The Mirror and the Dialogue: The Common Law, Strasbourg and Human Rights The mirror principle

determines that the rulings of the Supreme Court (and the House of Lords) must reflect the jurisprudence of the European Court of Human Rights (ECtHR). The idea of the dialogue is a way of thinking about the relationship between domestic courts and Strasbourg in a more refined way. Domestic courts may have to follow the rulings of Strasbourg to enable the coherent development of international human rights but this principle does not mean absolute obedience. Whilst there have been tensions between the domestic courts and Strasbourg, the role that the British courts have played in the development of the human right law suggests that a there is indeed a progressive dialogue that is helping to create a continent-wide human rights culture. European Human Rights and the Common Law The discussion regarding the mirror principle begins with the key sections of the HRA that articulate the relationship between common law and European Human Rights Law. In the case of Re McKerr Lord Nicholls pointed out that the scope of Convention rights in common law depends on the proper interpretation of that HRA. This leads the way back to s.2(1) of the Act which Lord Slynn in R. (Alconbury) v Secretary of State for the Environment, Transport and the Regions pointed out that whilst a court was not bound by decisions of the ECtHR, it was obliged to take account of them so far as they are relevant. Lord Bingham in the case of R v Special Adjudicator, ex parte Ullah developed the argument that: 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 by 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. In his statement Lord Bingham is drawing attention to the central role of the ECtHR. The national courts need to keep pace with the evolution of international human rights law and have to be mindful of the need not to move too far ahead of Strasbourg, or fall too behind. However, this view of the relationship between the national courts and Strasbourg leaves certain matters of detail unresolved which presents very little evidence as to how a domestic court should respond to Strasbourg if the latter misunderstood a fundamental principle of national law. Hence, the relationship between the courts needs to be considered in the light of key recent decisions. Overruling the House of Lords The first case that sets down an example of the House of Lords being overruled by the ECtHR is R (on the application of Marper) v Chief Constable of South Yorkshire. In this case the House of Lords held that there was no infringement of Article 8 when the Police retained the DNA and fingerprint evidence after an acquittal or discontinuance of a prosecution. However, in S. v United Kingdom the ECtHR held that there had been a breach Article 8. The ECtHR argued that it was crucial that

telephone tapping, secret surveillance and covert intelligence gathering were defined a by a set of clear, detailed rules that governed the scope and application of measures. They held that minimum safeguards that offer sufficient guarantees against the risk of abuse and arbitrariness should be provided for. The ECtHR basis of argument was that the UK law was unclear on a number of important points relating to the storage and use of such personal information. In R. (on the application of Gillan) v Commissioner of Police of the Metropolis the House of Lords supported the legality of searches under the Prevention of Terrorism Act 2000 on two individuals who had been stopped near an arm fair. The applicants argued that the continuous renewal of the powers that allowed the police to undertake such searches amounts to a continuous ban throughout the London area. Hence, they asserted that their rights under Article 5 and 8 have been breached by the searches to which they were subjected. In Gillan and Quinton v United Kingdom the ECtHR found that there had been indeed a breach of Article 8 and was critical of the wide and arbitrary nature of the powers under the Act. They held that given the evidence of the disproportionate use of such powers on a selected group of the community the risk of the discriminatory use of the powers against such persons is a very real consideration. In the case of Abu Qatada v United Kingdom the ECtHR overruled the House of Lords on a point relating to Article 6 and torture. Abu Qatada, an Islamic fundamentalist was detained under the AntiTerrorism, Crime and Security Bill 2001 and was subjected to control orders under PTA 2005. In this case, the Secretary of State sought to deport Qatada on the ground of national security to Jordan. Qatada appealed to the Special Immigration Appeals Committee (SIAC) basing his argument under Article 3. Qatada held that if he was returned to Jordan, he would be retried and put at risk of being tortured and evidence obtained by torture of a third party would be used against him. SIAC dismissed his appeal on the ground that the UK government has sought diplomatic assurances that torture evidence would not be used and he would not be mistreated. The Court of Appeal held that the use of torture evidence would amount to a flagrant abuse of Qatadas rights under Article 6 whereas, the House of Lords held on to the contrary that the diplomatic assurances were sufficient, and that there was no rule that in the context of a trial in a foreign state the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice. When this case was appealed to the ECtHR, they agreed with the House of Lords on Article 3 points that diplomatic assurances were sufficient to ensure that Qatada would not be ill-treated. However, they disagreed with the House of Lords in relation to the use of torture evidence. The ECtHR cited the Belmarsh Case and asserted that torture evidence was fundamentally unfair. Due to such certain controversial rulings the domestic courts has expressed doubt about Strasbourgs interpretation of the law. Taking a Stand The starting point is the R. (Animal Defenders) v Secretary of State for Culture, Media and Sport where the House of Lords decided not to follow the rulings of Strasbourg as it would require them to depart from a fundamental principle of media neutrality before an election. In this case Lord Bingham pointed out the persuasive reasons which justified the House of Lords departure from human rights principles. It was held that although the Parliament had considered the ban on political

advertising to be in breach of Article 10, but had chosen to not lift the ban in order to safeguard the integrity of our democracy. Lord Binghams language suggests that this case raises a profound and fundamental point and, as such, provides a clear rationale for the House of Lords decision. The second major authority, R v Horncastle, also reflects a special issue. In the case of Al-Khawaja and Tahery v United Kingdom Strasbourg held that that there had been violations of Article 6 when the applicants were convicted on the basis of hearsay evidence. In Horncastle the Supreme Court refused to follow this ruling. Lord Phillips boldly stated that there would be rare occasions when the domestic court doubts a decision of the Strasbourg Court to sufficiently appreciate or accommodate principles of common law. In such situations it would be acceptable for the domestic court not to follow the ruling and to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue. In Al-Khawaja and Tahery v United Kingdom Strasbourg reconsidered their ruling and decided that the Supreme Court was right on this occasion. In relation to the exclusion of the hearsay evidence rule, the ECtHR accepted that they had ignored the particulars of the common law when it came to hearsay evidence i.e. the common law had introduced its own principles of weighing the opposing interests of those involved and ensuring that there were checks and safeguards on the administration of hearsay evidence. Jumping Ahead of Strasbourg There are occasions where the domestic court jumps ahead of Strasbourg jurisprudence as seen in Ghaidan where the CA anticipated the outcome of Karner v Austria. This issue recently was brought forward in Ambrose v Harris. In this case the issue was whether Article 6 should be interpreted to provide legal advice before interrogation took place in a police station. The Supreme Court held that since this point had not yet been determined by the ECtHR, the Supreme Court could not make a ruling that anticipated developments in Article 6 jurisprudence as per Lord Hopes speech. Lord Kerrs dissenting judgment provides a stronger criticism of the Ullah dictum. He recognised that domestic courts should have the power to define Convention rights when there was no clear decision from Strasbourg. His words suggested that it would be impractical for the national courts to wait for Strasbourgs ruling and as a matter of elementary principle, it is the courts duty to address those issues. He declared that if the much flaunted dialogue between the national courts and Strasbourg is to mean anything the Supreme Court must assert itself and show how it believes the law should develop. The House of Lords Takes the Lead: Developing Human Rights Principles There are certain instances in which the House of Lords has suggested developments of the Convention jurisprudence that increase the protection of the human rights. EM (Lebanon) v Secretary of State for the Home Department concerned an asylum seeker who argued that her removal to Lebanon would be a breach of her rights under Article 8. She would have been forced to give up her son to her abusive and violent partner under Sariah law. Lord Hope pointed out that there was a real risk that the very essence of the family life that mother and child have shared together will be destroyed. Strasbourg indicated that in the absence of exceptional circumstances, aliens cannot claim any right under the Convention to remain in a country to escape from the prejudiced effects of the system of family law in the country of their origin. This means that removing EM to Lebanon would not be a violation of her rights. Nevertheless, The House of Lords

went on to hold that a flagrant violation of EMs rights would take place if she was returned to Lebanon as the evidence suggested that the relationship between mother and son was one of love and mutual dependence and their family life would be destroyed if the custody was passed on to a man who was abusive towards EM. In the case of Re G, an unmarried couple, who were living together, wished to apply for adoption of the womans child as the partner was not the childs biological father. Their application for adoption was prevented under Article 14 of the Adoption (Northern Ireland) Order 1987 because the couple was not married. The couple argued that the Order breached Articles 8 and 14 of the ECtHR. The House of Lords held that their rights have indeed been breached as it was wrong that the law should be based on the presumption that an unmarried couple could not make suitable adoptive parents. It was argued that the ECtHR would likely hold the discrimination against a couple wishing to adopt on the ground that they were not married to be a violation of Article 14 of the Convention. The House of Lords was suggested to give a principled and rational interpretation to the concept of discrimination on grounds of marital status as the margin of appreciation was asserted to apply to the courts as well as the legislature as per the national authorities. R. (on the application of Limbuela) v Secretary of State for the Home Department concerned three asylum seekers who had been refused support under the Immigration and Asylum Act 1999 as the had not claimed asylum as soon as reasonably practicable under the Nationality, Immigration and Asylum Act 2002. The applicants were in dire circumstances: slept in the open, prevented from working and relied on charity to support them. They argued that there suffering was grave enough to constitute as a breach of Article 3 of the Convention. The Secretary of State appealed against the order of the judges who granted the claimants application. The House of Lords supported the original applications and determined the correct test to assess inhuman or degrading treatment under Article 3 related to the severity of the entire situation of work limitations and scarcities. Lord Bingham stressed upon Lord Hopes argument which showed that the Convention jurisprudence could be pushed in a specific direction: Article 3 cases have a higher threshold of what constitutes as a minimum standard of severity. It would not be possible to interpret Article 3 in a broad manner and derive a general public duty to provide for the destitute but the threshold of severity may be crossed if an applicant with no means is by the deliberate action of the state denied the basic necessities of life as per Rabone and another v Penine Care NHS Foundation Trust. Reluctant Partners In order to understand the main case AF, a brief reconstruction of the context is required. In MB the House of Lords held that failure to disclose closed procedure material was compatible with Article 6, although there would be rare occasions when failure to disclose did breach the Article. Failure of clarity over the precise terms of the ruling in MB provided ground for the CA to order an appeal in AF. However, just after the House of Lords had begun its hearing of the case, Strasbourg published its judgment in A. and others v United Kingdom. Lord Phillips argued that A. meant that closed material could not be relied upon when it contains the major evidence against applicant that was not available in the open material. Lord Hoffman provided a powerful dissenting statement in which he asserted that although the ECtHR should be followed,

the courts decision on closed procedure material was wrong and that it would compromise the system of control orders. The House of Lords had no choice but to acquiesce to Strasbourg. This argument led to Lord Hoffman to the interpretation of s.2(1)(a). It requires the court to take into account the ECtHR and therefore, in principle the House of Lords could prefer not to follow a Strasbourg ruling. However, such a course of action would risk putting UK un breach of the ECtHR. The cases of MB and AF were exercises in reading down the PTA under s.3 of the HRA. In MB the House of Lords read down para 4 of the schedule to the 2005 Act to ensure that an irreducible minimum of procedural protection was accorded to the controlled person. In AF para 4 was again read down to make it as coherent with Article 6 protection. Lord Phillips commented that the approach in MB marked a departure from the apparently absolute requirements of the relvant statutory provisions. The approach of the court raised questions about the extent to which the statue could be made compatible with the Convention. However, as a declaration of incompatibility was not suggested by either party, there is no good reason to let the reading stand down. The slightly less dramatic case of Pinnock v Manchester City Council shows that the Supreme Court will follow Strasbourg but retain a critical eye on its decisions. In Pinnock, the Supreme Court gave a definitive conclusion to a long running argument over Article 8 which required the judge to consider the proportionality of eviction. In the House of Lords the dissenting judgements given in Doherty, Harrow and Kay suggested that such arguments could be made. Pinnocks case before the Supreme Court was that the dissenting line of argument should be followed since it is consistent with the rulings of the Strasbourg court. The Supreme Court stressed that Strasbourgs, now, consistent and unambiguous approach should be taken into account in determining whether or not it was appropriate for this Court to depart from three decisions of the House of Lords. The Supreme Court cited Horncastle and argued that it was not bound to follow every decision of the ECtHR as it would be both impractical and inappropriate. It was necessary to preserve the ability of the Court to engage in the constructive dialogue with the ECtHR as it is of value to the development of the Convention law. It was said that Strasbourg should be followed where there is a clear and constant line of decisions that are not in line with the some fundamental aspect of common law and when Strasbourgs reasoning does not appear to overlook or misunderstand some argument or point of principle. This principle was applied to Pinnocks case when the ECtHR case law considered the relevant principles of domestic law. As seen in the ruling in Doherty, English law was already moving towards Strasbourg jurisprudence. Lord Neuberger pointed out in context to the Article 8 point that had the British courts ruled on it they would have followed the dissenting judgements in Harrow and Kay. Thus, in order for English law to be consistent with ECtHRs position on Article 8, the matter of proportionality would have to be taken into consideration.