I. Introduction
How ought the courts in the United Kingdom to approach a question under the European Convention on Human Rights which has not four-square been settled by the European Court of Human Rights at Strasbourg? Ought the courts to content themselves only to “shadow” the European Court,Footnote 1 the effect of which would be that when there is no clear European case on facts similar to those facing the national court no succour may be found in the Convention rights?
This article argues in favour of an approach to Convention rights by national courts that focuses on the principles to be found in the ECHR as expounded by the European Court.Footnote 2 A national court applying the Convention must, on this approach, be at pains to identify the principles on which the European jurisprudence is based, and on that basis ascertain the appropriate level of protection. On this reading national courts should marshal the apposite Strasbourg authorities in order not to limit the number of possible readings of the Convention rights, but in order to identify the broader principle which animates the jurisprudence. The recourse by national courts to the Convention must then be based on the search for principles – not the casting around in the jurisprudence of the European Court for decisions on cases decided upon the same facts as the one of which the national court is seized. This approach thus entails standing back from the Strasbourg jurisprudence; standing back in this way, with a view to ascertain the broader principles, will allow the national courts all the better to advance the protection of Convention rights.
The Approach Suggested by Lord Bingham in Ullah
The approach to the jurisprudence of the European Court set out by Lord Bingham in Ullah (and as, arguably, developed in later cases) has become the orthodoxy of the UK courts in their application of the Convention rights.Footnote 3 The duty of the national courts is, on the Ullah approach, “to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.Footnote 4 While much attention has been accorded to the words “no more, but certainly no less”,Footnote 5 considerably less attention has been given to that which Lord Bingham, and the rest of the unanimous House of Lords, actually did in Ullah.
At issue were the art. 9 rights of Mr Ullah, a Pakistani national whom the United Kingdom wanted to return to Pakistan, where as an active member of the Ahmadhiya faith it was undisputed that he would suffer religious discrimination. The primary question, as put by Lord Bingham, was whether any article of the Convention other than art. 3, on torture and inhuman and degrading treatment, could be engaged in relation to a removal of an individual from the United Kingdom where the anticipated treatment in the receiving state will be in breach of the requirements of the Convention, but such treatment does not meet the minimum requirements of art. 3 of the Convention.
In the Court of Appeal Lord Phillips M.R. had concluded that while “the Strasbourg court has contemplated the possibility of such a step” – i.e. to say that it was not only art. 3 which applied in such cases – “it has not yet taken it”.Footnote 6 The House of Lords, however, did not see the matter quite the same way; rather their Lordships went through the Strasbourg authorities, none of which provided a four-square example showing that the European Court had made “such a step”, in order to ascertain the principle on which the Court had built its rulings. This is particularly clear in the speeches of Lord Bingham, Lord Steyn, and Lord Carswell. The House had been referred to one case only in which the European Court had considered art. 9 of the Convention in a so-called foreign case (a case bearing upon a possible breach of the Convention abroad were the claimant to be transported out of the state in issue); this was Razaghi v Sweden.Footnote 7 The applicant in Razaghi, an Iranian Christian, had relied on art. 9, in addition to other articles of the Convention. The European Court said about the applicant's claim under art. 9:
As regards the applicant's right to freedom of religion, the court observes that, in so far as any alleged consequence in Iran of the applicant's conversion to Christianity attains the level of treatment prohibited by article 3 of the Convention, it is dealt with under that provision. The court considers that the applicant's expulsion cannot separately engage the Swedish Government's responsibility under article 9 of the Convention.
Razaghi in other words did not give very strong support for the claim that art. 9 applied where the threshold of art. 3 was not attained. This did not deter the House of Lords. Although there was no clear Strasbourg case to support the conclusion, Lord Bingham was satisfied that “the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition of expulsion”.Footnote 8 Lord Steyn said that the Court of Appeal had adopted “too narrow an approach to the evolving jurisprudence of the European Court. Where it concludes that there was no breach of a convention right, the European Court may nevertheless rule on the reach of the right”.Footnote 9 Lord Carswell said that he was “satisfied that a fair reading of the Strasbourg cases requires a national court to accept that these articles could possibly be engaged”; “there does not appear to be any conceptual reason why article 9 should not be capable in principle of engagement”.Footnote 10
This seems to be an aspect of Ullah deserving of more attention; thus far it has been all but obscured by the words “no more but certainly no less”. In fact the way in which the House of Lords decided Ullah seems to go against that which is understood today to be the import of the Ullah principle. In addition comes the fact that while Lord Bingham set out in his Ullah dictum what has become the orthodox approach of the UK courts to the Strasbourg jurisprudence, he on later occasions made both judicial and extra-judicial statements which seem to indicate another approach and ought also to give some pause to those who defend a strict application of “no more, but certainly no less”.Footnote 11
For Lord Bingham, in the last article he wrote, revisited the theme and provided some clarifications, setting out what on his view was the correct approach to the jurisprudence of the European Court.Footnote 12 As an example he gave JJ.Footnote 13 In this ruling it was Lord Bingham himself who delivered the leading judgment, with which Baroness Hale and Lord Brown agreed. Lord Hoffmann and Lord Carswell, though they shared the approach suggested by the majority to be the correct one to take to the Convention, disagreed with respect to the result.
JJ bore on deprivation of liberty under art. 5 of the Convention. Close attention was paid in the House of Lords to Guzzardi v Italy, found to be the most pertinent discussion of what in terms of the Convention was meant by deprivation of liberty.Footnote 14 The facts in Guzzardi, in which the applicant's confinement on a Mediterranean island bore little resemblance to the situation of JJ, could not readily be transposed to the case before the House of Lords.Footnote 15 Lord Bingham in his judgment in JJ made clear how the courts must approach a problem of this kind, in a case where the European Court has not had occasion to rule on any case at all closely comparable to the present one. In this type of case, said Lord Bingham,
[i]t is inappropriate to seek to align this case with the least dissimilar of the reported cases. The task of the English courts is to seek to give fair effect, on the facts of this case, to the principles which the Strasbourg court has laid down.Footnote 16
All their Lordships, including Lord Hoffman and Lord Carswell, seemed to agree on the approach to be taken to the Strasbourg jurisprudence: the courts must focus on the principles laid down by the European Court; the point is explicitly not to align the present case with the least dissimilar European authorities. On Lord Hoffmann's view the rationale behind going through the Strasbourg authorities was to find not an identical case but “illustrations of the principle” to be applied;Footnote 17 Lord Carswell said that the focus must be “on the principles to be followed”.Footnote 18
While Lord Bingham in JJ did not himself cite, and thus explicitly disavow, his own Ullah dictum, the contrast is a significant one between, on the one hand, his insistence on finding the broader Strasbourg principles and, on the other hand, the way in which the Ullah rule has been relied upon in later cases. The problem with which the House was faced in JJ, one of the very last in which Lord Bingham sat, he explicated, in the very last article he had occasion to write, was nothing else than “to ascertain the true governing principle and apply it”.Footnote 19 The present article argues that this principled approach, which is arguably what follows from Ullah, rather than the way in which Ullah has been understood, is the correct way of approaching the Strasbourg jurisprudence.
II. Lord Kerr's Suggested Approach in Ambrose
The Supreme Court in Ambrose had occasion to apply this principled approach, but decided not to.Footnote 20 The issue in Ambrose was whether the right to a fair trial was breached if the suspect had been questioned by police before being taken into custody. Lord Hope said, on behalf of the majority, that a ruling by the Supreme Court to the effect that there was such a rule would have far-reaching consequences; therefore “if Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so”.Footnote 21 Basing himself on Lord Bingham's Ullah dictum, he concluded that the task of the Supreme Court was to “identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue”.Footnote 22 The same was the case in Jude Footnote 23 and McGowan.Footnote 24
Goodhart, in commenting upon the traditional English doctrine of precedent, once remarked that it was hardly surprising that the complaint was traditionally frequently heard that “the dead hand of the past lies heavy on English law”.Footnote 25 This is one possible outcome of a strict doctrine of precedence. Much in this way Lord Bingham's approach has now become mortmain; it presently acts as an inhibitor on the courts of this country giving full effect to Convention rights.
Lord Kerr in his dissenting judgment, however, proffered a better solution. Some judges in the United Kingdom, he stated, have evinced what he termed “Ullah-type reticence”:
On the basis of this, it is not only considered wrong to attempt to anticipate developments at the supra national level of the Strasbourg court, but there is also the view that we should not go where Strasbourg has not yet gone.Footnote 26
He went on to highlight Lord Bingham's fear that a refusal to follow the jurisprudence of the European Court would “dilute or weaken the effect of the Strasbourg case law”,Footnote 27 and then set out what was perhaps the crux of his argument with regard to the Ullah rule:
I greatly doubt that Lord Bingham contemplated – much less intended – that his discussion of this issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they have been pronounced upon by Strasbourg.Footnote 28
If seen on the background of what Lord Bingham said subsequent to Ullah, Lord Kerr's words here seem very apposite indeed. In the absence of a ruling by the European Court as to the validity of a claim to a Convention right, continued Lord Kerr, it ought not to be “open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken”.Footnote 29 His main point in this regard was that not all debates about the ambit of Convention rights would be resolved by the European Court; many claims to Convention rights will inevitably fall to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from the European Court.Footnote 30
Lord Kerr, on the back of the reasons cited above, concluded that it would be particularly unsatisfactory if because of what he had termed Ullah-type reticence the Supreme Court should feel constrained not to reach a decision on the arguments advanced by the respondents just because those arguments were likely to be presented in a case presently before the European Court and one could not at the time say how the Court would react to them.Footnote 31 If, he concluded,
the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.Footnote 32
Lord Kerr's judgment in Ambrose is of a feather with Lord Bingham's enjoinment to the courts to give fair effect to the principles which the Strasbourg Court has laid down.Footnote 33 Lord Hope's judgment, and those of the other Justices in the majority, save for Lord Dyson,Footnote 34 conversely, are ones which seem to “seek to align this case with the least dissimilar of the reported cases”.Footnote 35 There exist cogent reasons as to why the courts ought to adopt Lord Kerr's approach. The reasons he gives for his approach have received support in the literature, for example from Craig, who sees Lord Kerr's approach to the Strasbourg jurisprudence as preferable to strict adherence to the “no more, no less” principle.Footnote 36 In addition to the reasons which Lord Kerr set out himself comes the following one: the fact that the principled approach which he recommends seems to be more in line with an important tenet of the approach of the common law to judicial authority.
III. The Tradition of the Common Law: Judicial Authority and Principle
While the notion of binding precedent may be the distinctive feature of the common law system, it is also a well-known rule in the common law that judicial authority belongs to the principle on which rulings are based: “the only part of a previous case which is binding is the ratio decidendi”.Footnote 37 To some extent this latter point counteracts the tendency of the UK courts to get fixated on single authoritative decisions, and it is all the more important for it. This received its perhaps classical formulation by Sir Frederick Pollock who said that in the common law:
Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.Footnote 38
Efforts to bind in fetters of verbal definition the common law have, he continued, been “constantly and for the most part happily frustrated by the reconsideration and restatement of guiding principles in the judgment of the highest courts”.Footnote 39 In State of Norway's Application the House of Lords brought out this tenet of the approach of the common law to judicial authority: “The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent”.Footnote 40 The tradition in English law is thus that principles are derived from observing the development of a line of particular authorities on a particular topic; the courts draw upon the underlying principles animating those earlier authorities.Footnote 41 It may be that the UK courts ought to go further in applying this also when it comes to Strasbourg jurisprudence.
It is interesting to compare this situation with the approach taken by the Continental courts. While in German law there is not in strict terms a doctrine of stare decisis, precedents carry substantial weight.Footnote 42 German courts will follow series of decisions which are substantially to the same effect (ständige Rechtssprechung).Footnote 43 The same is the case in French law, where the acceptability of decisions is not to be assessed in relation to individual decisions but to la jurisprudence constante.Footnote 44 French judges, both in the Conseil d'État and in the Cour de Cassation, are fully aware that they are laying down generally applicable rulings.Footnote 45 When French courts decide ordinary cases they simply apply established principles to the large body of relatively unproblematic, routine appeals of which French courts receive an abundance. In deciding such cases, arrêts d'espèce, the courts rely upon la jurisprudence constante. It is, as Bell and Boyron have put it, through the application of that jurisprudence constante that the full force of judicial law-making in the French courts is seen,Footnote 46 and it does not seem unreasonable to say that the same is the case in German law. “As was true of Roman law”, in Goodhart's words, “so in modern Continental law the emphasis is not on the individual case in particular, but rather on a series or group of cases creating a practice”.Footnote 47
One German commentator said of the English theory of precedent, in 1931, that through it “wird der Konservatismus des Rechts künstlich gesteigert und seine Evolutionsfähigkeit gelähmt”.Footnote 48 If it is true that aspects of the traditional English theory of precedent in this way, to some extent at any rate, artificially increases the conservatism of the law, and stymies its ability to evolve, then it might certainly be asked whether that is what has given us the unfortunate situation where the UK courts get fixated on single authoritative Strasbourg decisions instead of looking for the underlying principles. For the fact of the matter is that the Continental courts have not been hampered in their approach to the Strasbourg jurisprudence by “Ullah-style reticence” such as we find it in Ambrose.
Given the exigencies of space the example of the Conseil d'État will have to suffice in order to exemplify this point. In Association pour la promotion de l'image the principled approach of the Conseil d'État to the Convention rights was on full display.Footnote 49 The Conseil was asked whether a decree regulating the use of and storage of data from biometric passports was lawful. One of the stipulations of the decree was that eight fingerprints were stored by the authorities, while only two were needed for the passport. The Conseil d'État, basing itself on Convention principle as well as legal precepts flowing from national law, held parts of the decree to be unlawful.Footnote 50 Whether the storage or personal information retained by the authorities would constitute a breach of art. 8 would depend upon the context in which the information at issue has been recorded and retained, the nature of the records, the way in which they are used and processed, as well as the results which may be obtained.Footnote 51 It is plain from the conclusions of rapporteur public Julien Boucher that there was no single authoritative decision from the European Court which directly settled the matter. This, however, did not deter him, and the Conseil d'État which adopted his conclusions, from simply applying the principles animating art. 8 and art. 2 of protocol 4 of the Convention. Such examples abound in the jurisprudence of the Conseil d'État. Perhaps the field where this has been the most striking is that of prisoners' rights.Footnote 52 In Boussouar and Planchenault the Conseil d'État followed commissaire du gouvernement Mattias Guyomar, who in relation especially to art. 13 of the Convention had urged the Conseil to build upon the principles on which the jurisprudence of the European Court was founded, thus “giving full effect before national authorities to Convention rights”.Footnote 53 Sudre has called this approach an “attitude décomplexée”.Footnote 54 It is such an approach to the Strasbourg jurisprudence, one which is shorn of complexes with regard to precedent, that the UK courts too ought to adopt.
IV. Conclusion
Though the majority approach in Ambrose is dressed up as the logical continuation of what Lord Bingham ruled in Ullah, it is not clear that the approach actually merits such association. A close reading of Ullah in fact, and ironically, suggests that Ullah itself would not have passed the “Ullah test”.Footnote 55
The principled approach suggested by Lord Kerr in Ambrose is in tune with what Lord Bingham and a unanimous House of Lords held in Ullah. It is more in line moreover with the general approach of the common law to legal precedent, which for more than a hundred years has been that the courts in reaching their decision in each case draw upon the principles established in earlier authorities.
It bears mention at this point that it is plain enough that there may be times when finding out what is the underlying ECHR principle, and what is the conclusion to be extracted from it in the case before the court, will prove be very difficult indeed. This point does, however, apply with equal force with respect also to the practice of finding out what is the principle on which a common law judgment is based. This is in other words both a problem intrinsic to the business of judging generally and it is, moreover, a problem the grappling with which common law judges are no less qualified than judges of other jurisdictions.
The Supreme Court in Rabone,Footnote 56 which bore on the operational obligation under art. 2 of the Convention in cases of voluntarily institutionalised mentally ill patients who commit suicide, seems to have applied something closely akin to a principled approach.Footnote 57 Interestingly Lord Brown pointed out that it may be said that in finding in Rabone a violation of the art. 2 duty on a state in certain circumstances to take “preventative operational measures” the Supreme Court was “going further than the evolving jurisprudence of the [European Court] has yet clearly established to be required”.Footnote 58 For it was, he continued, plain that no Strasbourg decision had, at that time, equated the position of voluntary patients with that of detained patients with regard to the art. 2 duty. Even if that were the case he would not see the Supreme Court's ruling in Rabone to be offending against the familiar principle first set out by Lord Bingham in Ullah. Lord Brown concluded on this point by saying that if a domestic court is
content (perhaps even ready and willing) to decide a Convention challenge against a public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then in my judgment it should take that further step.Footnote 59
The Supreme Court could take heart from the fact that, as Andenas has pointed out,Footnote 60 the European Court, subsequent to Rabone's having been handed down, came to the same conclusion, expressly referring to and relying upon the approach taken in Rabone.Footnote 61
The approach of the Supreme Court is, in other words, to some extent evolving, and this incremental development is to be welcomed. In Sugar v BBC Lord Wilson, in a discussion of the Ullah principle, made clear that he would welcome an appeal “in which it was appropriate for this court to consider whether, of course without acting extravagantly, it might now be useful to do more than to shadow the ECtHR in the manner hitherto suggested”.Footnote 62 The dogmatic formula that now, most prominently in Ambrose, parades as the Ullah principle is not in line with the approach Lord Bingham actually had in mind, according to which the task of the national court is to give fair effect, on the facts of the case of which it is seized, “to the principles which the Strasbourg court has laid down”.Footnote 63 The principled approach is preferable to strict adherence to the mortmain into which the Ullah principle has been turned; it also coheres better with the best elements of common law tradition.Footnote 64 Judicial authority, under the ECHR as well as at common law, belongs to principles. National courts, in ascertaining the ECHR as expounded by the European Court, must stand back from the at times overwhelming case law of the European Court, or else they may end up not seeing the principles for the case law. In a fashion, therefore, applying the principled approach will mean standing back all the better to be able to advance: reculer pour mieux sauter.
