Strasbourg has spoken

But the case for reform is far from closed

Judges at the European Court of Human Rights have told a review panel appointed by the Ministry of Justice that reforming the Human Rights Act 1998 could lead to more defeats for the UK government at the Strasbourg court.

The independent Human Rights Act review, chaired by Sir Peter Gross, has held a number of meetings with interested parties ahead of a report expected this autumn. On 20 May, Gross and his colleagues had virtual discussion with Robert Spano, president of the human rights court, and two of his fellow judges: Tim Eicke from the UK and Síofra O’Leary from Ireland. Minutes of the meeting, prepared by the European court and dated 26 August, were published today.

European Court of Human Rights, Strasbourg, with offices on the left and the courtroom intended for the European commission on human rights to the right (picture by Francis Robert)

A key passage in the minutes addresses what could happen if parliament amends the Human Rights Act so that UK courts would no longer have to take into account rulings by the Strasbourg judges on the human rights convention:

The fact that there were now so few violations found against the UK pointed to the UK courts successfully applying the convention at the domestic level.

In considering the operation of the Human Rights Act, it was worth considering that any future divergence between that act and the convention might result in more cases being brought before the court from the UK.

Moreover, any potential “decoupling” between the Human Rights Act and the European convention might also have the effect of reducing the quality of the judicial dialogue between the UK superior courts and the European court and the benefits that have flowed therefrom.

There was a very good equilibrium between the European court and the UK courts at the present time, although that did not mean that the two were always in agreement.

Though this summary does not say that “future divergence” would lead to more adverse findings, that meaning is clear from the context.

It’s a message that’s buttressed by a case referred to at the meeting. Ifeanyi Chukwu Ndidi was brought to the UK from Nigeria as a baby in 1989. He and his mother were granted six months leave to enter as visitors. They remained in the UK, with Ndidi’s mother and two younger siblings eventually becoming British citizens.

As a teenager, Ndidi was convicted of offences including robbery, grievous bodily harm, burglary, and the supply of class A drugs. He received 16 adverse “adjudications” while serving a sentence of seven years’ detention.

On release, he was served with a deportation order. Various appeals were dismissed. Ndidi applied to the European Court of Human Rights, arguing that deportation to Nigeria would breach his right to private and family life, guaranteed by article 8 of the human rights convention. But the Strasbourg court concluded in 2017 that tribunals in the UK had given “thorough and careful consideration to the proportionality test required by article 8”. There were no grounds for overturning their rulings and the deportation could go ahead.

Spano and his colleagues explained their approach at the meeting in May:

In states in which the substantive embedding of the convention had been largely successful, like the UK, the [human rights] court was in a position to take on a more “framework-oriented” role when reviewing domestic decision-making and to assess whether certain material elements allowed it to grant deference to national authorities…

For example, in the case of Ndidi v UK, the court established the “strong reasons” principle with respect to article 8 cases.

In article 8 cases, the court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the convention and its case-law and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities.

The only exception to this is where there are shown to be strong reasons for doing so. 

The Strasbourg judges stressed the “high quality” of their dialogue with senior judges in the UK. It was clear they could not disagree more with Lord Rodger of Earlsferry, who famously ruled in 2009:

Argentoratum locutum, iudicium finitum — Strasbourg has spoken, the case is closed.

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