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Phillips, Lord --- "The Impact of Human Rights on Domestic Courts" [2014] OtaLawRw 1; (2014) 13 Otago LR 215

Last Updated: 20 May 2016

^{FW Guest Memorial Lecture: 6 March 2013}

The Impact of Human Rights on Domestic Courts

Lord Phillips of Worth Matravers KG^*

I Introduction

I am one of a dwindling number who can remember the end of the Second World War. My mother ’s parents were Jewish which meant that so far as the Germans were concerned so was she and so was I, and my sister. When invasion of England seemed a real possibility my father sent my mother, my sister and me across the Atlantic to stay with his uncle and aunt on a farm in Alberta. We returned when the danger was over. As a reaction to the horrors that had been the cause of our evacuation the United Nations Charter was signed on 26 June 1945. Three years later the inspirational leadership of Eleanor Roosevelt led to the adoption by

48 Members of the General Assembly of the Universal Declaration of Human Rights. The Universal Declaration was, in its turn, the model for the European Convention for the Protection of Human Rights and Fundamental Freedom. The United Kingdom played a leading role in the drafting of the Convention and was one of the first signatories of it in 1950.

From that moment, however, the attitude of this country to the Convention was ambivalent, and that is as true today as it ever was. There is currently on the part of some a strong hostility to the European Convention on Human Rights and, more particularly, to the European Court of Human Rights at Strasbourg.

^{Let me quote from a typical article in the Daily Mail, under the heading}

^{“We must stand up to the Euro Judges”:1}

The decision by an immigration judge to grant bail to Abu Qatada, one of the world’s most dangerous fanatics, is a truly perverse and disturbing state of affairs. But although Mr Justice Mitting caused outrage by giving Osama Bin Laden’s ambassador in Europe bail terms which allow him to walk his youngest child to school, he is not the person to blame for this shambles. He is merely a puppet whose strings have been tugged

^* Called to the Bar in 1962, Lord Phillips of Worth Matravers was appointed a Judge of the Queen’s Bench Division in 1987 and a Lord Justice of Appeal in 1995. Elevated to the House of Lords in 1999, he was appointed Master of the Rolls in 2000, Lord Chief Justice in 2005, and Senior Law Lord in

2008. He was the founding President of the UK Supreme Court from 2009 until 2012. A Knight Companion of the Order of the Garter, Lord Phillips is a Visiting Professor at Oxford University and at King’s College London, the President of the Qatar International Court and Dispute Resolution Centre, and a non-permanent Judge on the Court of Final Appeal of Hong Kong.

^{1 James Slack “We must stand up to Euro judges” Daily Mail (online ed, 19}

^{July 2012).}

remotely by the unelected, unaccountable judges at the European Court of Human Rights.

Later the article complains that:

Strasbourg has extended the scope of the Convention beyond all reasonable limits.

Articles such as this led Sir Nicolas Bratza, after his election to the Presidency of the European Court, to complain in a public seminar in Edinburgh in March 2011:²

The vitriolic – and I am afraid to say xenophobic – fury directed against the judges of my Court is unprecedented in my experience, as someone who has been involved with the Convention system for over 40 years... The scale and the tone of the current hostility directed towards the Court, and the Convention system as a whole, by the press, by members of the Westminster Parliament and by senior members of the Government has created understandable dismay and resentment among the judges in Strasbourg.

My sympathies are with Nicolas Bratza.

As he went on to point out, the Strasbourg Court pays very careful attention to the decisions of the English courts on human rights issues, and only a very small proportion of applications to Strasbourg against the United Kingdom are successful. At the same time I believe that the Strasbourg Court has enlarged the reach of the Human Rights Convention in a way that has gone beyond what the parties intended when they subscribed to it.

There is, at present in England, a lively debate as to the extent to which the Supreme Court should follow decisions of the Strasbourg Court. In this lecture I propose to look at the unique way in which Parliament has given domestic effect to the Convention under the Human Rights Act 1998 and at the way in which the Supreme Court has interpreted the relevant provisions of that Act. I shall draw attention to those areas where I believe that the Strasbourg Court has extended the reach of the Act beyond the agreement of the signatories to the Convention. I shall look at some areas where the Strasbourg Court has differed from the considered views of the House of Lords and the Supreme Court.

Finally, I shall look at the disenchantment of Westminster with some decisions of the Strasbourg Court and the move to do our own thing by enacting a British Bill of Rights.

II The Convention

Under the first article of the European Convention on Human Rights, the parties agreed to “secure to everyone within their jurisdiction the rights and freedoms defined in the Convention”. So what the parties agreed to at an international level was the manner in which they would

² Sir Nicolas Bratza “The Relationship between the UK Courts and

^{Strasbourg” (2011) 5 EHRLR 505.}

treat people within their jurisdiction. I shall in due course focus on the question of what was meant by “within their jurisdiction”.

The “rights and freedoms” that the parties agreed to secure for those within their jurisdictions were stated in very general terms. They included: the right to life (article 2), freedom from torture and degrading treatment or punishment (article 3), the right to liberty (article 5), the right to a fair trial (article 6), the right to respect for private and family life (article 8) and freedom of expression (article 10). Some of these rights, such as the right to life and freedom from torture, are stated in absolute terms. Others are qualified.

Thus article 8, which provides that everyone has the right to respect for his private and family life, his home and his correspondence, goes on to provide:

there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Because the rights are expressed in general terms, it is necessary to define with more precision what it is that particular rights encompass. In defining rights it has become generally accepted that the Convention is what has been described as “a living instrument”. This means that the definition of the scope of individual rights changes over time – it is not restricted to what those rights would have been thought to encompass when the Convention was agreed in the 1950s.

When giving evidence to a Joint Parliamentary Committee on 13 March

^{2012 Sir Nicolas Bratza illustrated this by reference to the words “private}

^{life”, “home”, “correspondence” and “family life” in article 8. He said:3}

I think it is very difficult to confine the interpretation of those words to the meanings that they had in the 1950s. Doubtless the founders did not have in mind issues such as transsexuality, retention of DNA samples, severe noise pollution, same sex marriages, in vitro fertilisation, electronic means of communication and the like.

All of these are matters that the Strasbourg Court has held to fall within the remit of article 8.

Submission to the jurisdiction of the Strasbourg Court was optional for those who subscribed to the Convention. That jurisdiction confers on individual citizens the right to petition the Court to seek an order for compensation for the infringement of their Convention rights by their own countries. The United Kingdom was not prepared to countenance this until 1966, when a Labour Government signed up to it. After this,

3. Sir Nicolas Bratza “Human Rights Judgments” in Transcript of oral evidence provided to Joint Parliamentary Committee on Human Rights,

^{13 March 2012.}

individuals could apply to Strasbourg for awards of compensation for the infringement of their Convention rights by the United Kingdom. However they had no right to make such a claim before a domestic court in the United Kingdom.

This was because the British Government had refrained from incorporating Convention rights into our domestic law. From 1968 onwards, however, there was steadily growing pressure to do this. In 1994 a Bill was introduced in the House of Lords by Lord Lester, a member of the minority Liberal Democrat party, which would have empowered our courts to disapply inconsistent existing and future legislation. The Bill was given a rough ride by Conservative Ministers and it foundered. However, in May 1997 a Labour Government was voted into office on a manifesto which included a commitment to incorporate the Convention into our domestic law.

III The Human Rights Act 1998

The model that was chosen and which became our Human Rights Act

^{1998 has the following significant features. Public authorities are placed}

^{under a duty to comply with the Convention. If they do not, they are}

^{liable to pay compensation. They have a defence, however, if an Act}

^{of Parliament requires them, or authorises them, to act in a way that}

^{infringes the Convention. Parliament remains supreme.}

A Minister promoting a Bill has, however, to state whether or not he believes that the Bill is compatible with the Convention; and the Court has the power, under section 4 of the Act, to make a declaration that an Act is incompatible with the Convention. Where a declaration of incompatibility is made, Parliament has almost invariably amended the legislation to make it compliant with the Convention.

IV The effect of the Human Rights Act on statutory interpretation

Section 3 of the Act provides:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights.

The first case in which the House of Lords had to consider this provision was R v A (No 2).⁴ That case concerned the so called “rape shield” imposed by section 41 of the Youth and Criminal Evidence Act 1999. This placed a general prohibition on adducing evidence, or cross-examining a complainant, in a rape case about her previous sexual experience.

The majority of the Law Lords held that section 3 permitted and required them to read this provision as subject to the implied proviso that the prohibition did not apply where such evidence or cross-examination was required to ensure a fair trial. This robbed the section of most of its effect. It was contrary to the intention of Parliament, as derived from

⁴ [2001] UKHL 25, [2002] 1 AC 45.

the clear wording of the statute, which was to shield a complainant from such evidence and cross-examination in all circumstances.

In subsequent decisions the House of Lords made it clear that section 3 had this startling effect. Ghaidan v Godin-Mendoza⁵ was concerned with the rights of a person living with a protected tenant “as his or her wife or husband” after the protected tenant died. The issue was whether the words “as his or her wife or husband” embraced a couple who were living together in a homosexual relationship. In 1994, before the Human Rights Act had been enacted, the House of Lords had considered that very question and answered it “no”.

But in Ghaidan the surviving partner argued that this interpretation would be contrary to article 14 of the Convention, which prohibited discrimination, and that the House was bound by section 3 to alter its interpretation of the phrase. The House accepted this. Let me read you some passages of the leading speech of Lord Nicholls:

All legislation must be read and given effect to in a way which is compatible with the Convention rights ‘so far as it is possible to do so’. This is the intention of Parliament, expressed in section 3 and the courts must give effect to this intention....It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may none the less require the legislation to be given a different meaning...From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear.

In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of Parliament which enacted the legislation.

The Lords in Ghaidan made it clear that there were limits to this startling principle of interpretation. The particular provision could not be interpreted in a way that was contrary to the main thrust or purpose of the legislation as a whole. Lord Rodger coined the memorable phrase that the provision had to be read in a way that went “with the grain” of the legislation.

I was not at this time sitting as a Law Lord. I personally had doubts as to the constitutionality of an approach to statutory interpretation that deliberately departed from the clear intention of the Parliament that enacted the legislation. I expected Lord Bingham, who had not sat on the appeal in Ghaidan, to share these doubts.

He, in R (Anderson) v Home Secretary,⁶ had described as “judicial

⁵ [2004] UKHL 30, [2004] 2 AC 557.

^{6 [2002] UKHL 46, [2003] 1 AC 837.}

vandalism” an attempt to give a statutory provision “an effect quite different from that which Parliament intended” which would “go well beyond any interpretative process sanctioned by section 3”. However, in Attorney General’s Reference (No 4 of 2002),⁷ Lord Bingham expressly approved the approach in Ghaidan. He held:⁸

the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament.

I sat with the Law Lords on that case and was one of the majority that agreed with Lord Bingham. Perhaps rather pusillanimously I was persuaded to suppress my reservations about the constitutionality of this. In doing so I implicitly recognised that we were giving the Human Rights Act paramount effect over the intention of Parliament in subsequent legislation. This accorded with a much quoted, and controversial, proposition of Laws LJ in Thoburn v Sunderland City Council⁹ that there is a hierarchy of Acts of Parliament, “ordinary” statutes and “constitutional” statutes and that the Human Rights Act is a constitutional statute.

The most recent example of this approach on the part of the Supreme Court was a case called R v Waya,¹⁰ which caused the Court more trouble than any other under my presidency. It was about a draconian obligation placed on the court to confiscate the property of convicted criminals under the Proceeds of Crime Act. We restricted this obligation by implying a proviso “except in so far as such an order would be disproportionate”, thereby making confiscation subject to judicial control in a manner that did not reflect the intention of Parliament as derived from the wording of the Act. Parliament had not wanted to give the judges any discretion.

How, you may ask, have the House of Lords and the Supreme Court got away with this creative approach to statutory interpretation without resistance or protest? The answer is, I think, that in the individual case it is an approach that leaves both sides relatively happy. The alternative is a declaration of incompatibility, but the claimant does not usually want this, because it will deprive him of any remedy. Ministers do not like declarations of incompatibility either.

Provided that the main thrust of their legislation is not impaired they usually prefer the Court to revise it to make it Convention-compliant rather than to declare it incompatible with the Convention.

V Strasbourg extends its jurisdiction

When considering any area of law there is a tendency on the part of judges to expand its ambit. Lawyers acting for claimants will always be urging them to do so and hard cases very often provide the final impetus for incremental expansion of the law. The judges of the Strasbourg Court

⁷ [2004] UKHL 43, [2005] 1 AC 264.

^{8 At [28].}

^{9 [2002] EWHC 195, [2003] QB 151.}

^{10 [2012] UKSC 51, [2013] 1 AC 294.}

have not been immune from this tendency. They have been abetted in it by the principle that the Convention is a living instrument, so that they have extended the ambit of the Convention rights from those that the founding subscribers to the Convention would have had in contemplation. Thus cases on freedom of religion under article 9 are no longer about freedom to practice one’s religion but about the right to wear religious clothing or symbols at work or school. The nature of individual human rights is, however, very different from the nature of the “jurisdiction” within which the subscribers to the Convention agreed that those rights would be observed.

Initially the Strasbourg Court accepted that the Convention was essentially about how the signatories would treat those within their own territorial jurisdictions. That changed in two respects. The first at least paid lip service to the concept of territorial jurisdiction.

In a series of decisions the Strasbourg Court has held that the Convention can be violated if a State expels or extradites a person from within its territory to a country where his or her human rights will be, or are likely to be, violated. The relevant breach of the Convention is identified as taking place within the territory from which the individual is expelled. These decisions in effect require a country to grant a restricted form of asylum to individuals who have no right to remain and whose presence may be contrary to the national interest or even pose a threat to national security. While these decisions have a humanitarian justification they cannot have been within the intention of the original parties to the Convention, who at almost the same time entered into a Refugee Convention which dealt expressly with asylum in terms that produce very different results to those produced by the decisions of the Strasbourg Court.

The first such decision, in 1989, involved a Mr Soering.¹¹ There was cogent evidence in the form of his own admissions that he had committed two capital murders in Virginia in the United States. The United Kingdom proposed to extradite him to the United States to stand trial for them.

He applied to the Strasbourg Court, contending that if he was extradited he would be placed on death row, and this meant that his extradition would subject him to inhuman treatment contrary to article 3. The Strasbourg Court upheld this claim, and held that he could not be extradited.

The next case in this sequence, Chahal v United Kingdom,¹² caused much greater concern to the United Kingdom Government. Mr Chahal was a Sikh separatist leader who had unsuccessfully sought asylum in the United Kingdom. The Secretary of State had concluded that his presence in the United Kingdom posed a threat to national security and proposed to deport him to India. He applied to Strasbourg arguing that

¹¹ Soering v UK [1989] ECHR 14; (1989) 11 EHRR 439.

^{12 [1996] ECHR 54; (1997) 23 EHRR 413.}

his deportation would infringe article 3 because he would be exposed to the risk of torture or inhuman treatment if sent home.

Such a claim, if made good, would normally have entitled him to the grant of asylum under the Refugee Convention, but there is an exception under that Convention that provides that there is no obligation to grant asylum to a refugee if there are reasonable grounds for regarding him as a danger to the security of the country wishing to deport him. Despite this, his application to Strasbourg succeeded. The Court held that article

3 is infringed if a State deports or extradites a person to a third country where there is a real risk that he will suffer torture or other ill-treatment contrary to article 3. Deportation will violate the Convention, even if he is a menace to the security of the State that wants to deport him. Nor was the United Kingdom entitled to hold this unwelcome visitor in detention, without charging him with a criminal offence. Torture and similar treatment is so abhorrent that one could readily understand this decision, but if it was correct in principle, it was hard to see why it should not apply to extradition or deportation of a person who would be at real risk of violation of other, less fundamental, human rights when returned home, albeit that the risk of such treatment would not entitle him to refugee status. Indeed in a number of cases the Strasbourg Court said that it would not exclude just such a possibility.

However, six years or so elapsed during which there was no instance of the Strasbourg Court actually applying the same approach to other human rights. This was the position when the case of Ullah¹³ came before me when I was presiding as Master of the Rolls in the Court of Appeal. There were, in fact, two appeals raising the same point which were heard together.

The appellants were failed asylum seekers who challenged the right of the United Kingdom to deport them to their own countries on the ground that this would infringe their right of freedom of religion under article 9 of the Convention because they would not be permitted to practice their religions on return. We rejected their appeals. In giving the judgment of the court I expressed the view that “the Convention was not designed to impact on the rights of states to refuse entry to aliens or to remove them”. The Convention was designed to cover the treatment of those living within the territorial jurisdiction of the member states. I acknowledged that Strasbourg had made an exception where a risk of torture was involved and had recognised that a similar approach might be adopted in relation to other human rights.

But I observed that Strasbourg had never in fact adopted such an approach, other than in relation to article 3. I then said:

Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or to remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage article 3, the English Court is not required to recognize

¹³ R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770.

that any article of the Convention is, or may be engaged.

In so holding I had in mind section 2 of the Human Rights Act, which requires a court, when dealing with a human rights issue, to “take account of” decisions of the Strasbourg Court. It did not seem to me that this required us to follow dicta of the Court that had never been the foundation of an actual decision.

The appellants appealed to the House of Lords and, although their appeal failed, Lord Bingham held that our approach to the Strasbourg jurisprudence was wrong.

Because Strasbourg had recognised that deportation could engage Convention rights other than article 3, the English court was obliged to adopt the same approach. He made the following statement of principle:¹⁴

[T]he House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg Court... This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law... It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time; no more, but certainly no less.

This statement of principle has recently come under attack, but that is a topic that justifies a lecture of its own. The fact is that Strasbourg has always recognised the sensitivity of the right of a State to control immigration. Although it has recognised that deportation to a State where human rights will not be respected is, in theory, capable of infringing the Convention, it has done so in very guarded terms, almost invariably by way of explanation of why an application has failed. It has laid down a principle that where human rights other than article 3 rights are invoked, deportation will only infringe the Convention if the deportee faces a real risk of a flagrant violation of the rights in question in the country to which he is to be deported. In a case where the article 6 right to a fair trial was involved, Sir Nicolas Bratza and two of his colleagues explained that:¹⁵

What the word ‘flagrant’ is intended to convey is a breach of the principle of a fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction, of the very essence of the right.

¹⁴ R v Special Adjudicator ex parte Ullah [2004] UKHL 26, [2004] 2 AC 323 at

^[20].

^{15 Mamatkulov and Askarov v Turkey [2005] ECHR 64; (2005) 41 EHRR 25, Joint Partly Dissenting}

^{Opinion of Judges Sir Bratza, Bonello and Hedigan.}

For some years after Ullah Strasbourg did not allow any challenges to deportation on the ground that, if deported, the applicant would face a violation of Convention rights other than article 3 rights. In these circumstances the House of Lords broke new ground in 2009 when it allowed an appeal making such a challenge on the ground that, if deported, the appellants’ right to respect for family life under article 8 would be violated. In EM (Lebanon) v Home Secretary,¹⁶ a mother and her young son had failed in a claim for asylum in the United Kingdom and faced being returned home to Lebanon. There, under Sharia law, when the son reached the age of seven he would be removed from the custody of his mother and placed in the custody of his father, from whom he and his mother were estranged. The House of Lords held that these facts satisfied the stringent test of a flagrant breach that destroyed the very essence of the right to respect for family life and allowed the mother ’s appeal.

Recently, for the first time, Strasbourg has held that deportation would violate article 6 of the Convention. The case is that of Abu Qatada v United Kingdom.¹⁷ Abu Qatada is a Jordanian citizen and faces trial in Jordan on terrorist charges. The United Kingdom Government is anxious to deport him to Jordan because they believe that he poses a threat to national security in this country. He resisted deportation on two grounds. The first was that there was a real risk that he would be tortured if returned to Jordan. To meet that contention the United Kingdom obtained specific assurances from Jordan that he would not be tortured.

The second ground was that there was a real risk of a flagrant breach of his right to a fair trial if returned to Jordan, because of the likelihood that evidence obtained by torture would be used against him. I presided over this case in the House of Lords and we rejected both contentions.¹⁸

Abu Qatada then applied to Strasbourg. Strasbourg held that we had been entitled to rely upon the assurances obtained from Jordan by the UK Government in rejecting his claim that there was a real risk that he would be tortured if returned. They held, however, that he was right to contend that the likelihood that evidence obtained by torture would be admitted meant that he faced a real risk that there would be a flagrant violation of his right to a fair trial and that this was a bar to his deportation.

This decision of the Strasbourg Court, and the earlier decisions in relation to article 3, extend the ambit of the Convention so as to cover events outside the jurisdiction of the signatories to it. No such element of extraterritoriality is involved in the far more common situation where it is held that deportation will infringe article 8 of the Convention because of the effect that it will have on the family unit within the territory of the state in question. It will probably not surprise you that the English media are particularly vociferous in attacking the Convention for preventing the

¹⁶ [2008] UKHL 64, [2009] 1 AC 1198.

^{17 [2012] ECHR 56.}

^{18 RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10,}

^{[2009] UKHL 10; [2010] 2 AC 110.}

deportation of alien criminals who have established family links within the United Kingdom. And not just the media; in February 2013 the Home Secretary, Theresa May, attacked the judiciary for its interpretation of article 8. She commented:¹⁹

...some of our judges appear to have got it into their heads that article 8 of the ...Convention, the ‘right to family life’, is an absolute, unqualified right. This means that if a foreign criminal can show that he has a family in this country, they take the view that he has a right to remain here, regardless of the gravity of the offence. That interpretation is wrong.

This speech was also reported by the Mail Online under the heading “Theresa May vows to crush judges’ revolt by rushing through tough new laws”.²⁰ Some expressed the view that a preferable course would be to appeal against decisions that she considered were wrong in law.

I now turn to the other respect in which, this time quite unquestionably, the Strasbourg Court has extended the scope of the “jurisdiction” of a State within which it is bound under article 1 of the Convention to respect Convention rights. Here, as so often, the relevant decision arises out of applications against the United Kingdom. The case is Al Skeini v United Kingdom.²¹ Between May 2003 and March 2004, British forces were responsible for maintaining law and order in Basra, pending the transfer of power to the interim Iraqi government. The applicants were relatives of five Iraqis shot by British forces during this period.

They contended that the United Kingdom had an obligation to hold independent investigations into the five deaths by reason of article 2 of the Convention. The issue was whether the deaths had occurred “within the jurisdiction” of the United Kingdom, applying the meaning that “jurisdiction” bears in article 1 of the Convention.

A similar issue had been considered by the Grand Chamber in Bankovic v Belgium and others.²² These claims were brought by relatives of victims killed by a NATO bombing raid on a TV centre in Belgrade during the conflict in Kosovo. The Grand Chamber held that this event did not take place “within the jurisdiction” of the states involved. The principles of interpretation in the Vienna Convention of 1969 were applied. The principle that the Convention is a living instrument was held not to be applicable. “Jurisdiction” was held to be essentially a territorial concept, subject to limited exceptions recognised by international law, such as ships and consular premises. Thus a State had “jurisdiction” over its domestic territory.

¹⁹ Theresa May “It’s MY job to deport foreigners who commit serious crime

^{– and I’ll fight any judge who stands in my way, says Home Secretary”}

^{Daily Mail (online ed, 17 February 2013).}

^{20 Simon Walters and Glenn Owen “Judges ‘sabotaged’ MPs’ bid to deport}

^{rapists and thugs... but Theresa May vows to crush judges’ revolt by}

^{rushing through tough new laws” Daily Mail (online ed, 17 February}

^2013).

^{21 (2011) 53 EHRR 18.}

^{22 (2007) 44 EHRR SE5.}

It might, however, acquire “jurisdiction” over foreign territory if it assumed control over that territory to the extent that it exercised all or some of the public powers normally exercised by the government of that territory, at least where the territory was one that would normally be covered by the Convention (eg Northern Cyprus under Turkish occupation).

In Al Skeini the Grand Chamber abandoned the territorial approach to “jurisdiction”. It advanced a different principle, sometimes called the “state agent” principle. It held:²³

It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual.

On this basis the deaths were held to have occurred within the jurisdiction of the United Kingdom for the purposes of the Convention. I cannot resist reading a passage from the concurring opinion of Judge Bonello:²⁴

Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, so far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both a mission and a clarion call. In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.

That kind of abuse is not calculated to endear the Strasbourg Court to the British public. There have, however, been more substantial grounds for public or governmental disaffection with decisions of the Strasbourg Court than judicial abuse.

VI Disaffection with the Convention

The Government has been particularly concerned with problems that the Convention, as interpreted by the Strasbourg Court, has placed in the way of dealing with the threat of terrorism.

There is a considerable number of aliens in the United Kingdom who have no right to be there and whom the Government believes, but cannot adduce evidence to prove, pose a terrorist threat. They cannot be deported because of the ill-treatment that they are likely to be subjected to if sent home. The Government would like to detain them to ensure that they are not involved in terrorist activity, but this would infringe their human rights. The Government has had to ascertain, by fighting a series of expensive, state funded, challenges in the courts, just how far it can go in imposing restrictive measures on these people.

²³ At [137].

^{24 At [18] of Judge Bonello’s Concurring Judgment.}

Attempts to introduce a system of closed material, under which sensitive evidence that is not shown to the terrorist suspect can be put before the court, have been partially frustrated by the insistence of the Strasbourg Court that a fair trial requires that a party be given at least the gist of the case against him.

There has been a series of decisions that have ended up in Strasbourg in relation to the administration of subsidised housing by public authorities.

So far as the English courts were initially concerned, the civil rights of these authorities under landlord and tenant legislation could not be defeated by the invocation of the article 8 right to respect for one’s home. Strasbourg has, however, driven the courts to accept that there is no such inflexible principle, so that the judge cannot close his eyes to the Convention when making a possession order.

Strangely it is not matters such as these that have particularly inflamed Parliament and the public, but the decision of the Strasbourg Court in a case called Hirst v United Kingdom (No 2).²⁵ Article 3 of the First Protocol to the Convention provides that the Contracting Parties undertake to hold free elections under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature. The Grand Chamber in Hirst held that a blanket ban on any convicted prisoner voting infringes this provision. This is one of the rare cases where Parliament has not been prepared to pass a suitable enactment to bring our law into line with what Strasbourg has ruled are our international obligations.

David Cameron said that the idea of giving prisoners the right to vote made him feel sick. By signing up to the Convention this country undertook to abide by the decisions of the Strasbourg Court. Yet the Prime Minister does not appear to recognise the desirability of this country abiding by its obligations under international law. There is a bill before Parliament that offers three choices. Two of them involve giving the vote to a limited category of prisoners. The third involves refusing to do so and thus defying the Strasbourg Court and deliberately flouting the United Kingdom’s obligations under international law. I have been appointed to sit on a Joint Parliamentary Committee to consider this matter, so I think that I should say no more about it.

In closing I should mention the recent Report of a Government Commission set up to consider the desirability of a United Kingdom Bill of Rights to incorporate and build on the United Kingdom’s obligations under the Convention. The members of this Commission had strongly conflicting views as to the merits of the Convention but the majority concluded, for differing reasons, that a case had been made out for a domestic Bill of Rights some time in the future.

I side with the minority that was not persuaded of this. At all events, it is not something that is going to happen in the near future.

²⁵ [2005] ECHR 681; (2006) 42 EHRR 41.