In March 2012, in an article entitled ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ Baroness Hale said the following:
“Lastly, I have heard it argued that our considerable respect for the Strasbourg jurisprudence is getting in the way of our regarding the Convention as a properly British Bill of Rights, of taking its guarantees as a starting point and working out the proper balance between the competing interests for ourselves. It might even be suggested that if we had paid less attention to the Strasbourg jurisprudence, we would not have given human rights such a bad name in certain quarters, because we could be seen to be having regard to British values, British mores and British legal principles.”
She was herself making reference; generally, to a series of cases in which the Supreme Court’s decisions can be said to have ‘mirrored’ that of Strasbourg’s, and more specifically to the scholarship of Francesca Klug and Helen Wildbore, in the light of those decisions.
This paper is an attempt to revisit some of those cases, and the controversy that they have engendered, and argue that ultimately they did play a role, indeed a significant role in feeding the anti-European sentiment that made the ‘seemingly impossible’, in the form of our unstoppable trajectory to exiting the European Union (and most likely the Council of Europe if Theresa May is re-elected in 2020), a very real, if not certain outcome.
Not written in a spirit of blame, it is simply an attempt to ‘understand’ how we might have arrived at this constitutional juncture, and that to a degree, does require apportioning ‘responsibility’. I shall openly draw on the work of New York psychoanalyst Doris Brothers as I develop the idea that ‘uncertainty’, which I believe these decisions engendered, has played a large part in fuelling both societal disregard for European ‘values’, with legal values representing just one ‘set’ of such values, and by so doing, contributing to a wider cultural ‘dysphoria’ where in Brothers’ terms, ‘complexity-reducing dualities’ can flourish.
If there is a psychological equivalent to horror vacui, it would have to be mooted in terms of ‘uncertainty’ or some such equivalent. If as Brothers suggests, trauma begets uncertainty, it doesn’t seem an enormous leap of faith to assert that uncertainty is a ‘state of mind’ that ‘we’, both as individuals, and as a society will recoil from. A noxious stimulus if you will.
And just as Brothers was able to observe in her patients, one can identify many of these ‘trauma-generated’ (or ‘attempt-to-reduce uncertainty’) patterns emerging over the last decade or so; “the transformation of certainty into certitude”, “denial[s] of sameness and difference” and “the creation of complexity-reducing dualities”. It was just this tendency, one can argue, that drove David Cameron (who purportedly wished to stay in Europe politically, but yet was unable to constrain his frustration at some of the judgments passing back and forth between the UK’s higher courts and the European Court of Human Rights) to reduce the nation’s constitutional destiny to the quintessential ‘complexity-reducing duality’, a referendum.
June 23 2016 saw the nation being posed a seemingly very simple question:
But with none of the ‘procedural constraints’ that would usually ‘hedge’ in such a proposition, we in true British pantomime style were simply asked whether we “believed in fairies or not”. Chaos and consternation (not to say legal ramifications) have flowed from a nation simply doing what it was told to do. In this particular instance, opting for the latter ‘leave the European Union’ option, has left the nation, and to a degree the world in a state of not entirely positive wonderment. Not I think so much at the actual decision, but at the extraordinary degree of naivety that underpinned the way that decision was arrived at.
Lady Hale’s analysis followed on the heels of, but interestingly makes no reference to Lord Irvine’s 2011 Bingham Centre for the Rule of Law lecture, A British Interpretation of Convention Rights. Though there is a broad consensus between the two writers, there is also a detectable divergence. Lady Hale ends on a note of optimism (“we may look forward to an even more lively dialogue with Strasbourg in future”) whilst Lord Irvine’s offering has a distinct undertone of disbelief and frustration, and concludes with a velvet-gloved admonition:
“This temptation must be rejected. Section 2 of the HRA means that it is our Judges’ duty to decide the cases for themselves and explain clearly to the litigants, Parliament and the wider public why they are doing so. This, no more and certainly no less, is their Constitutional duty.”
Whilst both commentators agree (and I draw freely on the cases used by both) that there have been some more ‘progressive’ cases; it is the case line that runs Alconbury Developments, Ullah, Al-Skeini, Ambrose that oftentimes first comes to mind, that to a degree created that all important ‘first impression’ and one from which, after the media had made merry, it has proven extremely difficult (in spite of some moves in the right direction) to recover from.
The genesis of what Lord Irvine saw as an excessive ‘deference’ to the European Court, what Lady Hale saw as “getting in the way of our regarding the Convention as a properly British Bill of Rights”, may be traced to Lord Slynn’s Alconbury Developments  speech when referring to s. 2 (1) of the Human Rights Act 1998, he stated:
“…although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.”
And there you have it, the ‘confounding variable’, a ‘clear and constant jurisprudence’, had entered the calculations and to an extent it has yet to be eradicated. Only a year later, in Ullah  Lord Bingham was adding the gelatin to the jam when he opined:
“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”
which Lord Brown made his own in Al-Skeini  when he ‘respectfully suggest[ed]’:
the last sentence could as well have ended: “no less, but certainly no more….”
By the time we arrive at AF and Ambrose (2009 and 2011 respectively), a disturbing pattern of unquestioning ‘deference’ to Strasbourg, had definitely set in, and the higher courts were making decisions that even they didn’t believe in; with perhaps Lord Hoffmann’s position in AF  (following just weeks after the Grand Chamber judgment in A v UK) setting the high-water mark:
“A v United Kingdom requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”
with Lord Hope’s judgment in Ambrose leaving little room for optimism that a true ‘dialogue’ was taking place, when he stated:
“Lord Bingham’s point…was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation. That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.”
A judgment against one’s better judgement is not what we expect from the Supreme Court and neither should it be; and Lord Irvine (who supports his position from a variety of sources including Hansard) is very clear, that perhaps more importantly, it was not what Parliament had intended.
He himself said, back in 1997, when introducing the bill to Parliament:
“[the HRA] will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe.”
whilst Lord Bingham suggested:
“it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area … British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make”
The fact this has not come to fruition, and I think it is fair to say that it has not, is perhaps all the more surprising, in that the higher courts, by the time the Human Rights Act entered into effect (2 October 2000) were no strangers to either European Union Law (through the impact of the European Communities Act 1972), nor to Convention rights; the United Kingdom having been a signatory to the European Convention on Human Rights since the early 1950s.
There had been plenty of time to adjust to Lord Denning’s ‘incoming tide’ of civilian mores; and as such, for an extended period of time, some 10-15 years there existed a very real ‘window of opportunity’ to develop a uniquely British judicial ‘take’ on the ECHR, and the Convention rights that flowed therefrom; and by so doing to make a significant contribution to how human rights developed both domestically and in Strasbourg. To establish a ‘dialogue’ with Strasbourg.
Though briefly observable in cases such as Horncastle, as it was ‘impacted’ and ultimately came to ‘impact’ Al-Khawaja, the conversation never really got started.
It is not my purpose here to look in any depth, at the reasons for this, but its effect. It created doubt, indecision and to a degree disappointment; all the hallmarks of ‘uncertainty’ in the terms of our original hypothesis. Constitutional politics entered a new era, to use Aileen Kavanagh’s term; and the ‘votes for prisoners’ prove to be the straw that broke the camels back.
Uncertainty begets uncertainty.
The nation was asked to make sense of a Prime Minister, who one the one hand, was extolling the virtues of the single market, yet with the other, was vowing to ignore the rulings of the European Court. The stage was being perfectly set for the European Union Referendum Act 2015, the disastrous lack of clarity that its ’silence’ has engendered, and ultimately the populist divisions that we are now witnessing.
By failing to truly appreciate what was being asked of them, the House of Lords, now the Supreme Court, contributed to this confusion. By failing to accurately grasp Parliament’s intent (as regard s. 2 (1) Human Rights Act 1998), and their establishment, and ultimate incorporation of of the ‘Ullah principle’ they as Lord Irvine suggested:
“elide[d] two distinct concepts. The UK Courts have no power to bind any other CoE member state, and the Strasbourg Court is of course not bound by their decisions. The domestic Courts do not interpret the content of the ECHR as an international Treaty; they interpret the Convention rights under domestic law.”
As Homer nodded so ‘uncertainty’ crept in from the cold; at best the nation faced neurotic ‘ambiguity’, at worst a schizophrenogenic/‘double-binding’ parent in the form of David Cameron. None of this helped by the complexity of the European institutions, and an executive that barely seemed to know its Strasbourg from its Luxembourg. But there you have it, and here we are.
If we have learned nothing, other than how poor Horace might have felt at times, when even the great Homer could no longer conceal his corporeal frailty; something of the fear and indignation (‘indignor’) we feel when confronted with ‘uncertainty’ from those we have appointed to be our keepers, then perhaps we have still learned something. But we can ask no more of our judiciary, than that they be human, even when they are as eminent and statesman-like, as the late great Lord Bingham, about whom Lord Irvine was originally referring. Unfortunately, to complete Lady Hale’s literary device, the net result is that ‘uncertainty’ as to quite what Argentoratum just said, or meant by what it just said, is rapidly being replaced by a very cold and certain clarity as to exactly what London has in mind; and that may well be iudicium finitum.
i. indignor quandoque bonus dormitat Homerus
iii. Doris Brothers – Toward a Psychology of Uncertainty: Trauma-Centered Psychoanalysis
iv. nature abhors a vacuum
v. Miller/Santos v Secretary of State for Exiting the European Union  EWHC 2768 (Admin) & McCord, Re Judicial Review  NIQB 85 (28 October 2016) being just two examples
vi. Lord Irvine of Lairg – A British Interpretation of Convention Rights UCL Judicial Institute/The Bingham Centre for the Rule of Law
vii. R (Limbuela) v Secretary of State for the Home Department  1 AC 396 EM (Lebanon) v Secretary of State for the Home Department  1 AC 1198 R (G) (Adoption)  1 AC 173
viii. R (Alconbury) v Secretary of State for the Environment, Transport and the Regions  2 AC 295
ix. R (Ullah) v Special Adjudicator  2 AC 323
x. R (Al-Skeini) v Secretary of State for Defence  1 AC 153
xi. AF v Secretary of State for the Home Department  3 WLR 74
xii. Ambrose v Harris (Procurator Fiscal) 1 WLR 2435
xiii. in particular the dialogue that took place concerning hearsay
xiv. Application no 3455/05
xv. see cases such as R v Secretary of State for the Home Department ex parte Brind  & Derbyshire CC v Times  where pre-HRA 1998 the court drew on Convention rights as a source of legal wisdom…
xvi. Bulmer v Bollinger  Ch. 401
xvii. R v Horncastle  UKHL 14;  2 AC 373
xviii. Al-Khawaja and Another v United Kingdom 49 EHRR 1
xix. Lord Irvine suggests: “Many of our Judges have all too easily slipped into the mind-set that the domestic Courts, even the Supreme Court, are effectively subordinate (in a vertical relationship) to the ECHR.”
xx. Aileen Kavanagh – Constitutional Review Under the UK Human Rights Act (Law in Context)
David Howarth: On Parliamentary Silence
xxv. Lord Bingham having sadly passed September 11 2010