European Convention on Human Rights

Lord Scott of Foscote Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I must add my own expressions of gratitude to those of many others in your Lordships’ House to my noble and learned friend Lord Irvine of Lairg for introducing this debate on an interesting and important subject. I have found myself in broad agreement with nearly all that has been said by your Lordships, but I want to say one or two things about the status, function and relevance of the Strasbourg court decisions.

The Strasbourg court is the court of the convention. One uses the expression “the convention” in a slightly misleading sense because the convention as such was not incorporated into our domestic law. What were incorporated were the specific articles of the convention, which are set out in the schedule to the 1998 Act. For convenience, however, I will continue to refer, as others have done, to the convention having become part of our domestic law. The authority of the Strasbourg court, in so far as it was provided for under the convention, was not dealt with by incorporation; it was dealt with in the body of the Act by Section 2, which said in terms that the courts of the UK, in determining questions which arose in connection with convention rights, “must take into account”—those were the critical words—any,

“judgment, decision, declaration or advisory opinion”,

of the Strasbourg court. Surely the words “take into account” must mean what they say: no more, no less.

The judgments of the Strasbourg court are highly persuasive. The court is composed of a number of very eminent jurists and the judgments that they produce, when they are relevant to issues being decided by the courts of this country in relation to the incorporated articles of the convention, are highly persuasive. However, the judgments are not binding. The fact that they are not binding was recognised by the noble and learned Lord, Lord Irvine, when that Bill was before this House on Report. At that time he said:

“There may … be occasions when it would be right for the United Kingdom … to depart from Strasbourg decisions”.—[Official Report, 19/1/98; col. 1271.]

So it is that domestic courts are not bound by Strasbourg decisions.

In a fairly recent House of Lords decision, Kay v London Borough of Lambeth, when the House of Lords was the final court in this country, this House held unanimously that where there were conflicting decisions between the Strasbourg court on the one hand and the House of Lords on the other—it would now be the Supreme Court—the obligation of other domestic courts was to follow the House of Lords, not the Strasbourg court. I believe that it is important to bear that in mind: the Strasbourg court decisions are not part of the law of this country. They are highly persuasive and they may be followed, but they do not have to be.

My second point concerns the nature of the Strasbourg court—the court of the convention—as a court of final resort. The Supreme Court now and the Law Lords in days past constituted the final court of appeal in the United Kingdom, not just England and Wales but Scotland and Northern Ireland as well. From time to time, courts of final appeal mould existing law in order to cater for new situations which appear to have arisen, or to take account of new ideas which have been formulated and appear relevant to cases for decision. That is what the Supreme Court does, what the Law Lords used to do, what the Supreme Court of the United States does and what the High Court of Australia does.

All of this is, in a sense, inconsistent with the strict constitutional principle of the separation of powers. Yet that does not matter because, in all those jurisdictions I have mentioned, there stands over the court a democratically elected and accountable legislature which can always reverse judicial decisions if the legislature considers that that is necessary and the judges have gone too far. That safeguard makes development of the law by judges acceptable and desirable, in my opinion. However, so far as the Strasbourg court is concerned, there is no comparable control from a democratically elected and accountable legislature. That feature of Strasbourg jurisprudence has to be borne in mind: the judges’ decisions cannot be reversed, which is another reason for underlining the requirement that the judgments should be treated in this country not as binding but merely as highly persuasive.

The case of prisoners’ votes is illustrative, or may become so. Strasbourg ruled that it was contrary to human rights to have a complete bar on prisoners voting. However, that is not binding in this country. It is persuasive, and there may be very good reasons for allowing prisoners, or some prisoners in some circumstances, the right to vote, but Parliament would have to decide that. In my respectful opinion, however, it is quite wrong to say that failure to follow Strasbourg is a failure to accept the rule of law. Strasbourg does not form part of the rule of law so far as this country’s jurisprudence is concerned. It is highly important to make sense of the relationship between the Strasbourg court and the courts in this country.