 the Court delivered 13 judgments on UK cases (concerning 19 applications), 8 of which found at least one violation of the European Convention.

Conclusion

So how much of a sovereignty problem do the Convention and Court pose for the UK? And what might the consequences be for the UK’s continued CoE and EU membership if it decides to withdraw from the Convention? The first question is likely to remain a matter of dispute. Clearly the number of cases in which the European Court of Human Rights finds against the UK Government is very small indeed. And yet the question of who should have the final word on human rights related issues remains extremely contentious.

With regard to the second question, both the Council of Europe and the EU require that Member States respect human rights. In practice this has meant ratifying or acceding to the European Convention. It has long been the CoE Parliamentary Assembly’s practice when formulating its opinions on membership applications to make accession to the European Convention a condition of CoE membership.

Regarding EU membership, initially candidate states had to have a “firm intention” or a “declared willingness” to ratify the Convention. Under the Copenhagen Criteria for EU enlargement agreed in 1993, adherence to human rights principles is a condition of membership for aspiring members. However, it is not possible to say conclusively that continued membership of the EU requires the UK to remain a member of the Council of Europe or a signatory to the Convention.

Yet it is worth noting that under the terms of the Treaty of Lisbon the EU is to accede to the European Convention and this is currently being negotiated. The legal implications of EU accession are manifold and are not the subject of this blog (and this is not to mention the EU’s own Charter of Fundamental Rights which includes all the Convention rights and with which EU Members States must act compatibly when acting in the scope of EU laws). But it would seem that a UK withdrawal from the Convention might leave UK courts in the position of not applying the Convention as part of UK law (as at present they are required to do under the Human Rights Act), but having nevertheless to apply it when implementing EU law.

Alexander Horne and Vaughne Miller