I. INTRODUCTION
In recent years there has been considerable discussion of the ‘dialogue’ that takes place between courts. This includes that which takes place between the national courts of different countries and the dialogue between national courts and supranational courts.Footnote 1 Included in this trend has also been utilization of the metaphor of dialogue to describe interactions between United Kingdom (UK) courts and the European Court of Human Rights (ECtHR). For example, in 2006, the Department for Constitutional Affairs observed that the Human Rights Act 1998 (HRA) had led to a ‘positive dialogue’ between UK judges and judges at the ECtHR.Footnote 2 In a recent judgment, the Supreme Court stated that it was not bound to follow every decision of the ECtHR as ‘[n]ot only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law’.Footnote 3 Enthusiasm for dialogue has also been expressed extrajudicially by both UK judges and judges of the ECtHR.Footnote 4 In 2010 Lady Justice Arden, a judge of the Court of Appeal, called for much more dialogue between these courts, in order to give ‘both the national and supranational court the chance to think again’.Footnote 5
Whilst the dialogue, assumed to take place between UK courts and the ECtHR, is now a common topic, there has been little detailed analysis of what really happens when these two courts interact. Although much has been written about the HRA and dialogue, this has almost exclusively concerned the domestic inter-institutional dialogue between the legislature, executive and judiciary.Footnote 6 The purpose of this article is to examine in detail the relationship between UK courts and the ECtHR, and consider a number of questions. First, what is meant exactly by the metaphor of dialogue between a national and supranational court? Second, what scope is there for dialogue to take place between UK courts and the ECtHR, and does it actually happen in practice? Third, what impact does a dialogue over human rights between UK courts and the ECtHR have in theory, and in practice? Is it simply limited to norm creation? Or can it confer legitimacy on the ECHR and the HRA and increase the power of the judiciary? And finally, is it important for dialogue between these courts to expand and continue?
II. DEFINING ‘DIALOGUE’
In the Oxford English Dictionary, dialogue is defined, amongst other things, as a ‘conversation’ and ‘a discussion, especially one between representatives of two political groups’.Footnote 7 However, those who have utilized the metaphor of dialogue to describe the relations between national and supranational courts obviously assume something more than a mere conversation or discussion. Academic commentators in the field have drawn distinctions between monologues, conversations and dialogues. Slaughter has defined a monologue in this context as ‘a court whose ideas or conclusions are borrowed by foreign courts, whether on the national or supranational level’. However, it is ‘not a self-conscious participant in an ongoing conversation’.Footnote 8 Tremblay, in the context of domestic inter-institutional dialogue, has stated that a conversation takes place when ‘two institutions disagreeing over the proper constitutional balance, exchange words, ideas, opinions, judgments, and experiences within a space of intersubjective meanings and institutional settings but without a specific commitment to reach practical mutual agreement’.Footnote 9
With respect to the meaning of dialogue in the context of relations between national and supranational courts, there are a variety of definitions. Slaughter has defined ‘direct dialogue’ as ‘communication between two courts that is effectively initiated by one and responded to by the other’ and accompanied by an ‘awareness on the part of both participants of whom they are talking to and a corresponding willingness to take account of the response’.Footnote 10 Faracik has referred to the concept of ‘constructive dialogue’ defined as ‘an exchange of thoughts on [a] specific topic and … based on openness of the arguments of the partner and readiness to provide all necessary information or advice requested’. It also includes ‘readiness to admit that the other party may be right on some issues as well as to consider positively proposals aimed at improving human rights observance’.Footnote 11 Tremblay has given the most detailed consideration to the meaning of dialogue although it is important to note that his work is in the context of the inter-institutional dialogue which takes place between the courts, legislature and executive about the Canadian Charter of Rights and Freedoms. Nevertheless, it does translate well to this context. In his view, dialogue in its strongest sense is dialogue as deliberation. This ‘has specific mutual practical purposes: it aims at taking decisions in common; reaching agreement; solving problems or conflicts collectively; determining together which opinion or thesis is true, the most justified or the best; or which particular practical view should govern actions or decisions’.Footnote 12 Furthermore, in his opinion, dialogue as deliberation can only operate in certain conditions:
First, each participant must recognize the other as an equal partner … no hierarchy must confer in advance on one or more of the participants the authority to settle disagreements. Second, a dialogue as deliberation must be a process of rational persuasion, not a form of coercion … each participant must be willing to expose their views to the critical analysis of the others and must be ready to change them if others put forth better arguments … Third, a dialogue as deliberation must aim at producing some practical judgment, action, or decision that can be the object of reasoned agreements among the participants … They must take into account each other's perspective and try to incorporate them into their own views … any outcome must be the result of free and reasoned agreement (or disagreement) among the participants recognized as equal partners.Footnote 13
III. THE SCOPE FOR DIALOGUE BETWEEN UK COURTS AND THE ECTHR
A. From the Perspective of the ECtHR
Considering the definitions of dialogue provided above, and applying these to the current relationship between UK courts and the ECtHR, it is clear that at least in theory, there is scope for some dialogue to take place. The ECtHR is clearly open to the possibility of dialogue with national courts. This wish is expressed via its judgments through the principle of subsidiarity, its application of the margin of appreciation, and a new vigorous approach to the interpretation and application of Article 13, the right to an effective remedy. It is also frequently expressed extrajudicially. In 2010 Jean-Paul Costa, President of the ECtHR, stated that it was essential that ‘domestic judicial authorities assume ownership of the Convention; that there should be, so to speak, a distribution of responsibilities in the field of human-rights protection between the national authorities and the Court’.Footnote 14 At the same proceedings, Françoise Tulkens, a judge of the ECtHR, observed that whilst remaining the final arbiter ‘the Court can and must enrich its own scrutiny by reflecting on national decisions in which Convention law is analysed.’Footnote 15
The ECtHR's openness to dialogue is also a strong part of its jurisprudence. When determining the interpretation and application of Convention rights, its subsidiary role has been expressed in a variety of ways. It has held on a number of occasions that the machinery of protection established by the Convention ‘is subsidiary to the national systems safeguarding human rights’ and that it was concerned with ‘the supervision of the implementation by Contracting States of their obligations under the Convention’.Footnote 16 It does not wish to act as a court of ‘fourth instance by calling into question the outcome of domestic proceedings’ as the ‘domestic courts are best placed to interpret and apply rules of substantive and procedural law.’Footnote 17 Recently it stated as follows:
The Court is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries.Footnote 18
For example, in A v UK,Footnote 19 when considering if the UK derogation from Article 5 to allow indefinite detention of terrorist suspects without charge, met the requirements of Article 15, the ECtHR stated that it should ‘in principle follow the judgment of the House of Lords on the question of the proportionality of the applicants’ detention, unless it can be shown that the national court misinterpreted the Convention or the Court's case law or reached a conclusion which was manifestly unreasonable’.Footnote 20
The ECtHR's application of the margin of appreciation also illustrates the importance afforded by the Court to the national courts' consideration of Convention rights issues.
[T]he margin of appreciation has many times acted as a vehicle of judicial restraint, limiting the spectrum of the ECHR's interference in certain matters to an ‘external’ review of the compatibility of domestic acts with the Convention … a State party to the Convention has a wider margin of appreciation to construe its obligations under it whenever there is no established European consensus delimiting a right protected.Footnote 21
This has also had an impact on applications brought against the UK. For example, in MGN Ltd v UK,Footnote 22 which concerned a challenge to conditional fee arrangements, the ECtHR stated that having regard ‘to the margin of appreciation accorded to decisions of national courts in this context’ it would require ‘strong reasons to substitute its view for that of the final decision of the House of Lords or … prefer the decision of the minority to the majority’.Footnote 23
Finally, the importance attached by the ECtHR to prior national judicial consideration of Convention rights issues is also demonstrated by its new preparedness to uphold applications made under Article 13, the right to an effective remedy, where there is no remedy ‘at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief’.Footnote 24 This has also impacted on the UK and a violation of Article 13 was found in Al-Saadoon v UK Footnote 25 as the UK government had transferred the applicants to Iraq following the judgment of the Court of Appeal, without waiting for their request for leave to appeal to the House of Lords to be determined.
B. From the Perspective of UK Courts
From the perspective of UK courts there is also, at least in theory, scope for dialogue. The HRA has been designed essentially to mirror the treatment a claimant would receive before the ECtHR, its purpose ‘to make more directly accessible the rights which the British people already enjoy under the Convention’ ‘in short’ to ‘bring those rights home’.Footnote 26 UK courts have the power to determine whether or not the activities of public authorities are compatible with the articles of the ECHR to which the HRA gives further effect in domestic law.Footnote 27 The exact wording of each Convention right is utilized in the HRA and UK courts are also instructed by section 2 of the HRA to ‘take into account’ relevant ECtHR jurisprudence when determining a Convention rights issue. There is no other comprehensive legal protection for human rights in the UK such as a bill of rights, so essentially almost all human rights claims at the national level come via the HRA route.
In common with other Contracting States, despite the presence of human rights law at the domestic level, the UK has remained a part of the ECHR system of supervision, and an applicant who has exhausted domestic remedies, including all possible claims under the HRAFootnote 28, within six months of the final domestic decision, may lodge an application with the ECtHR.Footnote 29 Only unsuccessful claimants before the UK courts have victim status before the ECtHR. Where a UK court has found a violation of Convention rights, either expressly or in substance, and afforded redress, the applicant is precluded from bringing an application to the ECtHR as it considers that he or she has lost status as a victim within the meaning of Article 34. This does not include those who have received a declaration of incompatibility from a UK court as this is not considered by the ECtHR to be an effective remedy.Footnote 30 There is no shortage of applications brought to the ECtHR against the UK and in 2010, 2,766 applications were allocated to a judicial formation, the highest number ever recorded against the UK.Footnote 31 Now, in almost all new applications, the ECtHR is considering the same issues of fact and law which have already been considered by UK courts. Once the application is lodged, the admissibility stage before the ECtHR is the first point at which an interaction between UK courts and a Chamber of the ECtHR can occur although there is also scope for interaction later on if the application is declared admissible and passed on to another Chamber for the merits to be determined.
C. The Appropriateness of the Metaphor of Dialogue
Whilst theoretically the possibility is there, in practice fitting the interaction between the national courts and the ECtHR into the metaphor of dialogue, as defined above, is not straightforward and there are a number of difficulties. First is the problem of delay. When an interpretation and application of Convention rights is put forward by a UK court, and then an application made to the ECtHR by an unsuccessful claimant, it may take the ECtHR more than five years to give its response. One example is the litigation which has taken place domestically and before the ECtHR over the indefinite retention of fingerprints, DNA samples and profiles by police. The first UK court judgment, finding the practice compatible with Convention rights, was delivered on 22 March 2002.Footnote 32 The Court of Appeal dismissed the appeal on 12 September 2002Footnote 33 and the House of Lords dismissed the appeal from that judgment on 22 July 2004.Footnote 34 The ECtHR declared the application admissible on 16 January 2007Footnote 35 and the Grand Chamber of the ECtHR gave its judgment, unanimously finding a violation of Article 8 of the ECHR, on 4 December 2008, almost seven years since the first UK court judgment. This was subsequently followed by the Supreme Court, on 18 May 2011, more than nine years after the first UK court judgment, adopting the ECtHR decision and overturning the earlier decision of the House of Lords.Footnote 36 If utilization of the metaphor of dialogue requires a swift exchange of views, this is definitely not what happens in practice. The delay in the system has also meant that it is only in the past few years that there are regular examples of an exchange of views between UK courts and the ECtHR. In fact, the ECtHR is still considering applications concerning events which predate the coming into force of the HRA.Footnote 37
Secondly, due to the nature of the HRA, sometimes it is not possible for UK courts to have the opportunity to consider the application and interpretation of Convention rights before an application is determined by the ECtHR. It might be that the claim is simply not possible under domestic law or that the applicant's inability to bring domestic proceedings forms the basis of the complaint to the ECtHR.Footnote 38 For example, in Mosley v UK Footnote 39 the applicant complained that the UK had violated its positive obligation under Article 8, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. This was not a claim which would have been possible under the HRA as section 6(6) specifically provides that an ‘act’ includes a failure to act but does not include a failure to legislate.Footnote 40 A further problem is caused by the fact that the ECtHR does not regard the declaration of incompatibility, available pursuant to section 4 of the HRA, as an effective remedy which must be sought by an applicant prior to bringing an application. Applicants seeking only a declaration of incompatibility therefore do not need to bring proceedings under the HRA, and UK courts are deprived of the opportunity for dialogue with the ECtHR in such instances. A recent example is Kennedy v United Kingdom Footnote 41 where the applicant complained that his communications were being unlawfully intercepted and that the regime established under the Regulation of Investigatory Powers Act 2000 (RIPA) did not comply with Article 8. He had not sought a ruling from the UK Investigatory Powers Tribunal (IPT) on this compatibility so the government argued before the ECtHR that he had not exhausted domestic remedies. The ECtHR responded as follows:
… it is in principle appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention in order that the Court can have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries … However, it is important to note in this case that the applicant's challenge to the RIPA provisions is a challenge to primary legislation. If the applicant had made a general complaint to the IPT, and if that complaint had been upheld, the tribunal did not have the power to annul any of the RIPA provisions or to find any interception arising under RIPA to be unlawful as a result of the incompatibility of the provisions themselves with the Convention … the practice of giving effect to the national courts' declarations of incompatibility by amendment of offending legislation is not yet sufficiently certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation giving rise to a remedy which an applicant is required to exhaust.Footnote 42
When considering the appropriateness of the metaphor of dialogue, it is also important to take into account the fact that in the majority of HRA claims, UK courts are content to simply accept Convention jurisprudence and apply it domestically. Although, as noted above, section 2 of the HRA only requires UK courts to take this jurisprudence into account where relevant, and the House of Lords has held that these decisions are not ‘directly binding as a matter of our domestic law on the courts’,Footnote 43 the House of Lords has also held that absent a ‘strong reason’, they regard themselves as bound.Footnote 44 Recently the Supreme Court confirmed that where ‘there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.’Footnote 45 This is the position even if it requires the Supreme Court to depart from previous UK authority.
Where, utilizing the jurisprudence of the ECtHR, a UK court finds against a claimant, and this claimant eventually makes an application to the ECtHR, the usual outcome is that the Chamber of the ECtHR, referring to the reasoning of the UK court, finds the application inadmissible as manifestly ill-founded. The courts are in agreement on the law, this is a matter of consensus and there is no issue over which they disagree and need to have an exchange of views. A recent example is PF and EF v United Kingdom Footnote 46 which concerned the policing of disorder on the Ardoyne Road in North Belfast, in particular, the confrontation of parents bringing their children to school. The claim had already been considered by the domestic courts, up to and including the House of Lords.Footnote 47 The ECtHR agreed with the conclusion of the House of Lords that the actions of the loyalist protestors reached the minimum level of severity required to fall within the scope of Article 3.Footnote 48 It then reached the same conclusion as the House of Lords that the police took all reasonable steps to prevent ill-treatment and found no admissible claim under Articles 3, 8 or 14 although it referred mainly to its own case law in reaching this conclusion. The interaction between UK courts and the ECtHR in such instances is an example of dialogue in that UK courts have considered Strasbourg jurisprudence and applied it thereby indicating their approval and agreement. However, it is not dialogue in its strongest form, or dialogue as deliberation, as defined by Tremblay. UK courts often accept the view of the ECtHR not because they have been persuaded by its reasoning but because they consider themselves bound by its decisions. On some occasions there are express indications that they would have preferred to have decided otherwise.Footnote 49 As Tremblay has observed, dialogue in its strongest sense cannot really take place where hierarchy has conferred in advance ‘on one or more of the participants the authority to settle disagreements.’Footnote 50 Although the ECtHR in these instances might eventually affirm the position of the UK courts, there is no exchange of opposing thoughts, both courts are already in agreement and there is no need to reach a new agreement or to solve a particular problem.
D. Possibilities for Dialogue as Deliberation
Although in practice the majority of HRA claims are determined via the application of the clear and constant jurisprudence of the ECtHR, it cannot be simply concluded that there is therefore no strong form of dialogue between these courts, but it is not as widespread as might be thought. From the case law, particularly that of the highest courts, it is possible to identify three ways by which UK courts end up in a deliberative dialogue with the ECtHR. First, it might be that the UK court considers that a key and determinative judgment of the ECtHR is wrong. This possibility was foreshadowed early on in the case of R v Lyons Footnote 51 where Lord Hoffmann stated that if an English court considered that the ECtHR had misunderstood or been misinformed about some aspect of English law, ‘it may wish to give a judgment which invites the European Court to reconsider the question. … There is room for dialogue on such matters.’Footnote 52
Usually this is an expression of opinion which only the higher courts feel they can venture and the few examples which exist are all judgments of the Privy Council, House of Lords or Supreme Court and almost all concern the interpretation and application of Article 6. For example, in Brown Footnote 53 the Privy Council concluded that the leading of evidence obtained by the prosecution under section 172(2)(a) of the Road Traffic Act 1988 was not in breach of Article 6 despite the judgment of the ECtHR in Saunders.Footnote 54 The reasoning of the ECtHR was described as ‘unsatisfactory’, ‘unconvincing’, and a ‘more absolute standard than the other jurisprudence of the court indicates’.Footnote 55 Four years later in O'Halloran v UK Footnote 56 the ECtHR gave its perspective and agreed with the reasoning of Lord Bingham in Brown and also distinguished Saunders. More recently in R. v Horncastle Footnote 57 the appellants argued that they did not receive a fair trial, contrary to Article 6 of the ECHR, as in their trial, there was placed before the jury the statement of a witness who was not called to give evidence. They relied upon a line of Strasbourg cases, culminating in the decision of the ECtHR in the cases of Al-Khawaja and Tahery v United Kingdom.Footnote 58 The Supreme Court stated that whilst the Court would normally apply principles clearly established by the ECtHR:
[t]here will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.Footnote 59
The second route to dialogue, which is even rarer in practice, is utilized where it is thought that the subject matter of the claim might engage the UK's margin of appreciation before the ECtHR. The possibility was first referred to by Lord Bingham in 2006 when he noted that the ECtHR ‘accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case’.Footnote 60 Therefore, in his opinion, it was for ‘national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions’.Footnote 61 Doubt was cast on his position by the House of Lords in a judgment shortly afterwards where the question was whether or not a same sex couple could constitute a family within the meaning of Article 8. Lord Nicholls stated that he was not persuaded that a State's margin of appreciation gave the domestic courts the freedom to decide how they wished.Footnote 62 However, in a far clearer judgment in 2008, the existence of the exception was affirmed and applied. In the case of In re P Footnote 63 the question before the House of Lords was whether or not it was compatible with Articles 8 and 14 for a couple to be excluded from consideration as the adoptive parents of a child on the ground only that they were not married to each other. Having considered ECHR jurisprudence, Lord Hoffmann stated that the House of Lords might be going further than the ECtHR had previously gone if it were to find a violation of Article 14.Footnote 64 However, he went on to state that this should make no difference to their conclusion as this question was within the national margin of appreciation and was ‘one for the national authorities to decide for themselves’ so it was possible that ‘different Member States may well give different answers.’Footnote 65 In his Lordship's view, where the question was within the margin of appreciation ‘it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom.’Footnote 66
In these two exceptions to the principle of strict adherence to Strasbourg jurisprudence, UK courts are expressly seeking a dialogue with the ECtHR and it is open to the ECtHR to give its view on the position adopted either in proceedings brought by an unsuccessful claimant or in unrelated proceedings. There is also a third route by which UK courts end up in a dialogue with the ECtHR which is primarily as a result of the nature of Strasbourg jurisprudence itself. It is often observed, by UK courts and others, that the case law lacks ‘clarity’,Footnote 67 that it is not ‘entirely convincing’Footnote 68 and that the ‘judgments and decisions of the European Court do not speak with one voice’.Footnote 69 It is not uncommon for the Court of Appeal and the House of Lords to reach opposing views as to the meaning of a particular vein of ECtHR case lawFootnote 70 and sometimes a different interpretation may be arrived at by different members of the same court.Footnote 71 In order to decide the case before it, a UK court will adopt a particular interpretation of what can often be fairly confusing and contradictory jurisprudence. Sometimes it will state that it is not entirely sure, and thereby expressly seek eventual confirmation from the ECtHR. But more commonly this affirmation will not be expressly sought, the UK court being confident in its interpretation and application of ECHR jurisprudence. Nevertheless, should it have found against a claimant and this claimant makes an application to the ECtHR, a dialogue does open up with the ECtHR which will consider the application of its case law by the UK court, and whether or not it has been accurate.
As a dialogue has not been expressly sought, fitting this exchange into the definitions of dialogue provided above is not straightforward. This is a dialogue that has been implicitly sought, the UK court not entirely sure whether it has got the interpretation and application of Convention jurisprudence right. It often results in the ECtHR eventually giving its perspective and this being adopted by the UK courts but in order for it to be included in examples of dialogue, it is necessary to disregard the requirement that dialogue be expressly sought by the UK court and assume that as it has been articulated that the area of Convention jurisprudence is not settled, the court really does expect the ECtHR to eventually respond. Often the courts come very close to stating this wish. For example, in McCaughey Footnote 72 Lord Phillips stated that he was not alone in ‘having difficulty in identifying the precise circumstances in which the procedural obligation attaches’ from his reading of the Grand Chamber's judgment in Šilih v Slovenia.Footnote 73 Lord Hope observed that only the ‘most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered … as clear.’Footnote 74 But, it is also understandable that for reasons of legal certainty, it is not often stated that the court is not really sure that it got the Convention jurisprudence right and would appreciate the perspective of the ECtHR. For example, in McCaughey Lord Hope was careful to note that he did not think the court needed any further guidance on the matter from Strasbourg.Footnote 75
Almost all of the examples to date of real deliberative dialogue between the UK courts and the ECtHR have started in this way. Often the interpretation and application of complex Strasbourg jurisprudence goes well for the UK court. An example is Carson v United Kingdom Footnote 76 which concerned the difficult legal argument that the failure to up-rate the pensions of certain UK pensioners living abroad, was in violation of Article 1 of Protocol No 1 in conjunction with Article 14. The Grand Chamber of the ECtHR agreed with the assessment of the majority of the House of Lords stating ‘in common with the national courts and the Chamber, the Grand Chamber considers that the applicants’ argument misconceives the relationship between National Insurance contributions and the State pension.’Footnote 77 It also quoted from the judgment of Lord Hoffmann and the judgment of the Court of Appeal.Footnote 78
On other occasions it does not go so well. An example is Marper Footnote 79 where the claimants argued that retention by police of their fingerprints, cellular samples and DNA profiles was incompatible with Article 8 of the ECHR. With little conclusive case law from the ECtHR, a majority of the House of Lords held that the retention did not constitute an interference with the claimants' Article 8 rights, and unanimously held that any interference was justified under Article 8(2). The ECtHR gave its judgment in December 2008Footnote 80 and, relying on its own case law and the dissenting judgment of Baroness Hale in the House of Lords, concluded that there was an interference with private life.Footnote 81 In considering the question of justification, it did not refer to domestic authority at all and afforded a narrow margin of appreciation observing that ‘the intrinsically private character of this information calls for the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned.’Footnote 82 Not looking to the judgment of the House of Lords, but to the relevant instruments of the Council of Europe, the law and practice of other Contracting States, and practice in Scotland, it was ‘struck by the blanket and indiscriminate nature of the power of retention in England and Wales’Footnote 83 and found a violation of Article 8 concluding that the UK had overstepped any acceptable margin of appreciation.Footnote 84 The issue returned to the Supreme Court in May 2011 where it was common ground between the parties that in the light of the judgment of the ECtHR, indefinite retention was an interference with private life as protected by Article 8 which, for reasons given by the ECtHR, was not justified under Article 8(2) and that the judgment of the House of Lords could not stand.Footnote 85 A majority of the Supreme Court concluded that it was possible to read and give effect to the empowering primary legislation in a way which was compatible with the ECHR.Footnote 86
This type of claim is increasing before the higher courts as the areas of domestic law not compatible with Convention law narrow and increasingly UK courts are putting their own interpretations upon difficult areas of Convention jurisprudence. For example, in Home Office v Tariq Footnote 87 the Supreme Court dealt with a difficult issue concerning the interpretation of Article 6 and, having reviewed relevant ECtHR case law, determined that ‘the demands of national security may necessitate and under European Convention law justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined.’Footnote 88 Therefore, it concluded that the use of a statutory closed material procedure before the Employment Tribunal was lawful. It is almost certain that whilst it did not explicitly seek a dialogue with the ECtHR on this particular issue, a dialogue will result with the ECtHR eventually giving a further opinion on this difficult and developing area of law. This is made even more likely by the fact that Lord Kerr dissented from the opinion of the majority on one issue.Footnote 89 Similarly in Tomlinson Footnote 90 the Supreme Court had to decide whether or not a decision of a local housing authority concerning homelessness was a determination of his or her civil rights within the meaning of Article 6(1). Lord Hope, finding no real guidance from recent ECtHR case law, stated that the ‘time has come for the Court to address this question and take a decision upon it. The present state of uncertainty as to whether the administration of social welfare benefits, such as those which are available to those who are homeless or threatened with homelessness, is unhealthy.’Footnote 91
Returning to the definitions of dialogue set out above, and putting to one side the problem of delay, it can be concluded that in practice there is dialogue in its strongest sense between UK courts and the ECtHR but, contrary to what some might believe, there is not the opportunity for it in every HRA claim. There are those instances where it is expressly sought as the UK court disagrees with ECtHR reasoning, or where it is thought the margin of appreciation is engaged. But there is also scope where a UK court has grappled with a difficult and confusing area of ECHR jurisprudence, regardless of whether or not this is articulated expressly. Increasingly this appears to be the position before the Supreme Court as it deals with ever confusing issues of Convention jurisprudence. These interactions really do constitute communication between two courts, initiated by one, responded to by another with ‘awareness on the part of both participants of whom they are talking to and a corresponding willingness to take account of the response’ as defined by Slaughter. The interaction also fits within Tremblay's definition, in these instances they are trying to reach agreement and determine ‘together which opinion or thesis is true’. The conditions he specifies for dialogue to take place are also met. Unlike instances where Convention jurisprudence is clear and constant and simply applied by a UK court, each participant recognizes the other as an equal partner, it is not a process of coercion and the aim is to reach a common position on the interpretation and application of Convention rights in a particular case.
IV. OUTCOMES FROM DIALOGUE
Considering that there is scope for dialogue between UK courts and the ECtHR on the interpretation and application of Convention rights, and that this dialogue does actually take place in certain circumstances, it is important next to consider the potential and practical outcomes from dialogue, particularly given current interest in dialogue expanding. Commentators have identified three broad areas of impact: norm creation; the legitimacy of international and domestic human rights law; and the power of the judiciary. Each is discussed in the following paragraphs and relevant case law examined to test whether or not the dialogue between UK courts and the ECtHR has actually had an impact in these areas. Also considered is the question of outcomes for the UK before the ECtHR, specifically whether or not better outcomes are produced by consensus which involves simply applying the constant and clear jurisprudence of the ECtHR, or from entering into a dialogue.
A. Norm Creation
Dialogue gives UK courts a voice and a role in norm creation and provides an important check on the power of the ECtHR. Waters has described the role of national courts in norm creation as follows:
Norm export occurs when domestic courts and other domestic law-declaring fora articulate or champion a particular domestic norm at the transnational level. The norm is then picked up by other transnational actors, thus being diffused around the world and becoming part of the international legal discourse. If the norm becomes sufficiently embedded in a large number of other domestic or international legal regimes, it becomes the dominant normative standard on a given issue.Footnote 92
If there is a desire at the national level to maintain national differences, engaging in a dialogue with the ECtHR is imperative. Not having such a voice can result in a situation where the ‘global will overwhelm the local’ and an ‘unelected international elite will subvert elected representatives, with the loss of diversity and decline in democratic decision making’.Footnote 93 There is room for national differences in the creation of European human rights standards and judges have a crucial role in this process given the ‘destiny of the national cultural traditions in Europe is in the first place entrusted to the constitutional courts, which express the voice of the national constitutions’.Footnote 94
One example of the impact of dialogue on norm creation is the making of Convention law on immigration which has an important impact in all Contracting States and is a highly charged political issue. UK courts in at least two cases before the ECtHR have clearly played a role in shaping this jurisprudence. In Z and T v UK Footnote 95 the applicants were Christians from Pakistan who sought to remain in the UK alleging, inter alia, that they would be subject to ill-treatment were they to return, in particular, to violations of Articles 3 and 9. The Secretary of State had refused them asylum and their appeals to Adjudicators and the Immigration Appeal Tribunal had been dismissed in reliance upon the judgment of the House of Lords in Ullah.Footnote 96 This had been a difficult judgment for their Lordships in which the claimants sought to push the boundaries of human rights protection on deportation arguing that articles of the ECHR, in addition to Article 3, could be engaged in relation to the removal of an individual from the UK where the anticipated treatment in the receiving state would be in breach of the ECHR but would not meet the minimum requirements of Article 3. The case was particularly difficult as there was no direct authority from the ECtHR on the question their Lordships were required to answer. As Lord Steyn noted in relation to Articles 9, 10 and 11 ‘[t]he jurisprudence of the ECtHR does not provide much help. On the other hand, the possible engagement of these articles has not been ruled out. I would also not rule out their possible application in the field of immigration decisions.’Footnote 97 Their Lordships unanimously concluded that deportation would only be incompatible with the Convention where it was shown that there would be a flagrant denial or gross violation of the right whereby the right would be completely denied or nullified in the destination country.Footnote 98 Faced with almost the same facts in Z and T, and with no Strasbourg case law directly on point, in determining admissibility the Chamber of the ECtHR adopted a test the same as that established by the House of Lords.Footnote 99 It concluded that there was no danger of flagrant violation on the facts here, and found that the application was manifestly ill-founded.Footnote 100
A further immigration example is N v UK Footnote 101 where the Grand Chamber considered the conclusion of the House of Lords, in reliance upon ECHR jurisprudence that it was only in the most exceptional circumstances, that an applicant suffering an illness could resist deportation on Article 3 grounds. Their Lordships had surveyed relevant Convention jurisprudence, and formulated a test and whilst approval was not explicitly sought from the ECtHR, this was an instance where at least implicitly, dialogue would be expected.Footnote 102 The ECtHR essentially adopted the test formulated by the House of Lords finding that ‘[t]he decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.’Footnote 103
These are positive outcomes for UK courts but it is also important to appreciate that dialogue can have a negative impact on norm creation stemming primarily from the creation of uncertainty about who has the final word. It is clear that ‘foreign law deprives the courts that refer to it of the sense of uniqueness and finality that their rulings must provoke in order to be seen as the last word in our social confrontations.’Footnote 104 It is entirely possible to have the UK's highest court determine a question of the interpretation and application of the ECHR which is resoundingly rejected by the ECtHR five years later. This is compounded by the fact that the ECtHR regards the Convention as a living instrument and ‘over time the Strasbourg Court has extended the ambit of application of the Convention rights in many areas.’Footnote 105
A further problem arises if, despite being accepted by the UK courts, the contrary interpretation of the ECtHR is rejected by the UK government, and/or Parliament. As Krisch has stated, this is not a constitutionalist model ‘in which the order as a whole is subject to a unified set of norms governing the political system … in reference to which disputes about authority are decided.’Footnote 106 In his view, the order emerging is a pluralist one where different norms and actors compete for ultimate authority ‘and since they lack a common legal frame of reference, they compete, to a large extent, through politics rather than legal argument.’Footnote 107 Whilst his observations were limited to relationships between courts or judges, it can also extend to competition between the ECtHR, Parliament, government and domestic courts. When this occurs, considerable uncertainty results for claimants, respondents and the legal system generally.
Uncertainty most frequently arises where dialogue is sought implicitly as the UK court has placed its own interpretation on a confusing and unclear area of Strasbourg jurisprudence. There are a number of examples which illustrate this point including the litigation concerning prisoner voting,Footnote 108 the extra-territorial effect of the HRA,Footnote 109 and the retention of fingerprints, DNA samples and profiles. But particular uncertainty has been created by the litigation concerning the impact of Article 8 on proceedings for possession of someone's home. Since the judgment of the House of Lords in Qazi v London Borough of Harrow Footnote 110 in 2003, UK courts have struggled with this issue prompting the ECtHR in Kay v UK,Footnote 111 the latest judgment on the question, to refer to UK jurisprudence. Here the ECtHR expressly approved the judgment of the minority of the House of Lords in Kay Footnote 112 pointing out that it had already done as much in its previous judgment in McCann v UK.Footnote 113 Clarity was provided by the Supreme Court in Pinnock Footnote 114 where it overruled three earlier decisions of the House of Lords in order to bring UK law in line with Strasbourg jurisprudence. But further consideration by the Supreme Court was required in Powell Footnote 115 where Lord Phillips confirmed that the ECtHR ‘has made it plain that ousting the powers of the court to consider the proportionality of dispossessing a non-secure tenant is not compatible with the procedural requirements of article 8’.Footnote 116 Nevertheless, as one commentator has observed, there is still a mess ‘[y]ou just have to look a little more closely to see it.’Footnote 117
B. Legitimacy
Dialogue between UK courts and the ECtHR also has an impact on the legitimacy of both the judgments of the ECtHR and the HRA judgments of UK courts.Footnote 118 The concept of legitimacy is complex. Put simply, a decision is more likely to be considered legitimate and stands a greater chance of acceptance in the following instances: those affected have had a say in it either directly or via their elected representatives (democratic legitimacy); the decision reflects the shared values of those affected; or the decision has been made by an expert and authoritative person or institution.Footnote 119 Whilst no amount of dialogue between courts can enhance the democratic legitimacy of their judgments, it can have a positive impact on those aspects of legitimacy linked to reflecting shared values and authority/expertise. The general public and their representatives in governments and legislatures are far more likely to consider a judgment of the ECtHR legitimate and acceptable if it is reflective of their values. And a judgment of the ECtHR is much more likely to meet this criterion if it is the result of dialogue with a national court. Even if the judgment is contrary to the conclusion reached by the national court, evidence of having listened is an important legitimating force. As Krisch has observed, ‘[f]rom its inception, the Strasbourg organs were dependent on a positive stance by national authorities; with no enforcement tools at their disposal, compliance had to be essentially voluntary. If the Court and Commission wanted to become influential, they needed to establish, on the one hand, their authority as impartial and trustworthy interpreters of the Convention; on the other, they had to take care not to upset national authorities so much as to provoke a backlash.’Footnote 120 An illustration is the dialogue which has taken place with UK courts over aspects of Convention law which touch upon the national immigration laws of all Contracting States.Footnote 121
Clearly dialogue with the ECtHR can also help judgments given by UK courts under the HRA to be perceived as more legitimate. Again, shared values are relevant and an important legitimating device is the notion that UK courts through dialogue with the ECtHR are giving effect in national law to standards common throughout all 47 contracting states to the ECHR. Furthermore, the authority and expertise of the ECtHR itself adds to legitimacy. If a UK court has engaged in a lengthy deliberative dialogue with the ECtHR over a particular issue, such as the retention of DNA samples and profiles, and eventually accepted the ECtHR's view, the outcome is more legitimate than it might have otherwise been. This is so because the supranational court with final authority to determine the interpretation and application of Convention rights has carefully considered the perspective of the UK courts, but still decided differently. A UK court judgment giving effect to this view is effectively supported by the ECtHR—two courts have given their views on the issue, not just one.
But the relationship between UK courts and the ECtHR can also work in the opposing direction. It is clear that engaging in dialogue can put at risk the legitimacy of the judicial function ‘should it appear that cases are decided with the aim of further institutional interests and wooing other courts, and not in the interests of parties or the law’.Footnote 122 As Waters has observed, ‘courts may lose legitimacy in the eyes of domestic audiences if they appear too eager to internalize conflicting international norms.’Footnote 123 Too little deliberative dialogue between UK courts and the ECtHR puts at risk the legitimacy of HRA judgments and often the HRA itself. Kingsley has stated that ‘[i]f change is perceived as being forced from outside sources and not possessing domestic benefit or legitimacy, the laws are unlikely to be implemented successfully.’Footnote 124
The range of issues where deliberative dialogue has actually taken place between UK courts and the ECtHR is so small, that this prediction has almost come to fruition. Whilst the HRA has not been rejected, or even a failure from the perspective of claimants and potential claimants, its position in UK law is still not secure and it is currently under review by a Commission which is considering the creation of British Bill of Rights.Footnote 125 More deliberative dialogue between UK courts and the ECtHR would secure more legitimacy for the HRA and HRA judgments. Again this is linked to shared values but shared national values rather than values shared with the other contracting states to the ECHR. Where UK courts do not engage in deliberative dialogue and simply accept and apply the jurisprudence of the ECtHR, this may contradict shared national values leading to HRA judgments and the HRA itself losing legitimacy. It is also important to take into consideration the standing of the ECtHR in the UK where it is often portrayed by elements of the media and some politicians as a meddlesome and illegitimate institution.Footnote 126
The experience of the UK is not unique and similar problems arise in other Contracting States to the ECHR. For example in Spain, Krisch has described what happened when the Tribunal Constitucional tied the rights under the Spanish constitution too closely to the jurisprudence of the ECtHR. According to Krisch this provoked an outcry in the scholarly literature and it did not maintain this approach for long. ‘The link between the Spanish constitution and the ECHR. … has thus become weaker, offering significant discretion to the Tribunal Constitucional in deciding when to follow Strasbourg and how … preserving autonomy seems to have taken precedence over fostering close ties with Strasbourg.’Footnote 127 There has been a similar reaction in France where French courts ‘do not merely disagree with Strasbourg on the interpretation of the ECHR but they set autonomous limits and protect a constitutional core from European interference’.Footnote 128
A dialogue where a UK court asserts a margin of appreciation over a particular issue, or argues that ECtHR authority is incorrect, which results in the eventual agreement of the ECtHR, increases the legitimacy of the national judgment and the HRA. UK judges are seen to be asserting shared values in their dialogue with the ECtHR.Footnote 129 However, where dialogue with the ECtHR is implicitly sought by a UK court, as the area of Convention jurisprudence is unclear, the position is different. The judgment of the UK court will usually be perceived as highly legitimate, particularly if it has the support of government and Parliament. But if the ECtHR eventually disagrees with this national judgment, its judgment will be perceived domestically as illegitimate. If a UK court then subsequently gives effect to this ruling of the ECtHR domestically, this judgment will also be perceived as illegitimate. The UK court will be seen to be merely implementing what the ECtHR has decided, rather than standing up for national interests.
An example is the litigation which has taken place to challenge the ban on prisoners voting. Under the Representation of the People Act 1983, UK prisoners are disqualified from voting in domestic elections and elections to the European Parliament. This was first considered by a UK court in 2001 when the Divisional Court found no violation of Convention rights and stated that ‘in deference to the legislature courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation after careful evaluation and against a background of increasing public concern about crime.’Footnote 130 Five years later the Grand Chamber of the ECtHR found a violation of Article 3 of Protocol 1 holding that although the UK had a wide margin of appreciation on this issue, there was no evidence that Parliament had ever sought to weigh the competing interests or to assess the proportionality of the blanket ban. It also criticized the judgment of the Divisional Court finding that it was evident from the judgment ‘that the nature of the restrictions … was in general seen as a matter for Parliament and not for the national courts … [t]he court did not therefore undertake any assessment of proportionality of the measure itself.’Footnote 131 The Lord Chancellor at the time undertook to review the position and consider whether some prisoners should be given the right to vote whilst the Opposition, now in government, maintained that giving the prisoners the vote was not acceptable.Footnote 132
No change to the law resulted and litigation on the issue resumed. In 2007 the Scottish Registration Appeal Court found the disqualification incompatible with Convention rights but declined to utilize section 3 of the HRA stating that ‘there was … no ‘‘grain of the legislation’’ which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights.’Footnote 133 Nevertheless, it was willing to make a declaration of incompatibility. Other domestic courts considering the issue came to the same conclusion on lawfulness, but declined to make the declaration as it had already been made. In Greens and MT v UK Footnote 134 the issue was again before the ECtHR although the applicant prisoners had not sought a domestic remedy. The ECtHR, referring to its judgment in Hirst, again found a violation of Article 3 of Protocol No 1 stating that such a ‘general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be’.Footnote 135
It is clear from this example that the legitimacy conferred by dialogue between courts can only go so far, particularly when it is up against the legitimacy conferred via the democratic process. Although the ECtHR and UK courts are now in agreement on the violation of Convention rights presented by the ban, dialogue between them has not increased the legitimacy of either's judgments. Government and Parliament remain opposed to any change although government does now accept that some change must occur.Footnote 136 The decisions of the ECtHR have been portrayed by the media, and politicians, as disrespectful of the wishes of the UK Parliament and the judgments of the UK courts have been similarly portrayedFootnote 137 as merely implementing the wishes of the ECtHR with again, no consideration of the wishes of the Westminster Parliament. Although dialogue has resulted in a change in the position of the UK judiciary, it has not instilled the relevant judgments with sufficient legitimacy generated by shared values or authority and expertise to overcome the argument from democratic legitimacy and so ensure reform. Essentially a stalemate on the issue has now been reached.
C. Judicial Power
As the example of prisoner voting demonstrates, the legitimacy conferred on ECHR and HRA judgments by dialogue is not democratic legitimacy. This, after all, is a dialogue exclusively between judges and often resolved through political negotiations and judicial politics.Footnote 138 Many commentators have observed that dialogue between national and supranational courts results in a dramatic increase in the power of the judiciary. Reference has already been made to the view that judges together via dialogue are creating a ‘community of law’ which is ‘at least partially protected from direct political interference’. By referring to and reinforcing one another ‘they create a space that is insulated, but not isolated, from politics, economics and society.’Footnote 139
UK judges have been enabled by their relationship with the ECtHR to take many decisions that they might not have been prepared to take without it. Waters has observed that ‘a striking feature of transnational judicial dialogue is its transformative impact on domestic courts’ roles within the domestic polity’; this means less deference to the executive branch and also courts ‘are less likely to defer to domestic audiences on issues of individual human rights, and are more willing to import foreign and international norms into domestic law, even when those norms do not necessarily comport with majority views’.Footnote 140 There are a number of examples such as Ullah Footnote 141 where the House of Lords adopted an interpretation of substantive ECtHR case law which significantly expanded the grounds upon which an individual could resist deportation from the UK although this was portrayed as merely ‘keeping pace’ with the jurisprudence as it evolved over time. The subject matter was highly political as any expansion in grounds upon which an individual could resist deportation was likely to be unfavourably received by the Home Secretary and elements of the media. By making it clear that they were merely doing what the ECtHR required, their Lordships effectively absolved themselves from direct responsibility.Footnote 142 In the prisoner voting litigation, although a UK court originally found that the ban was Convention compatible, once the ECtHR had found it in breach of Article 3 of Protocol No 1, a Scottish court made a declaration of incompatibility.Footnote 143 And although a majority of the House of Lords had concluded in Marper Footnote 144 that the retention of fingerprints, samples, and DNA profiles was not a violation of Article 8, once the Grand Chamber of the ECtHR had determined that it was,Footnote 145 when the matter was considered again by the Supreme Court it found violation of Article 8 and used section 3 of the HRA to fashion a remedy.Footnote 146
Some commentators have pointed to the potential pitfalls of the increase in judicial power brought about by dialogue. For example, McCrudden has observed that with the dialogue limited to judges and lawyers, ‘the voices of the historically disadvantaged and marginalised are the voices least often heard, nationally and internationally.’Footnote 147 In his view, ignoring the problem of participation, whilst at the same time ‘appearing to engage in a closed dialogue with other judges at the supranational level, may weaken the protection of human rights rather than reinforcing it.’Footnote 148 There also remains the problem of democratic legitimacy. Although Parliament passed the HRA, containing section 2 and thereby embedding a relationship between UK courts and the ECtHR, seeking to confer democratic legitimacy on judge-made law in this way is notoriously difficult.Footnote 149 The present situation concerning prisoner voting illustrates this particular problem as well.
D. Outcomes before the ECtHR
Finally, when considering outcomes from dialogue, it is important not to overlook the impact that dialogue between UK courts and the ECtHR might have on the eventual finding of the ECtHR. In 2006 the Department for Constitutional Affairs maintained that dialogue between the courts in part accounted for the significant reduction in the number of adverse decisions against the UK.Footnote 150 It is true that since the HRA has had an impact on applications to the ECtHR, there has been a fairly steady drop in the number of violations on the part of the UK found by the ECtHR. In 2009 and 2010 only 14 violations were found.Footnote 151 But it is difficult to attribute the reduction in adverse findings against the UK to dialogue between the courts as defined above. In those applications where no violations were found, or the application was found to be inadmissible, this was usually as a result of the UK court applying the clear and constant jurisprudence of the ECtHR, rather than seeking clarification of a difficult point of law, submitting that the ECtHR jurisprudence was wrong or trying to fit a particular issue within the UK's margin of appreciation. Why the UK gets better results than previously before the ECtHR is primarily due to the fact that UK courts now have the opportunity to consider Convention rights arguments for themselves.
V. THE FUTURE OF DIALOGUE
After more than ten years of the HRA being in force, UK courts are only at the earliest stage of their dialogue with the ECtHR but the bare bones of this relationship have now emerged. The final question to consider is in what direction should dialogue between UK courts and the ECtHR now proceed? Some maintain that dialogue must continue and expand. Lady Justice Arden, a judge of the Court of Appeal, has argued that the ECtHR must show more respect for the role of national institutions via the principle of subsidiarity and application of the doctrine of the margin of appreciation. She would also like for UK courts to be able ‘to say to the Strasbourg Court that it has not made the principle clear, or that it has not applied the principle consistently, or that it has misunderstood national law or the impact of its decisions on the legal system in the relevant part of the United Kingdom’. But she also states that she is not suggesting a ‘free-for-all, or that domestic courts should be free to reinvent the wheel on human rights jurisprudence’. But she would like an approach more flexible than that presently adopted by UK courts in relation to section 2 HRA.Footnote 152 What is proposed is actually very close to the position which has already been adopted by UK courts utilizing the three paths to dialogue outlined above. If UK courts were to embark on a far bolder approach to the jurisprudence of the ECtHR, rather than the careful and incremental way they have done so far, it is clear that the outcomes before the ECtHR would not be favourable. As noted above, where a UK court has applied the clear and constant jurisprudence of the Court or, after careful consideration, concluded that the relevant Strasbourg jurisprudence is incorrect, this is almost always upheld by the ECtHR. But where it puts its own contentious interpretation upon an unclear area of Convention case law, often indicated by the presence of dissenting judgments, and subsequent academic critique, this is almost always not upheld.Footnote 153 Whilst an increase in conflicting judgments between UK courts and the ECtHR might boost the legitimacy of the HRA and HRA judgments, it would also create uncertainty, reduce the legitimacy of the judgments of the ECtHR, and eventually the UK courts if the ECtHR position was adopted, and sap power from both the UK courts and the ECtHR. It would also worsen the record of the UK before the ECtHR and place in question the role played by international law in the domestic legal system and possibly the UK's commitment to the Convention system as a whole.
UK courts have already identified the best cases in which to pursue dialogue with the ECtHR: where it is thought, after very careful consideration, that a judgment of the ECtHR is incorrect; where the subject matter engages the UK's margin of appreciation; and implicitly, in unclear areas of Convention jurisprudence. It is in the latter category that dialogue will expand as the Convention rights issues in the UK left for determination narrow to the most difficult and cutting-edge areas of Convention jurisprudence. There is also room for more dialogue over matters engaging the UK's margin of appreciation although it remains difficult for UK courts to identify precisely when this arises as the margin of appreciation utilized by the ECtHR remains inconsistent and occasionally incoherent.Footnote 154 One example where the opportunity was not taken is the Countryside Alliance case.Footnote 155 Although both Baroness Hale and Lord Brown concluded that the UK's margin of appreciation would definitely apply when considering whether or not the ban on hunting with dogs was proportionate, neither thought it relevant to the initial question of whether or not hunting was within the scope of Article 8.
VI. CONCLUSION
Discussing the dialogue which takes place between UK courts and the ECtHR is not akin to discussing the Emperor's new clothes. There is considerable scope for it to take place and the ECtHR is welcoming of it whilst UK judges are keen to seek it. But the dialogue which actually takes place is not as extensive as commonly assumed. It is not in every HRA judgment that every UK court seeks to enter into a dialogue with the ECtHR. If a strict definition of dialogue is employed, it could be said that dialogue has really only been sought by the highest UK courts in a handful of cases. It is only when the definition is relaxed a little, to ignore the delay and to encompass those judgments where dialogue is implicitly sought given that the area of Convention jurisprudence is not clear, that it can be concluded that dialogue has been sought over a much wider range of Convention rights issues although still not in every HRA judgment. With these assumptions in place, the three paths to dialogue identified by UK courts are now fairly firmly established in HRA jurisprudence and it is clear that dialogue will continue and possibly be sought in a wider variety of cases as UK courts become more confident in their role and the range of Convention rights issues as yet undetermined in UK law narrows. It is possible that all will be derailed should a UK Bill of Rights eventually replace the HRA, but given the undertaking that the present Commission is only investigating a measure which ‘incorporates and builds on all our obligations under the European Convention on Human Rights’ and ‘ensures that these rights continue to be enshrined in UK law’Footnote 156 there would be scope for dialogue to continue even if national human rights law were to change.
As dialogue does progress along the lines already established, the outcomes identified will also continue to be achieved. UK courts have already demonstrated that their decision making is respected by the ECtHR and that they can have an important role in norm creation for all Contracting States. There is also scope, should the issue warrant it, for UK courts to seek respect for certain national differences. Together UK courts and the ECtHR can ensure greater legitimacy for human rights judgments and even though these still lack democratic legitimacy, in the majority of cases the opinion of both a national and supranational court can convince government and the legislature to make the necessary change. But with dialogue also comes risks and it remains important for UK courts to be thorough and careful in their application of Convention jurisprudence particularly where existing jurisprudence is unclear. Experience demonstrates that where the judgments of UK courts and ECtHR conflict, this has a variety of negative implications including uncertainty and a loss in legitimacy for both courts. It is also important to appreciate the boost to judicial power that dialogue can bring and the backlash that can result should the opinion of judges, who have effectively joined forces, conflict with that of government and the legislature.
Twenty years ago it was inconceivable that one day UK courts would be entering into a variety of meaningful dialogues with the ECtHR over the interpretation and application of Convention rights. This is now a reality and it is hoped that it will continue to be nurtured and not threatened by an overzealous national judiciary, overburdened ECtHR or the careless reform of national human rights law.
