A Shift in the Attitude of European Courts towards Human Rights Law? An Interview with Prof. Timothy Endicott, Dean of the Faculty of Law, Oxford University

A Shift in the Attitude of European Courts towards Human Rights Law? An Interview with Prof. Timothy Endicott, Dean of the Faculty of Law, Oxford University

This spring, Rohit K. Pothukuchi, a 4th year law student at NALSAR University in Hyderabad, India, had the opportunity to interview Prof. Timothy Endicott, Dean of the Faculty of Law at  Oxford University. The Harvard Human Rights Journal is honored to share the contents of their conversation.
Interviewer: Rohit K. Pothukuchi

Critics have alleged that European courts have been neglecting international human rights laws, guidelines, and principles. Do you feel this is true?

If we take the European Convention on Human Rights (“European Convention”) as the center of international human rights law as it applies in Europe, well no, I don’t think European courts have been neglecting human rights law at all. In Britain in particular, because of the British Human Rights Act, they have been given legal authority to give certain forms of legal effect to the European Convention in English law and they have taken up that authorization from the British parliament with quite a bit of creativity and enthusiasm. They have not at all been slow to give effect to human rights law in the form of the European Convention. In British law the courts have been careful in some ways, and there are decisions in which they have held that they need to defer to the judgment of Parliament and the judgment other public authorities on certain issues that are relevant to international human rights law. But where they find a violation of the European Convention they don’t hesitate in using the power that they have been given by Parliament to strike down decisions of public authorities, and you can say the same fairly generally about courts across Europe. Of course, the European Convention has a different kind of legal effect in the laws of different countries. In quite a few European countries the courts of the state have power to give effect to the European Convention and I think they do so pretty readily. There are some exceptions; there are a huge number of cases challenging the judicial processes in Russia for example. So there are exceptions, but generally the courts in Europe I would say are quite enthusiastic in giving effect to the European Convention.

In giving effect to human rights principles and the European Convention, have the views of different courts in Europe been clashing with those of state governments?

Oh yes, quite clearly and definitely. For example, the British courts have consistently adopted a line on control of immigration decisions in Britain that is a direct and quite striking clash with the views of British politicians. Not just one or two politicians, but everyone in the British parliament who speaks out in public about immigration law today is criticizing the role of the courts in preventing deportation of illegal immigrants on the grounds of the right to privacy and family life under the European Convention. That’s just one example of a clash between British courts and the government.

Of course, there is also a clash between the governments of countries in Europe and the Strasbourg court. By ‘Strasbourg Court’, I am referring to the European Court of Human Rights, the court that’s responsible for deciding how to apply the European Convention across Europe.

In Britain the most dramatic example of this clash is over voting rights for prisoners. In British law prisoners cannot vote in general elections. According to the Strasbourg Court that rule is contrary to the guarantee of free and representative elections in the European Convention. This decision of the European Court of Human Rights is considered outrageous by British politicians, and not just by one or two of them, but by most of them. There are exceptions; some British politicians think that people in prison should have the right to vote, but most of the members of the House of Commons in Britain think two things. First of all, they think nobody who is in prison should have the right to vote in general elections; that if you have violated the laws of the land you have forfeited your right to participate in elections to Parliament. And secondly, they think this question should be decided by British politicians in a representative democracy deciding the matter in Parliament. They think that it should not be decided by judges, and especially that it should not be decided by European judges in Strasbourg in the European Court of Human Rights.

So yes, the views of the courts have been clashing quite dramatically with those of the state governments. But I don’t want to exaggerate it—the British government has made it unequivocally clear that Britain is not going to pull out of the European Convention; they are not going to abandon it because of these clashes and the tensions. But they don’t have a solution to the tensions and I think that tensions will be a permanent feature of human rights laws in Britain and other countries in Europe.

Considering that the views of courts have been clashing with those of the government, do you feel that courts have been creating their own law? Is the creation of such law reasonable?

Yes, the judges of the European Court of Human Rights have been creating law. In 1950, when the members of the Council of Europe signed up to the European Convention, they didn’t agree that prisoners would have the right to vote. When they agreed that there should be free and representative elections, that decision by the member states was not a decision that prisoners should have voting rights—it was a creative decision of the judges of the European Court of Human Rights that if there were to be free and representative elections then prisoners should have the right to vote in at least certain circumstances. So yes, they created that rule that prisoners cannot simply be banned from voting.

The very idea of judges creating law should not surprise us, especially in common law countries like England or India. Many of the pillars of English law and Indian law are created by judges. A great example, an ancient example, is habeas corpus—invented by judges to control government. Another example is the basic structure of contract law, which was created by English judges over centuries. A lot of contract law as we now understand it was created in the 19th century, and there isn’t anything surprising about this or outrageous. And I think that all of us should understand that, especially in a common law country, judges need to invent some of the law. But even if we have a written constitution as India does, or an international convention on human rights like the European Convention, when judges are applying the very abstract principles in a constitution or in a convention on human rights, they need to answer questions that were not answered by the people who framed the convention. So especially in the common law but also in giving effect to a written constitution or a written bill of rights or a statute of parliament or written contract or will; judges often need to decide matters that were not decided by people who wrote the constitution or the statute or the contract or the will, so that should not surprise us at all.

But your second question is quite separate. In exercising that power to make new decisions that were not made by authorities whose decisions they are giving effect to, are they acting reasonably? That’s a very complicated matter. If we think of it in terms of human rights law in Europe today—there is no simple answer to that. I think that some of the things that the judges of the European Court of Human Rights have done are brilliant and wise and just exercises of the lawmaking power that judges have, and I will give you one example in England. It used to be up to a politician to decide how long a prisoner should stay in prison if he was imprisoned for life, typically for murder. Under the European Convention, judges decided that that is a breach of the right to an independent hearing, and took away that right from politicians. That was a creative bit of lawmaking by judges and I think it was reasonable as you say. The above example on voting rights for prisoners—I think this is more complicated. On the one hand, I think that it would be good policy to allow prisoners to vote for a variety of reasons, one of which is that it would be a way of communicating to them on behalf of the state that they are members of the community and they are expected to play a role in the community and to be integrated in the community and participate in the future when they won’t be in prison any longer. On the other hand, I don’t think that anyone who has committed armed robbery or rape or murder has a right to vote any more than they have a right to freedom from imprisonment. And in the act of punishment in Britain, as in India, we take their freedom and we lock them up in prison. And if we also take away their right to vote then I don’t think that’s an abuse of them as a human being any more than it’s an abuse of them as a human being to take away their freedom of movement. So I am of two minds about the decision on the right to vote and I think it might have been a better idea for the judges of the European courts to leave it to the member states of the Council of Europe to decide for themselves how to run their election systems. So it’s a complicated picture. There are other decisions where I think it’s not complicated. I think the European Court of Human Rights has got it wrong. But out of all this I think some very excellent decisions and some unreasonable decisions by the European Court have emerged.  I don’t think there’s a clear cut balance sheet you can draw up to decide whether on balance they have done right or done wrong. But I think that the British government, even the conservative attorney general, is right in committing itself to remain a part of the European Convention.

Given that European courts have been involved in creating laws, do you feel that courts are unnecessarily interfering with the lawmaking process?

Well, the courts actually are part of the lawmaking process in my view, but they are also interfering with the lawmaking process when they declare in Britain that a statute is incompatible with the European Convention. There are some lawyers who would disagree and would say they aren’t interfering because the lawmaking process itself includes the European Convention. In this view, if Parliament interferes with the European Convention, then judges aren’t interfering with the lawmaking process but are instead giving effect to the lawmaking process because the lawmaking process requires adherence to the rights in the European Convention.

This is not a point of view which limits itself to a European context; you could say the same thing in regard to the Indian Constitution. When the judges of the Indian Supreme Court hold that a statute is incompatible with the Constitution, are they interfering with the lawmaking process? You might say yes because they are stopping Parliament from doing what Parliament chose to do. Or you might say no because they are giving effect to the Constitution itself and the legislature has no power to act contrary to the Constitution. So there is an interesting kind of tension.

In my view the courts, whether in India or in Europe, are not interfering with the lawmaking process in a way that’s illegitimate when they interfere to uphold the principles of the Constitution in India or the principles of the European Convention.

Have we been seeing a shift in the attitude of courts around the world—a shift towards creating their own guidelines with respect to human rights law?

In India, there has been a shift over the history of the nation since the union, and the judges have become more creative. In the US, there was a shift starting in 1930s and 1940s but more so in the 1950s towards more judicial creativity. In Britain there has been more of a shift since 1998 when parliament passed the Human Rights Act authorizing British judges to give certain kinds of legal effect to the European Convention. In my country, Canada, there has been a major shift in the attitude of the courts towards creating law under the Canadian Charter of Rights, a bill of rights that was adopted in the 1980s, and judges have become more creative.

Every large common law country, except Australia, has some form of human rights jurisdiction in its top court. South Africa is a remarkable example, but you could even include New Zealand. What I am saying applies to all of the forty seven countries of the council of Europe. So not only in common law countries, but in all of these nations and others, there has been a shift over the past century towards a new, more creative judicial role in governance—but it’s not straightforward and it’s not simple. In all of those countries, judges in different ways have tried to act responsibly and tried to construct powers for themselves in giving effect to what the framers of their constitutions have authorized them to do, in ways that show respect for the role of the legislature and the role of the executive. They have had mixed success in those attempts to be responsible in developing their own powers, and this is an ongoing process. So it is a very complicated question; there has been a clear shift since the 1940s in all the countries I’ve mentioned and others, towards a greater, more creative role for judges in governance. But it’s complex and in each of those countries, it involves some degree of hesitance to interfere with the legislature and the executive.

Are there any cases which point towards a shift in the attitude of courts?

Yes, the ones I have mentioned about voting rights for prisoners and the decisions on the right to family life which have become a limitation on the immigration policy in all forty seven nations of the Council of Europe are examples. And finally, the extension of the European Convention to cover overseas military operations is another example of the judges of the European Court of Human Rights taking a new, more assertive, and more creative approach to the responsibility they have. And we have to remember that’s not a responsibility they invented; the governments and legislatures of all those forty seven countries decided to sign up to a human rights convention, the European Convention. But the judges have developed their role under that convention. You could say the same about India: the judges didn’t invent the Constitution of India, they didn’t draft it. It was a political decision of the nation to adopt a constitution. But the judges have been creative in developing the role the Constitution gave them.

Why do you feel courts have been acting in this manner discussed above, and why have they started to adopt a more creative approach? Is the current set of human rights law insufficient?

Courts have been acting in this manner because political decisions conferred on them a responsibility to apply human rights norms. This is true in the UK, its true in India, and you could say the same about the US—the  judges didn’t write the Bill of Rights—it was the decision of representatives, politicians, to write the Bill of Rights.  More than 200 years later, today the judges must carry out the responsibility given by political decisions. Mind you they are also carrying it out in a more creative way today than they were 50 years ago in the European Court of Human Rights, in the US Supreme Court, and I think in the Indian Supreme Court. And the reasons for a more creative approach today are partly, in my view, that they are talking to each other more and they are reading each other’s decisions more, and there is more of a tendency for judges to rely on what judges in other countries have done as a justification for creative decisions in human rights law. In the US this is very controversial and some judges say that it’s improper for US judges to pay attention to what has been done in other countries, but then some US judges think it’s a very good idea to learn from the experience of human rights adjudication in other countries. This true in most countries that I’ve mentioned, such as Canada, and I think this is true in India. In these countries it’s not so controversial and the judges are quite committed to learning from each other. And I think that process of judicial conversation between different countries is part of the explanation of the more creative approach.

You also asked if the current set of human rights law is insufficient. No, I don’t think it is insufficient. You might say that it is, because there are a lot of crucially important human rights in my view that are not part of the European Convention, that are not guaranteed by the Indian Constitution or the US Constitution, or the Canadian Charter of Rights, or the US Bill of Rights. To give you an example, I think there is a human right to welfare, in a certain sense. Any person, who is in desperate need, just because he or she is a human being has a right to assistance from someone who is well placed and is able to give assistance to them. If I am right about that, then every state, well at least every well functioning and healthy state, including the Union of India, Canada, the UK, and the US, has a duty to provide welfare to people in desperate need, and those people have a right to it. And yet the law doesn’t protect that right. The European Convention very carefully didn’t provide a right to welfare. The judges of the European Court of Human Rights have been invited by lawyers again and again to create a right to welfare and the judges have refused to do so.

So you might say that human rights law is insufficient because it doesn’t give effect to this right to welfare. But I think that would be a mistake. I think that judges should only be giving effect to human rights law where the judges are able to make the decisions on behalf of the state that need to be made in order to respect human rights, and the judges are very good at that in certain cases. One example is the control of detention—if the government of a country detains someone, judges are independent decision makers uniquely capable of listening to both sides and deciding whether the detention is reasonable under Indian law and under European human rights law. But it is very different in the case of welfare, and judges are not well placed to decide what any state should be doing to help people who are in desperate poverty in those states. So that’s an explanation of why I don’t think human rights law is insufficient even though human rights law doesn’t protect every human right.

What is the way forward? How would you deal with the current situation—the clash in views between the government and courts?

There is no general answer to these questions; I think they are questions that can be answered in respect of certain particular legal issues. And yet, there are certain general aspects to the question, and I will tell you what I think the way forward is and how I would deal with the current situation. First of all, as I’ve mentioned, I think that it’s right for Britain to be part of the European Convention on Human Rights, even though I don’t think the judges of the European Court of Human Rights always do the right thing. I think that the judicial responsibility for fundamental rights under the Indian constitution is a great and valuable part of Indian social life today, and will be in the future. I also think that these remarkable aspects of law, both of India and Britain, need to be developed in the future by the judges with respect for the appropriate role of the legislature and the executive. That’s a very difficult balance for judges to achieve, to carry out their responsibility for protection of human rights while also showing respect for the elected role of politicians. That’s the way forward; they have to continue trying to achieve that difficult balance—on one hand standing up against government and legislative action that abuses human rights, and on the other hand, refusing to interfere with the government and legislature when the judges are not able to make things better for the country.

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