By Rebekah Read
In the last few months, as Baroness Hale has said, “Strasbourg-bashing has become very popular”. This was evident again last month, when Tory backbencher Dominic Raab proposed an amendment to the poisonous Immigration Bill. Despite (reports of) repeated cajoling by Tory whips to withdraw the amendment, it was tabled and debated on Thursday.
The amendment to the Immigration Bill
The amendment sought to prevent foreign ex-offenders from avoiding deportation by appealing to Article 8 (right to family life) of the Human Rights Act (“HRA”). Although not passed, the amendment constituted another contribution to the recent swathe of anti-Strasbourg sentiment.
Theresa May pointed out that the amendment is not legal, in that it contradicts the HRA. Usually, when an Act of Parliament is passed which contradicts an earlier one, the later Act takes precedence and the conflicting parts of the previous Act are impliedly repealed. This is called the doctrine of implied repeal. However, the HRA is what’s known as a ‘constitutional statute’ and so it is not subject to the doctrine of implied repeal.
The courts do not have the power to strike down an Act which contravenes Convention rights, but any challenge to the Act by a victim would result in the court issuing a declaration of incompatibility (under s4 HRA). (All legislation is enacted with a statement confirming whether the Bill is compatible with Convention rights (under s19 HRA), anyway.) The victim would, in any event, still have a remedy in Strasbourg. Were Parliament to fail to repeal the incompatible Act, we would find ourselves in the same deadlock with Strasbourg as we are in with the issue of prisoners’ rights; a breach of the ECHR which despite David Cameron’s ridiculous posturing is going to have to be remedied.
Despite May condemning the amendment as illegal, David Cameron said he was “sympathetic” to Raab’s objectives. This awkward situation resulted in the Tories abstaining from the vote, relying on Labour and the Lib Dems to defeat a rebellion by 87 Tory backbenchers. It is clear from scenes like this, that should the Tories win the next election, Europe will be their primary political problem.
The Mirror Principle
The Commons debate on this amendment was hijacked by a number of ministers from both sides of the house. These ministers used the opportunity to berate members of the judiciary who they claim have interpreted the section 2 of the HRA mistakenly, which is why we’re supposedly finding it so difficult to deport foreign ex-offenders.
To explain, section 2 of the HRA requires that UK courts “take into account” Strasbourg case-law in making judgments in connection with a Convention right. Strasbourg decisions are to be used as guidance and are not intended to operate as binding precedent. This must be particularly counter-intuitive for judges operating in a common law jurisdiction like the UK, for whom precedent is sacrosanct.
The requirement to “take into account” was interpreted by Lord Bingham in 2004 to mean that “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 has been termed the ‘Mirror Principle’ and has been followed ever since. In a further case it was held that where there is a “clear and consistent” line of jurisprudence, especially at Grand Chamber level, it should generally be followed.
The Mirror Principle has suffered a fair amount of criticism of late. Some judges, including Laws LJ, have opined that “this approach represents an important wrong-turning in our law”. They, along with the MPs who spoke at the Immigration Bill debate, think that the UK courts should be more willing to stray from Strasbourg jurisprudence, with reference to the doctrine of the margin of appreciation.
Lord Brown in Al-Skeini has said of the Mirror Principle, “I would respectfully suggest that last sentence could as well have ended “no less, but certainly no more.”” He suggests this because member states are not able to appeal a judgment which interprets a Convention right more expansively than extant Strasbourg jurisprudence. A victim, on the other hand, is able to appeal to Strasbourg when a Convention right has been construed too narrowly. His suggestion is that it may therefore be more prudent to go no further than extant Strasbourg jurisprudence as there would be no remedy available for a government aggrieved by an expansive interpretation of a right.
However, in the same vein, one of the main purposes of the HRA was to allow individuals a domestic remedy without the need to take their case to Strasbourg. This is why the Mirror Principle is seen by many to be the correct interpretation of section 2.
Lord Brown’s suggestion that “no less, but certainly no more” could have been an alternative version of the Mirror Principle is questionable. Lady Hale, who agreed with him at the time, no longer does. She reads parliaments intention as being that British judges should develop the convention rights in the ways which they think right, whether or not Strasbourg would do the same. The white paper preceding the HRA, for example, had said that incorporation would enable the British judges “to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”. In this sense, the “no more” aspect of the principle is unduly restrictive.
Lord Irvine, who was one of the architects of the HRA, also disagrees with the Mirror Principle. He explains that section 2 actually obliges the court to confront the question of whether or not the relevant decision of Strasbourg is sound in principle and should be given effect domestically. He argues that “judges should not abstain from deciding the case for themselves simply because it may cause difficulties for the UK on the international law plane.” He thinks British judges should have used s2 to take the opportunity to offer greater, wider protection than that offered by Strasbourg. He agrees with Lord Kerr who dissented in the case of Ambrose v Harris (Procurator Fiscal), saying:
I believe that, in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken
The Tories are not happy with the current position and have used the opportunity of the Immigration Bill debate to put the question of the UK courts’ relationship with Strasbourg on the political map. The same Dominic Raab who tabled the amendment is also part of a panel reviewing potential Conservative party proposals to “overhaul the UK’s human rights law”. This panel is considering options including removing the requirement for the courts to take into account Strasbourg decisions. It will be interesting to see how effective such an amendment would be. It is likely that judges would feel bound to act at least somewhat differently to reflect the Parliamentary intention of the amendment. However, it will, of course, still be the case that, as explained above, a judgment which interprets a convention right too narrowly can be appealed to Strasbourg.
From a political point of view, the prospect of permitting judges to publically dissent from Strasbourg decisions, in cases where Strasbourg is likely to disagree and overturn their decision, plays into the hands of the euro-sceptic side of the party. Dominic Raab and his cohort likely hope that this would signify another stepping stone on the way to stripping Strasbourg of its final decision-making power over the UK’s interpretation of human rights law entirely. There is scope, however, for this to do the opposite; as Lord Irvine and Baroness Hale hope, freeing the judiciary to develop a British interpretation of Convention rights which goes beyond that which Strasbourg intended.
Damian Green’s comments in the Telegraph that human rights are “the base of any democratic free society” are encouraging and should be welcomed. However, he continues, “we have got to restore human rights to their appropriate non-controversial place.” This is more like the rhetoric we are used to and is, as ever, concerning. Putting human rights ‘in their place’ echoes the desire of the Tories to remove access to rights for the minority, rights which are of upmost importance in preserving the rule of law in a democracy.
 Including Jack Straw, Julian Brazier and Dominic Raab himself.
 Para 20, Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant)  UKHL 26
 R (S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196, at .
 R. (on the application of Al-Skeini) v Secretary of State for Defence,  1 A.C. 153, para 106
 1997, Cm 3782, para 1.14.
 An example of the development of a distinctively British rights jurisprudence can be seen in the British protection of animal rights. See, for example, Lord Bingham in R (Countryside Alliance and others) v Attorney General and another  UKHL 52 para 37. Other member states have developed similar state-specific rights jurisprudence, for example the German fundamental value of ‘dignity’ leading to a ban on the game of ‘lazer quest’ in Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberburgermeisterin der Bundesstadt Bonn  ECR I-9609.
 Page 5, Lord Irvine, A British Interpretation of Convention Rights, 14 December 2011: http://www.ucl.ac.uk/laws/judicial-institute/docs/Lord_Irvine_Convention_Rights_dec_2012.pdf
 Page 8, ibid.
 Ambrose v Harris (Procurator Fiscal)  1 WLR 2435