The End of Deference

Dr Iyiola Solanke

The nature of the relationship between the EU and European Convention of Human Rights is once again being discussed following the EU Council of Ministers report to COREPER last week on the current State of Play re Accession of the ECHR. In the post below Dr Iyiola Solanke examines the relationship between Strasbourg and current member state signatories to the ECHR.

If human rights are values for a godless age, dialogue is now the key judicial principle to accompany this age. Thus spake Judge Bratza, new President of the European Court of Human Rights, in a recent article in the European Human Rights Law Review, designed to re-calibrate relationships between Strasbourg and state signatories to the ECHR, especially Britain. Tensions have arisen as a result of mounting dissatisfaction with rulings from Strasbourg.

The Strasbourg court is no stranger to harsh comment – it has attracted the ire of civil society, applicants, the media and governments of many hues in the past. But this time it is different because the biggest salvos are being fired by the country that will oversee management of the court for the next few years – on November 7, the UK took over Chairmanship of the Committee of Ministers, the governing body of the Council of Europe which is the organization responsible for the European Convention of Human Rights … and its court. British Attorney General Dominic Grieve has declared that he sees this as a ‘once in a generation opportunity to drive forward reform of the European Court of Human Rights.’

The Coalition government means business: in March it created a Commission to consider the creation of a UK Bill of Rights to replace the current Human Rights Act. The call for a new Bill is accompanied by a plan to reform the Strasbourg Court to make it more efficient and more competent: Grieve talks of plans to ‘find better ways for the Court to focus quickly, efficiently and transparently on the most important cases that require its attention.’ He highlights the principle of subsidiarity as the key to efficiency: this should be ‘…the guiding principle governing the relationship between our national courts and the European Court of Human Rights.’ The clear intention is to limit the reach of the Strasbourg rulings and establish deference to the national courts as the norm which, according to Grieve, are ‘better placed understand the impact of Convention rights in the UK’.

There has been a long prelude to this attack on the scope of judgments from Strasbourg: notable peaks have included the spat arising from the Strasbourg rulings that withholding from prisoners the right to vote breaches Article 3, Protocol 1 of the Convention. Bratza, formerly UK Judge at the Court, has now shot back. In a recent article he mounts an unequivocal defence of his court, stressing not only the democratic legitimacy of its composition but also of its procedures and guiding principles. In contrast to Grieve, he barely mentions subsidiarity: instead he picks up a theme mentioned only briefly by Grieve – dialogue. In so doing he shifts the focus of the debate from deference to interaction.

Like Lord Walker, in his Thomas More Lecture, Judge Bratza stresses the existence of dialogue between the Strasbourg Court and the UK. Both judges produce interesting examples of this to undermine the charges of high-handed and aloof adjudication: Lord Walker uses the incorporation of 40 paragraphs of Lord Bingham’s opinion by the Strasbourg Court in its Pretty  judgment; Judge Bratza mentions the case of  N v United Kingdom where the Strasbourg Court ‘substantially adopted the reasoning employed by the House of Lords’ and the case of LP where it ‘drew to a large extent on the thorough analysis of the situation by the Immigration Appeal Tribunal.’

In place of subsidiarity, Bratza offers dialogue as a key principle – dialogue can not only ensure ‘greater harmony between the decision-making of the Strasbourg Court and that of the national courts’, but also avoid the development of distrust. He argues that ‘there is room for increased dialogue between the judges of the courts, both informally and through their judgments.’ There is no doubting that Bratza is a pragmatist and a man of the times: by prioritising relationships of dialogue with both national and supranational courts, he is ensuring that the ECtHR remains at the centre of adjudication on human rights in Europe.

Yet it must be asked: at what cost? Courts are traditionally hierarchical: those at the bottom of the national order refer to and follow the decisions of those at the top; those at the top of the national order defer to the rulings of those in the international order. This overt commitment to inter-court dialogue signals the end of deference – Bratza declares that it is not conducive to ‘effective dialogue.’

There is reason for caution and consideration of whether the end of deference is a positive step. What does it mean in particular for the vulnerable, the harassed, the unpopular and disadvantaged, those ‘for whom the public have little sympathy’? Will dialogue shift them from the centre of the ECtHR concerns? It is questionable how closely synergies can exist between the Strasbourg court, which has a single raison d’etre – the protection of human rights – and the national courts, for whom this is just one of many policy objectives to be pursued.  Is Strasbourg moving away from this when it adopts the reasoning of national courts? There is the danger that the focus of the ECtHR may become diluted if it identifies too closely with the positions of other transnational or national courts. Care must be taken to ensure that the voiceless do not lose their voice in Strasbourg as other courts are empowered to raise their own.

However, the end of deference would be of advantage for these groups and society in general if it ushers in an era of judicial accountability. Twenty years ago this phrase would have been an oxymoron: it is now used in at least two book titles (here and here). Dialogue can make judges accountable without undermining the independence of judges. Thus the end of deference may prove beneficial if it means that the public are able to see that ‘their’ judges are not some alien aristocracy set to rule over them’ but citizens, like everyone else who, as Lord MacDonald in an interview for the Today programme in August said, ‘live in the real world just like the rest of us.’ If this is the case then the end of deference may be beneficial in the round, as it will ultimately enhance not only transparency and accountability but also greater respect for the judiciary.

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