Attorney General's speech at Summer School in the Law of the Council of Europe - July 7

The Attorney General delivered a speech 'The Implementation of Strasbourg Court Judgments at National Level – Subsidiarity in Action' at the Summer School in the Law of the Council of Europe.

Introduction

"Thank you, Professor Garde.

I am delighted to be addressing you this morning at the opening of what I am sure will be a fascinating Summer School on the Law of the Council of Europe.

Your theme could not be more topical - the effectiveness of the Council of Europe in Tackling the Pressing Challenges of our times. 

For what pressing challenges we face.

Conflicts rage around the world, new threats are posed by climate change, growing inequality, mass migration, and by emerging artificial intelligence.

The substantive challenges are numerous, global and complex.

And they have to be addressed in an ever more challenging political environment of polarised public discourse fuelled by social media, tempting many towards the easy solutions offered by populist leaders.

In light of these pressing challenges, we must renew our commitment to a strong international rules-based system, underpinned by an unequivocal commitment to the rule of law.

This is why, since taking office, I have spoken repeatedly of my government's commitment to the rule of law. Of how it will act as our lodestar.

This should not be contentious. The Council of Europe's body of constitutional experts, the Venice Commission for Democracy through Law, in their Rule of Law Checklist note that the rule of law is a concept of universal validity.

The “need for universal adherence to and implementation of the Rule of Law at both the national and international levels” was endorsed by all Members States of the United Nations in 2005.

Lord Bingham, one of the UK's most distinguished judges, described the rule of law as “one of the greatest unifying factors—perhaps the greatest—and as an ideal worth striving for, in the interests of good government and peace, at home and in the world at large.”  

What do we mean, though, by the rule of law in the Council of Europe context?

It is not just rule of law; it clearly means much more than that in the European legal tradition.

The Venice Commission, after long reflection on what conception of the rule of law fits best with European constitutional traditions, summarised the rule of law as the presence of six key elements:

legality; legal certainty; the prohibition of arbitrariness; access to justice before independent and impartial courts; respect for human rights and non-discrimination; and equality before the law.

This European conception of the rule of law was heavily influenced by Tom Bingham's account in his wonderfully accessible book, The Rule of Law.

A cornerstone of that rules-based system in Europe is of course the Council of Europe. Formed, you will recall, in the aftermath of World War Two. When we had seen the worst of humanity.

But out of those horrors, a group of like-minded states came together with a pledge to uphold the rule of law, democracy and human rights.

And for over 75 years, the Council, has stood as the conscience of Europe. It has sought to unite us around those shared values. 

And those values have served us well. They have formed a foundation for European peace and prosperity.

I consider that they remain the best hope of protecting us from the threats we face today, and those which are no doubt coming tomorrow. 

At the heart of the Council of Europe system is the European Convention on Human Rights and Fundamental Freedoms.

A shared statement of the rights, which all of us in the European family of nations hold dear.

Based on the UN's Universal Declaration of Human Rights and drafted by a British lawyer, David Maxwell Fyfe.

The rights it contains reflect long-standing traditional common-law rights in our country. 

The supranational system of human rights protection that has been built on those British foundations is one of the great achievements of the post-War period. 

Its very durability demonstrates how well it has combined effective legal protection for the rights of individuals with a sensitivity to the importance of elected governments in our democratic societies.

So my own view on one of the central questions that you will be considering at your Summer School is that the Council of Europe has proved extraordinarily effective at protecting the foundational European values of human rights, democracy and the rule of law. 

It has also, for most of its 75 years, succeeded in uniting Europe around those shared values.

This does not mean of course that every aspect of the Council of Europe must be preserved in aspic.  International organisations and their institutions must always evolve to ensure that they continue to serve their central purpose and that they retain the public confidence of every generation. 

That means we must be prepared to build on our existing mechanisms, developing them where necessary to ensure that they can deal with today's pressing challenges.

Of course, we must always remain vigilant to guarantee that such updating strengthens the protection of our shared values rather than weakening them, whilst ensuring that such reform balances liberty with responsibility, individual rights with the public interest.

There are many ways in which the operation of the Council of Europe's institutions could be improved. 

There is considerable scope, for example, to build on the recent explicit recognition of the principle of subsidiarity in the preamble to the ECHR – for example by helping states to better implement the Convention at national level so that the subsidiary role of the Court becomes less and less required as national protection of ECHR rights improves. 

We should not be afraid – indeed, must not be afraid - of discussing how the European system for the protection of human rights can be improved to ensure that the public are confident that it continues to serve the central purpose on which everyone agrees: that human rights require effective legal protection. 

Rather, we should be confident that we can demonstrate the value of this remarkable piece of institution-building and find imaginative ways of improving its operation in practice, which secures its democratic legitimacy, and ensures it is fit to meet the challenges we face, without weakening its protections.

The execution of judgments, which I know is one of the themes you will be exploring at the Summer School, is one such area in which there is considerable scope to enhance the democratic legitimacy of the ECHR system, and on which the UK has taken a significant lead, so it is to this that I now turn.

The Importance of Language

First, I want to make a small but important point about language.

The first step towards enhancing the democratic legitimacy of the ECHR is to talk about it in a way that is accessible and readily understandable by ordinary people.

The phrase “the execution of judgments” fails that test.

“Execution” is a lawyer's term. The public's understanding of execution is that it has something to do with capital punishment.

Insofar as non-lawyers understand the meaning of the term, the execution of a court judgment sounds like a merely formal step in which the Government does what the court in its judgment has told it to do.

As I will go on to explain, that does not reflect the reality following a judgment of the European Court of Human Rights, which very often leaves considerable scope to the democratic branches to decide how best to respond to the Court's judgment.

If we care about the democratic legitimacy of the ECHR, as we do and as we must, we therefore need a different language in which to talk about what happens following a finding of a violation by the European Court of Human Rights.

Talking about the “implementation” of judgments is preferable to talking about their “execution”.

But even “implementation” downplays the scope for democratic debate and political choice when a State considers how it should respond to an adverse judgment against it.

It is important to frame the discussion in a way which makes clear to ordinary people the scope that usually remains for democratic debate when deciding how to respond.

The obligation to comply with Court judgments

In Article 46 of the Convention States, including the UK, have made an important commitment.  They have undertaken to abide by any final judgment of the European Court of Human Rights to which they are a party.

This obligation, voluntarily entered into by all Council of Europe member states, is a crucial foundation of the international legal order in Europe.  It is key to ensuring the Convention is effective in practice. As the Venice Commission, in their report on the Polish judges case put it: ‘the right to individual petition would be illusory if a final binding judgment of the European Court of Human Rights remained unenforced.”

Everyone agrees that it is a crucial feature of the rule of law that no-one is above the law.  That must include governments. If governments disregard decisions of the courts, then it undermines the rule of law.

As the Venice Commissions puts it in their Rule of Law Checklist, “Judicial decisions are essential to the implementation of the Constitution and of legislation. The right to a fair trial and the Rule of Law in general would be devoid of any substance if judicial decisions were not executed.”

The Convention recognises this, and Article 46 goes on to give the Committee of Ministers the responsibility for ensuring that judgments are given effect. It also includes a power for the Committee to refer cases back to the Court if they consider that a judgment is unclear, or that a Party is not abiding by their obligations.

Subsidiarity in responding to Court judgments

However, it is vital to understand the nature of the process that follows a final judgment of the Court of Human Rights that a state has violated the Convention.

A recurring criticism of the European Court is that it erodes national sovereignty; that when it finds States in breach of the Convention, there is a democratic deficit. Too often their judgments are mischaracterised as an anti-democratic exercise in dictation from abroad.

Confidence risks being undermined by misconceptions about the relationship between the European court and state parties.

I therefore want to emphasise the critical role that national authorities have in implementing those judgments.  

The principle of subsidiarity, captured by Protocol 15 which formally introduced the concept into the preamble to the Convention, means that States have primary responsibility for implementing the Convention rights into their national system.

It states, ‘the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention'.  This recognises that it is domestic authorities with the power and understanding to ensure rights compliance in each country, in light of their cultural values.

That means that States have to have an effective legal framework which gives practical and meaningful effect to those rights.  In the UK that is the Human Rights Act.

But it also means that, following a finding of a violation of Convention rights by the Court, states also have the primary responsibility to find a way to give effect to those rulings in a way that works for their particular national context.

The responsibility for implementing judgments is therefore a shared responsibility between the branches of the State, including the democratically elected branches. This ensures that no judgment ends in Strasbourg. That it finds full, timely implementation at a national level.

It goes hand in hand with the margin of appreciation – the recognition from the European Court that different countries have different legal, cultural, and social contexts, and therefore, they should be given flexibility in how they interpret and apply the Convention rights.

Subsidiarity is not subordination; the European Court institutions must still ensure that national authorities keep to their obligations, but the main responsibility for working out how to do so rests with the states, in accordance with their democratic processes. Balancing national sovereignty with respect for universal rights.      

Subsidiarity is a vital link between the mutually reinforcing principles of democracy, human rights and the rule of law.

The process for the implementation of judgments is an example of subsidiarity in action: all arms of the state, and civil society, playing their part in deciding the most appropriate way of giving effect to the rulings of the European court.

UK processes

Before saying a little about how the UK gives effect to judgments from the European Court, it is worth recalling that the UK has the lowest per capita rate of violations of any party. Last year there were just three judgments against the UK, one finding a violation, one finding no violation and one which was settled. So perhaps with less adverse judgments, we have an easier job ensuring that they are implemented.

But even with that concession in mind, the UK does implement the judgements of the European Court with a current closure rate of around 98%.

I want to now offer some reflections on our approach and why I see it as subsidiarity in action.

The European Convention is given further effect in domestic law through the architecture of the Human Rights Act 1998. That architecture includes a power in section 10 to respond to adverse judgments from the courts – both the European Court of Human Rights and domestic courts.

This enables the Executive a ‘fast track' way of introducing legislation into Parliament to remedy the breach of Convention rights which the court has found. How to respond to any adverse decision therefore falls to the democratically elected government to decide.

But as well as the Executive, the legal framework of the Human Rights Act, and the institutional human rights machinery that has been built in the UK, ensures that both Parliament and civil society also play their part.

The Joint Committee on Human Rights is the Parliamentary Committee responsible for examining matters relating to human rights. It scrutinises government legislation to ensure that it is compatible with human rights. It also systematically scrutinises the Government's response to human rights judgments of courts. Where that response is by way of a Remedial Order, the Committee's terms of reference require it to report on any Remedial Order made under the Human Rights Act, prior to consideration by both Houses of Parliament.

As part of this process, the Committee often calls for evidence and welcomes input from civil society.

This system allows for considerable democratic input into the process of responding to a Court judgment. It also offers a high level of democratic scrutiny, ensuring action is taken in response to adverse judgments to protect rights, but recognising that there might be a range of possible responses which satisfy the judgment. It therefore supports the rule of law values of transparency and accountability.

Let me illustrate with an example. In May 2021 the Grand Chamber found a violation of Articles 8 and 10 in the case of Big Brother Watch and Others v the UK.

These cases each challenged elements of the UK's investigatory powers regime. At the time of the judgment, enhanced safeguards had already been introduced, however, there remained issues with Convention compliance.

The then Government laid before Parliament a proposed Remedial Order to introduce further safeguards into the regime, in particular to offer further protections for journalistic material.

The Joint Committee on Human Rights published their report, recommending one change to further protect rights. This was accepted by Government. Representations were also received from the Investigatory Powers Commissioner's Office and the UK Intelligence Community, which were also taken into account.

The Remedial Order was passed by Parliament and amended the regime to better safeguard the rights of all. An action report of the steps taken was sent to the Committee of Ministers, who closed their supervision of the judgment.

This is just one example of how the democratically elected government, and Parliament have responded to a judgment from the European Court to ensure not just rights compliance, but rights compliance in the national interest, and on the terms of a sovereign Parliament. The process for responding to a judgment of the Court is subsidiarity in action. Understanding and explaining it as such is vital for maintaining confidence in the credibility and legitimacy of the Convention.

Conclusion

We must counter the common perception of the Court's judgments as a foreign imposition on our national sovereignty and reflect the more nuanced reality. The proper implementation of judgments is an essential pillar of the rule of law.

But it is also subsidiarity in action; the national authorities, including the democratic branches, debating and deciding how best to respond to a Court judgment, and then working in partnership with the Council of Europe institutions to give effect to our shared values.

I therefore welcome the focus of this Summer School on this very important issue. There is no justice for victims if judgments are not enforced, because a judgment without execution is a right without remedy. But to secure the public's confidence in the democratic legitimacy of the system, institutional mechanisms and processes must be developed to ensure meaningful opportunities for political debate about how best to respond to Court judgments."