The UK government’s mellowing toward Strasbourg?

goveThe [uncorrected*] transcript of the evidence from the Secretary of State for Justice, Michael Gove, taken before Parliament’s (in the fact the House of Lords’) EU Justice Sub-Committee (2 February 2016) was published the other day. As others (see Dr Merris Amos) have noted, the answers supplied by Mr Gove would seem to reflect a real mellowing of the UK government’s position with respect to ‘Convention rights’ and the Strasbourg Court, which could be reflected in a proposed UK/British Bill of Rights that is, in fact, remarkably similar to the current Human Rights Act 1998 (HRA).

Indeed, in response to Mr Gove’s evidence the Chairman of the Committee (Baroness Kennedy) suggested that the proposed UK/British Bill of Rights sounded like it would be ‘putting on a gloss rather than making a radical change’ and that ‘all the same rights will be there, save for a few bits of tweaking, and essentially a gloss will be put on things’. Mr Gove did not reject the comment, and seemed to largely agree.

Of course, we still await the government’s proposals for a UK/British Bill of Rights, so we shall have to wait to see if they reflect this new, changed mood and if it really will be the HRA with some airbrushing or a slight ‘makeover’. (As to when we will get the proposals, Mr Gove said, two weeks ago, ‘there will not be too long to wait’).

The aim of this post is to (i) briefly comment on the background, and how a change of heart, if that is what it proves to be, should be viewed; and then (ii) to set out selected extracts from Mr Gove’s evidence , so that readers can draw their own conclusions about the apparent change of mood (for the full transcript, see the link above).

Background, a change of heart (?) and, if so, how to view it

The backcloth to all this, of course, are the hostile statements previously made by Conservative politicians (including some senior figures within the party, and government), reflected in a policy document of October 2014, and threats to withdraw from the ECHR. In essence, the narrative up to around the middle of last year– contrast now – was the need establish a UK/British Bill of Rights to restore common sense to human rights, following their perversion and distortion by the Strasbourg Court. And that if, in spite of the UK’s efforts to bring sanity to the situation, the Court did not learn its lesson, but continued to meddle and get it wrong, the UK would pick up its bat and ball, by withdrawing from the Convention (see the October 2014 document). In the meantime, according to the Conservative manifesto the HRA would be repealed and a new UK/British Bill of Rights instituted, which would, amongst other things, ‘break the formal link’ between the UK courts and Strasbourg, and make the Supreme Court ‘supreme’.

What, then, if it is true that the government’s position is now more placatory and considerably less confrontational, reflecting a change of tack? If so, and depending on the actual detail of the proposed UK/ British Bill of Rights, of course, such a change is to be welcomed, and commended. The temptation to say ‘told you so’ must be avoided. That temptation may exist because the argument can be made that real damage has been done. Most notably there are good reasons to suggest that the anti-Convention/ anti-Strasbourg sentiment that may have infused the government’s previous positions has had a ripple effect beyond the UK’s borders, giving more latitude to countries who may be minded to undermine the Convention, if not human rights generally (Russia is repeatedly mentioned in this connection).

The better position to adopt (if the government has really changed approach), is that the government’s dissatisfaction with the Convention has caused it, first, to let off steam – but that, secondly, it has sensibly reflected, and started to examine the situation carefully, and come to a valuable conclusion. The result (informed, it is assumed, by critics and commentators, as well as internal advisers) is a reappraisal of the domestic human rights framework aimed at fine-tuning adjustments, or, put another way, an evolution of the current domestic arrangements (although, I stress, we wait to see what they actually are) – but not a domestic scheme that delivers the wholesale change, revolution and regression as regards UK-Strasbourg relations, as was feared.

If that it so, then the bigger picture is that the Convention system could derive strength from this, precisely because the example can be shown to other States that a country such as the UK has had its enthusiasm for the Convention strained, yet concluded that the relationship with Strasbourg is, in fact, a positive one to be nurtured and kept alive, and that domestic arrangements should enable and reflect this. This would not be to assume that, from now on, there will be spontaneous love and affection for Strasbourg, and unquestioned acceptance of everything it does – of course not. At the same time, the overriding message to project would be that it came to be appreciated in the UK that the wiser course is to work through relationship problems with Strasbourg, rather than rebut that relationship, separate, and even divorce. That would be a positive message to convey at the very time when the Convention needs the support of States such as the UK, given the broader problems it is facing, including (indeed) from the UK (see here).

Mr Gove before the EU Justice Sub-Committee

Coming now to Mr Gove’s appearance before the Committee, perhaps the most striking feature of it is how the ‘heat’ in UK-Strasbourg relations seems to have dissipated (although, to be fair, it has be far less in evidence in Mr Gove’s previous statements on topic compared to some other Conservative politicians). Indeed, there was hardly a word (if any?) of criticism for the Strasbourg Court from Mr Gove in the session before the Committee.

What follows in necessarily selective, and edited, and the subtitled questions reflect my own input (the reader is encouraged to read the transcript, or watch the video on Parliament TV, to see the whole context). Sometimes I offer comments at the end of each section.

Why change the HRA and replace it with a UK/ British Bill of Rights?

Mr Gove’s reply (edited) started with the background to and reputation of the HRA:

[the Act] was introduced at a fair lick [i.e. very quickly]. It was introduced as a major constitutional reform, albeit after quite an intense debate in civil society, with quite a short period of consultation and with relatively rapid progress through Parliament.

I think most people would agree that the basic rights outlined in the convention are admirable, and all the signatories to the convention interpret them in different ways—sometimes subtly different ways. Britain has in some respects been an exemplar, not only due to the fact that we played a leading role in setting up the convention rights in the first place…. Not only did Britain play a leading role in establishing those convention rights but, through the medium of the Human Rights Act, we have those convention rights observed in a far more direct fashion than is the case in one or two other jurisdictions. But even though Britain played a role in establishing the convention in the first place, and even though Britain is, through its courts and its Parliament, determined to play a leading role in the protection of rights, human rights—it is a source of regret to us—have a bad name in the public square. Human rights have become associated with unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy. More troublingly, human rights are seen as something that are done to British courts and the British people as a result of foreign intervention, rather than something that we originally championed and created and seek to uphold. Therefore, part of the purpose of a British Bill of Rights or a UK Bill of Rights is to affirm the fact that things like a prohibition on torture or a right to due process and an appropriate trial before a properly constituted tribunal before deprivation of liberty or property are fundamental British rights.

What might be changed under a new scheme?

Mr Gove started by referring to section 2(1) HRA, noting previous criticism of the domestic court’s approach to this. In response the Chairman of the Committee (Baroness Kennedy) observed that that judicial approach had undergone an evolution since that criticism. To which Mr Gove responded, and the following exchange ensued:

Mr Michael Gove MP: … To be fair, both our judges and Strasbourg itself have recently accepted that there should be a proper margin of appreciation. If it is not inappropriate, I should say that the role played by my predecessors, Ken Clarke and Dominic Grieve, as part of the Brighton process in getting the court to realise that a margin of appreciation was important, has helped. However, as legal scholars say, what ebbs may flow. We cannot necessarily rely on a future court or future judges to take this approach. If we believe, and if there is a broad consensus among the judiciary and the public, that it is appropriate to revisit Section 2, then it would seem an appropriate safeguard to take. Certainly Lord Irvine, Lord Falconer and Sadiq Khan felt moved to intervene in the debate, because they felt that it was possible to revise the Human Rights Act in this way.

The Chairman: I just want to home in on whether that is really necessary now, and what derogations you would press for. As well as Section 2 and saying that we do not have to follow the European Convention on Human Rights—that is accepted—but that we take advice from it and certainly look to it, in which areas would you expect there to be derogations in any British Bill that we put through Parliament?

Mr Michael Gove MP: Again, I am not a lawyer so I will try to be careful with the terms, but there are two areas that I would point out as areas of concern that require to be addressed. One is when British troops operate abroad. There has been a widespread debate over months now, which has heightened particularly over the past few weeks, about whether the way in which room for troops to operate effectively in a conflict zone has been constrained overmuch by a variety of laws and treaties. One question—it is an open question—is whether reform of the Human Rights Act could clear up some of that concern in order to ensure that our soldiers stand on firm legal ground while of course still being subject to appropriate legal sanctions. That is one area. One thing that has been mooted, although we will have to wait for the consultation paper, is that there might be a derogation when British troops are engaged in conflict in the same way as France derogated from the ECHR to create a stage of emergency in the aftermath of the Bataclan atrocity.

Separate to that are what I might call glosses that could be put on the rights that are capable of being balanced. Some of the rights are absolute. Others are of course balanced by the courts, and different courts in different countries might balance them in different ways.

To take another case in point, I think it is probably accepted that in Britain we place slightly more emphasis on freedom of expression and slightly less emphasis on privacy rights than in continental jurisdictions. We have seen that in some data protection cases, for example. It might be appropriate for us to firm up and make clearer the importance of freedom of expression. That might include everything from better protecting journalists’ sources—there has been an interesting argument about the Miranda case—to helping to ensure that some of the erosions of freedom of speech, about which not just the media but others are worried, can be fought back. Again, we will put forward in the consultation some propositions and ideas about how we might better protect freedom of speech, and of course we will pay very close attention to the responses that come not just from the media but from across the piece.

My comments: the recognition of a change of approach by the Strasbourg Court, in the light of the Brighton reform process is notable.

As to the extra-territorial reach of the Convention and derogation matters, it would be important that any assessment of this has in mind the Strasbourg ruling in Hassan v United Kingdom, 16 Sept 2014 (Appl No. 29750/09) [GC], and how this reconfigures some important aspects of the relevant law (in a way which, I assume, will be looked upon favourably by the UK govermnet).

The reference to ‘slightly more emphasis on’ and ‘glosses’ to aspects of rights, is a marked change to some preceding talk that they need a fundamental rethink, and might merit withdrawal.

If the UK adjusted rights protection domestically, would that not result in more cases going to Strasbourg?

[This is my rephrasing of Baroness Neuberger’s second question]

Mr Michael Gove MP:

There is always that risk, or opportunity, depending on your point of view. The right of individual petitioners has existed for many years now and predates the Bill of Rights. But I think that Strasbourg would be less inclined to look indulgently on any petitioner if it could look at how UK courts had interpreted charter [sic? Convention] rights. If UK courts had interpreted charter [sic? Convention] rights in a way that was consistent with our constitutional traditions, consistent with our jurisprudence and consistent with the plain meaning of the rights, then going to Strasbourg would be an expensive fool’s errand.

Preceding this Mr Gove stated:

… we are not planning to derogate absolutely from any of the rights. At the moment, we envisage that all the rights contained within the convention will be affirmed in any British Bill of Rights, but where rights are subject to potential qualification, we may emphasise the importance of one right over another. …

Comment: a key point here is the recognition (as I see it) of the fact that it is important to allow the domestic courts to have the opportunity to apply (and if necessary, and appropriate, adjust) Convention rights to the national context, in order that, if the case then goes to Strasbourg, it may reach an informed decision of the case from a carefully considered UK perspective. If handled carefully, this would be in keeping with a dialogue, not confrontational approach – one that the Strasbourg Court welcomes, and has been in evidence in earlier cases with respect to the UK and other States. This does not give the UK an overriding say in the meaning of Convention rights (under the ECHR), but gives it an opportunity to influence that meaning, one which Strasbourg has proven very receptive, and sensitive to in the past.

But would any departure from the meaning of a Convention right as interpreted by Strasbourg having a damaging effect on the Convention, and on the UK’s reputation?

[Lord Judd Q 81]

Mr Gove’s initial response was to reiterate that

it is not our intention, … to say that any individual right within the convention no longer applies in the UK. We are going to consult on how some of those rights might be interpreted and weighed against each other, but that is a separate thing.

Beyond this Mr Gove added:

The rights contained in the convention are undoubtedly admirable and set a very high standard, and one would wish to see as many states as possible cleave as closely as possible, consistent with their own traditions, to the values contained within the charter [sic? Convention], but I do not think that it is absolutely necessary for any country to be viewed as a human rights exemplar to be a signatory to the charter [sic? Convention]. To take a country of which I am very fond—a random [sic?] Canada—I do not think that anyone would say that Canada lacked the ability to be both a powerful voice for human rights on the international stage and a model common law jurisdiction, even though it happens not to be a signatory to an explicitly European treaty.

Comment: the comments about non-signatory States are valid. The UK, however, is a signatory to the Convention. The main issue there is about the extent to which an appropriate equilibrium between the UK human rights regime and Strasbourg can be reached (and has already been reached under current arrangements). In that connection, the dialogue model referred to above will remains vitally important, as will a relationship between the UK and Strasbourg which reflects and appropriate distribution of powers: to which end reference may be made back to the earlier comment about ‘both our judges and Strasbourg [having] recently accepted that there should be a proper margin of appreciation’.

Of course, the issue is the extent to which Convention rights might be adjusted under a new model. Here the comments made by Mr Gove suggested that we were only talking about very subtle adjustments, such that this would not impact on the UK’s reputation or embolden figures such as Vladimir Putin (see responses to Baroness Hughes, the exchange with Lord Richard and with Lord Cromwell). The Chairman therefore suggested that what would occur would be ‘putting on a gloss rather than making a radical change’ and that ‘all the same rights will be there, save for a few bits of tweaking, and essentially a gloss will be put on things’ – to which Mr Gove seemed to largely agree, and did not oppose.

Please note that this is the uncorrected version of the transcript. See Note 2 on the first page of the Transcript, which reads: “Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record”.

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