In today’s Sunday Times we have a leak of the proposals to amend the Human Rights Act. Most of what is proposed seems to be empty nonsense, such as enabling the UK courts to take into account rulings from other Commonwealth jurisdictions. One significant proposal is that “human rights laws would in future apply only in Britain.” One reason for opting for this reform may well be that it avoids any problems relating to devolution.
This is an issue the courts have repeatedly had to confront over the years, most recently in the UK in relation to the UK’s duties to its own soldiers and to civilians within the sphere of factual control of the British military in carrying out operations in Iraq. There is an excellent summary of the history of this question by Lord Dyson, which should be read as he reaches the opposite conclusion from the one I do here. I shall not, as he does, seek to take the reader through the twists and turns of each case.
One of the allegations made by Professor John Finnis was, it will be recalled, that the European Court of Human Rights has adopted an overly expansive interpretation of the Convention that is inconsistent with the intentions of those drafting it. In this case, I agree.
Article 1 of the European Convention on Human Rights provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.
What does ‘jurisdiction’ mean? Does it mean ‘territorial jurisdiction’ (ie within Britain) or whenever the State exercises authority over another (wherever they happen to be)?
I have argued before that where courts interpret provisions that control a democratic state they should do so conservatively. This applies with even more force to an international court interpreting an open textured agreement between states.
There are at least three indications that the word ‘jurisdiction’ means ‘territorial jurisdiction’.
First, in interpreting the meaning of words we must look to the context in which they are used. The context of the convention includes earlier drafts and the travaux préparatoires. The initial version of article 1 had applied the Convention to those “residing within their territories”. This would have excluded the Convention’s operation from those who were within the UK but not resident (eg newly arrived refugees). The travaux préparatoires stated that the reason for the change of wording was that:
“It seemed to the Committee that the term ‘residing’ might be considered too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word.”
This justification for the change indicates that ‘jurisdiction’ means ‘territorial jurisdiction’. The point of the change was to bring within the Convention people who were non-residents but within the territory.
Second, the word ‘jurisdiction’ has a technical meaning in public international law. It meant then what it means now. To be within a state’s jurisdiction is to be subject to its legal sovereignty. That is where its laws applies. If the Convention uses a word with an established technical legal meaning in international law, it would be expected that the word has that meaning.
Third, the structure of the Convention indicates that all the rights come together as a package. You are either within the Convention, in which case you get all the rights, or outside of it, in which case you get none. If a Convention State’s troops are in occupation of part of a foreign country, where the laws of that foreign country continue to apply, is the occupying state expected to secure the right to privacy or freedom of association? Clearly not. The primary way in which Convention states are expected to secure Convention rights is through their domestic law: which will not apply outside their own territorial jurisdiction.
The European Court of Human Rights decisively abandoned the interpretation of jurisdiction to mean ‘territorial jurisdiction’ in the Al-Skeini decision. Instead they interpreted the Convention to mean “whenever the state through its agents exercises control and authority over an individual.” This entails that British soldiers operating outside of the United Kingdom are within the Convention, as are non-UK nationals in areas under UK occupation.
This decision was, in my view, not only plainly wrong as an interpretation of the words of the Convention, but inconsistent with the Court’s own earlier jurisprudence. Earlier cases had extended ‘jurisdiction’ to cover embassies and prisons abroad, but this merely involved a consideration of how far the concept of ‘territory’ went. The decision in Loizidou v Turkey as interpreted in Banković v Belgium also indicated such a narrow interpretation. In the former case one Convention state (Turkey) excluded another (Greece) from part of its territory (northern Cyprus). As Greece was unable to secure the Convention rights of the persons situated there, in order to avoid there being a gap in protection, Turkey, the signatory state doing the excluding, was required to do so. If this were not so neither Greece nor Turkey would have had any duty to secure the rights of people within the territory of the Convention’s application.
The departure from the earlier authority in Al-Skeini cannot be justified on the basis of any kind of ‘living tree’ interpretation of the Convention. If we see the values set out in the Convention as embodying conventional as opposed to true morality, then their meaning can justifiably change overtime. What is an acceptable infringement of privacy in 1950, may not be in 2050.
The word ‘jurisdiction’ in the Convention is not of this kind. It is not a value of conventional morality, but a technical meaning fixed at the time of use. Unless the earlier decisions could be shown to be wrong (and they weren’t) they should have been followed.
The House of Lords (here referring to the previous label given our ultimate appellate court) and the Supreme Court had before Al-Skeini repeatedly and correctly concluded that the Convention had no extra-territorial application. The Supreme Court were then faced with the question of whether to follow the European Court of Human Rights, or depart from it. The court in Smith followed it.
Is the Government right then?
If, as I have argued, the European Court of Human Rights was plainly wrong in Al-Skeini does that mean that the UK government is right to cut back the scope of the Human Rights Act, and reverse Smith?
If we want other states to comply with the European Convention on Human Rights the only way the UK has of applying pressure to do so is to do so ourselves. We will not be sending troops into Russia to make sure they keep up to the mark. That entails that we comply with decisions of the ECtHR which are wrong, as I think Al-Skeini was. No court anywhere is right in every case.
United Kingdom domestic legislation cannot cut back the jurisdictional scope of the Convention. Changing our law will not reverse the ECtHR’s decision in Al-Skeini. Instead, the UK will have no remedy under our domestic law for breaches of the Convention outside of the UK’s territorial jurisdiction. That will place the United Kingdom in breach of its duties under Article 13 of the Convention to ensure adequate protection under its domestic law. That the ECtHR was wrong is not a sufficient reason for placing ourselves in breach of international law.