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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Woolf, Lord Chief Justice of England & Wales : On the occasion of the opening of the judicial year at the European Court of Human Rights, Strasbourg [2003] UKSpeech Q8SPB (23 January 2003)
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Cite as: [2003] UKSpeech Q8SPB
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Lord Woolf
The Lord Chief Justice of England and Wales
On the occasion of the opening of the judicial year
European Court of Human Rights, Strasbourg
23 January 2003
I am honoured and delighted to have this opportunity to briefly address the members of this Court as the Court is embarking on what is no doubt going to be another challenging year. I have to begin by asking for your indulgence. There was a time when I was accustomed to appearing before judges as an advocate but this is no longer the case. Instead, nowadays I sit as a judge or preside over meetings of judges. I certainly have never before had to appear before judges, particularly judges of 44 nations who have the responsibility of correcting my judgments. I can assure you it is an awesome experience.
However, it is a convenient time for a British judge to be able to address you. As a result of the Human Rights Act, the European Convention on Human Rights has now been part of our domestic law for over two years. So it is already possible to report upon the Act's impact on the law of the United Kingdom. I refer to the United Kingdom deliberately, although you will be aware that the United Kingdom has three independent legal systems. However, so far as human rights are concerned, it is not necessary to draw any distinction between the three systems.
It is my firm impression that, while there was considerable nervousness in the United Kingdom prior to the implementation of the Human Rights Act, the informed view is that making the European Convention part of our domestic law has proved to be a great success. Furthermore, that process of implementation has gone extremely smoothly.
You are no doubt aware that, prior to the coming into force of the Human Rights Act, the United Kingdom, alone among European States, had no written constitution. The statutory recognition of human rights as part of domestic law involved a seismic change in our approach to the protection of human rights. A change of this nature can be as difficult for a mature legal system as it is for a new legal system. For a mature system the change can be unwelcome. As a 19th century judge said "change - do not talk to me about change - things are bad enough already".
There are at least five reasons why, notwithstanding the scale of the change involved in the United Kingdom in making the Human Rights Act enforceable for the first time, the transition has been achieved remarkably smoothly.
1. The first reason, and perhaps the most important, is that the values to which the European Convention on Human Rights gives effect are very much the same values that have been recognised by the common law for hundreds of years. Although prior to the present administration, no Government of the United Kingdom had been prepared to give its citizens the right to enforce human rights directly, it was wrongly assumed that United Kingdom citizens were just as well off under the common law as if they had such a right. This assumption was surprising since while those rights were not expressly conferred on our citizens, when former colonies were about to become independent from Britain, it was thought that their citizens did need such rights and many of the nations which now make up the British Commonwealth were given on independence a written constitution containing such rights. Furthermore, while our citizens, if they wished to enforce their human rights had to come here to Strasbourg to enforce them, for many years the new independent members of the British Commonwealth still had to come to a United Kingdom court, the Privy Council, in order to have their rights finally adjudicated upon. This is fortunate because it has meant that our most senior judiciary were therefore very familiar with the different techniques which a final court of appeal has to employ in order to give effect to human rights.
2. While that is true of the most senior judiciary, for the great majority of the judiciary, all of whom would be faced with having to apply human rights directly, this was a totally new experience. For this reason, before the Human Rights Act was brought into force there was a breathing space of two years during which intensive training took place. Preparation for legislation on this scale was unprecedented in the United Kingdom. The training for the judiciary was accompanied by public bodies conducting an audit of their activities with the intention of identifying any practices which were not human rights compatible so that they could be changed before the Act came into force. This preparation in itself was very worthwhile since it meant not only judges, but officials, Ministers and advocates were immersed in a human rights culture. Change of culture is the most important aspect of the introduction of the Human Rights Act.
3. This process of change was facilitated by the fact that English lawyers and our judiciary, as common lawyers, felt instinctively at home with the manner in which the Strasbourg jurisprudence had been developed. On the framework provided by the Articles of the Convention, it appeared to our judges that the judges of the Strasbourg Court by their decisions had been extremely creative in very much a common law manner: developing the law by giving pragmatic decisions on the facts of the cases that came before them.
4. The fact that the United Kingdom had already for many years been a member of the European Union, applying the Luxembourg jurisprudence, also assisted.
5. Finally, the very sophisticated approach adopted by the legislator when making the European Convention on Human Rights part of our domestic law assisted. The legislator, instead of giving the United Kingdom courts power to strike down domestic legislation, limited the court's power to declaring that the legislation was incompatible with the Convention. The Act then provided a fast track enabling Parliament to remedy the situation.
Despite these advantages, the scale of the change should not be underestimated. The values to which the European Convention gives effect may be shared by all western democracies, but for a country which has a long tradition of regarding the sovereignty of the democratic parliament as being the cornerstone of its constitution, the fact that the Human Rights Act was to make the Convention enforceable, in its own courts, did create a tension. Administrators, Ministers and politicians were used to our judges reviewing their actions, but not to their second- guessing their decisions.
However, in practice, the situations in which the courts have had to resort to making a declaration of incompatibility can be comfortably accommodated by the fingers on one hand. The reason the number of cases has been so small is partly due to section 3 of the Human Rights Act which is one of the most important provisions of the legislation. Section 3 requires the courts, "so far as it is possible to do so" to read and give effect to legislation "in a way which is compatible with the Convention rights". In addition, the courts are required to take into account, though not necessarily follow, the decisions of this court. A happy consequence of this is, that while previously a few experts in the United Kingdom were aware of the rich jurisprudence of this Court, now that jurisprudence is familiar to every judge and competent lawyer in the country. In the cases that I hear it is rare for a decision from Strasbourg not to be cited at some stage of the hearing. The remarkable thing is that although the Strasbourg cases are persuasive, and not binding, authority, I cannot recall it being suggested that my court should not follow a Strasbourg precedent because it did not accurately reflect the law. Without exception practitioners regard the Strasbourg decisions as being of the highest authority.
A reason for this acceptance of the Strasbourg jurisprudence is the fact that this Court has wisely developed the practice of allowing the Signatory States a margin of appreciation as to how they give effect to the Convention rights. This practice is not directly transposable to the domestic situation. This is because domestic courts do not have to determine the relationship between an international body and a national body. Domestic courts are concerned with the different relationship, the relationship between the national court and the national authorities.
Fortunately, although this is controversial, the British courts have developed a parallel doctrine to the margin of appreciation to deal with the relations between the domestic courts and our Parliament and our executive.
The parallel doctrine that has been developed is the doctrine of deference, or as I prefer to say the doctrine of respect. This requires the United Kingdom courts to recognise that there are situations where the national legislature and executive are better placed to make the difficult choices between competing considerations than the national courts.
The court should respect an area of judgement "within which the judiciary defer on democratic grounds to the considered opinion of the elected body or person whose actual decision is said to be incompatible with the Convention". Such an area of judgement is more readily found where the Convention requires a balance to be struck, or where the case raises issues of social and economic policy. It is less likely to be applied in situations where the Convention right is unqualified or where the rights are of a nature which the domestic courts are well placed to assess.
It is however, of the greatest importance to make clear that by recognising the need for respect the British judges are not slipping backward and recreating their pre-Human Rights Act approach, the Wednesbury approach. Our courts are not approaching the issue of respect by merely asking whether a decision reached was one to which the decision maker could reasonably come. The court instead applies the doctrine of respect in the context of considering the proportionality of the balance struck by the decision maker. As Lord Steyn pointed out in Daly [2001] 2 WLR 1622, this requires the reviewing national court to assess the balance struck by the decision maker from the point of view of proportionality, to assess the relative weight accorded to the relevant interests and to enquire whether a limitation on a Convention right was necessary in a democratic society. In other words the court has to ask itself whether there is a pressing social need justifying the decision and whether the response was proportionate to the legitimate aim that was being pursued. The doctrine of deference can only come into play by extending a degree of respect, and no more, to the national authorities when considering the issue of proportionality.
From what I have said so far, it will be apparent that the manner of application of the doctrine of respect by the courts varies according to the context. None of the English authorities suggest that it would have any scope where what is alleged is in contravention of an unqualified Convention right, such as that contained in Article 3. It is primarily, if not exclusively, in relation to an individual's qualified Convention rights that the doctrine comes into its own. It applies in those situations where the executive or the legislature has choices to make, particularly if the choices are ones which it is difficult to make.
As to these difficult decisions, none are more challenging than those that involve national security. It is the first duty of the government to protect its citizens. Acts of terrorism directed at the civil population are totally inconsistent with the values for which the European Convention stands. However, it is when issues of national security are dictating the actions of the executive and the legislature that the protection of individual rights needs particular attention.
Before September 11 the United Kingdom already had legislation which allowed it to deport those who had no right to remain in the United Kingdom if their presence in the United Kingdom was considered, in the interests of national security, not to be conducive to the public good. On an appeal from the Special Immigration Appeal Commission, which was heard by the House of Lords before September 11, but in relation to which the judgment was given after September 11, Lord Hoffmann added a postscript to his judgment referring specifically to the events of September 11. What he said was:
"They are a reminder that in matters of national security, the costs of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions with serious potential results for the community acquire a legitimacy which can be acquired only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions they must be made by persons whom the people have elected and whom they can remove."
The good sense and force of the comments of Lord Hoffman cannot be denied but this does not mean that the courts, while bearing those remarks in mind, do not have to scrutinise carefully the action which the executive and the legislature has taken, to see whether those actions accord with the fundamental rights of the individual under the European Convention.
After September 11 the United Kingdom passed the Anti-Terrorism, Crime and Security Act 2001. In order to bring the legislation into force, the United Kingdom Government felt compelled to enter into a formal derogation from Article 5 (1) of the Convention. It has been pointed out that despite the international nature of the present war on terrorism, the United Kingdom stands alone in deeming it necessary to derogate from the terms of the Convention. Already I have had to hear an appeal under that Act. I do not intend to detain you by referring to my judgment. It is sufficient if I indicate that, while I did not uphold the challenge and did recognise the situation was one where respect was required to be appropriately extended to the Government, I also made it clear that the manner in which the issues were being considered by the courts was wholly different in consequence of the European Convention being part of our domestic law. We did not apply the Wednesbury test.
Having only in the past argued a case before this Court and never having sat as a judge, as some of my colleagues have, I cannot speak other than as an onlooker. However, as an onlooker who has to apply your decisions regularly in the cases that come before me, I have no hesitation in bringing these comments to a close by saying that 2003 will be a good year for European Convention jurisprudence if, as I am sure will happen, you maintain the standards that over the years we have come to expect from the decisions of the European Court of Human Rights. It is in times of stress, such as those with which we are now threatened, that the courage and independence of this Court is so critical, critical not only in Europe but throughout the world in those countries which purport to adhere to the rule of law.
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