How has English law been affected by the work of the European courts at Strasburg and Luxemburg?
There are two courts of law which are commonly referred to as “the European Court” (as if there was only one). The first of these courts is the European Court of Human Rights at Strasburg, France. The second of these courts is the European Court of Justice (sometimes known as the Court of Justice of the European Communities). This court sits at Luxemburg. It is therefore inaccurate, and confusing, to speak or write about “the European Court”, unless this description is qualified in some way, eg “the European Court at Strasburg”.
The work of the two courts is very different, and the effect of their diverse work on the sovereignty of the United Kingdom is, therefore, not the same. Briefly put, the court at Strasburg is to the United Kingdom only a court of international law. The court at Luxemburg is, by contrast, a court handing down decisions which are directly enforceable in the courts and tribunals of the UK, by virtue of British membership of the European Community.
International law in the UK
International law consists of international customary law and the law of treaties. Treaties are sometimes known as Conventions, Acts, Declarations or by other various names. The transaction of a treaty is an executive act, not a legislative act, and it is therefore something which is done as part of the Royal prerogative in the UK. Parliament plays no direct part in the making of a treaty and does not have to ratify it after it has been signed. By the same token, under English and Scottish law, a treaty has no force within the UK and has no competence to change national (“municipal”) law. If, therefore, the British government wishes to alter English or Scottish law in conformity with an international treaty, it can do so only by persuading Parliament to adopt that treaty (or all or some part of its provisions) in an Act of Parliament promoted for the purpose.
If no such Act is proposed or passed, the treaty will be binding on the UK in international law, but it will not be enforceable in the English or Scottish courts. (Wales and Northern Ireland may be treated as part of the English legal system for these purposes.) Some international treaties establish courts of international law to adjudicate upon the rights and obligations created by those treaties. Of these courts, the European Court of Human Rights is the best known. It was established in 1953 by the European Convention on Human Rights, a treaty drawn up and signed by member states of the Council of Europe. The UK was very influential in the drafting of this convention, primarily because of the work of Sir David Maxwell Fyfe (afterwards Lord Chancellor Kilmuir). Maxwell Fyfe had been a leading member of the British prosecution team at the Nuremberg War Trials, and the collective horror aroused across Europe at what those trials had revealed was an important motivation in the wording and eventual acceptance of the new convention.
Although the UK was a founder member of the Council of Europe and an original signatory to the convention, it has never incorporated this treaty into English or Scottish law. Although the House of Lords as a legislative chamber has shown itself agreeable to this course, the House of Commons has never agreed. This means that when the court at Strasburg makes a decision that the UK has broken any of the provisions of the European Convention on Human Rights, this decision is binding on the UK in international law only and cannot be enforced by any national court against the offending government department.
In practice, however, several important administrative or legislative changes within the UK have been prompted by decisions of the court at Strasburg; for example, the creation of rights of appeal in immigration cases, the establishment of mental health review tribunals for patients in mental hospitals, the reform of the law of contempt of court and the abolition of corporal punishment in the Isle of Man.
The Treaty of Rome
The Treaty of Rome (and the subsequent treaties of the European Community) have been incorporated into English and Scottish law by the European Communities Acts 1972-1986. The first European Communities Act (1972) was passed in readiness for British membership of the European Community, which took place on January 1 1973. The effect of the Act was to require the British courts to give effect to European Community law, according to its own nature, and to enforce, where necessary, any decisions of the court at Luxemburg.
The exact nature of European Community law will be discussed in a later article in this series, but it suffices to note here that any doubts about the scope or meaning of Community legislation cannot be authoritatively decided by any national court. All courts and tribunals (even the lowest) have the power under the Treaty of Rome to refer such disputes to the Court at Luxemburg. Once a case reaches the final court in any member state (usually the House of Lords in the UK), such a reference to Luxemburg becomes mandatory.
The only situation where a national court of last resort can decline to refer a case to Luxemburg is where the law is so clear that, in truth, no interpretative ability is needed — only the ability to apply that law. This is sometimes known as the doctrine of acte clair. It remains to be seen what would happen if the House of Lords decides that no interpretative doubt exists about a legislative provision and refuses to refer it to Luxemburg, in circumstances where, in truth, the court at Luxemburg would be disposed to decide otherwise. Something of the sort may have occurred in Duke v GEC Reliance Ltd [8] 2 WLR 359 (a decision of the House of Lords). This decision (about sex discrimination in the case of retirement ages) seems somewhat at variance now with a decision of the court at Luxemburg — Barber v Guardian Royal Exchange (The Times, May 15 1990).
It should be noted that the court at Luxemburg has no power to enforce its own judgments or to commence proceedings of its own motion. As a general rule, it can receive references only from the courts and tribunals of member states, and it is those courts and tribunals which must enforce the decision once it has been given.
However, in the case of a recalcitrant national court, the European Commission can commence proceedings in its own name against the member state. The European Commission can commence these proceedings in the Luxemburg Court and can seek to use the economic and political power of the European Community to secure compliance with treaty obligations.
Cases in Strasburg
British membership of the Council of Europe pre-dates British membership of the European Community by 20 years. There are still several states (eg Norway, Sweden and Austria) who belong to the Council of Europe but do not belong to the European Community. Nevertheless, it is a fact that every member state of the European Community is also a member of the Council of Europe. This gives the decisions of the European Court of Human Rights at Strasburg a significance far beyond their legal status in international law. In fact, several member states have incorporated the convention into their national law.
Having noted this, it must be observed that the European Convention on Human Rights has not made any perceptible impact on English property law if, indeed, such an impact were needed. In Mellacher v Austria (The Times, January 3 1990), the court at Strasburg held that statutory rent controls were not an infringement of the European Convention (Protocol no 1). Similarly, in an earlier case involving the UK, James v United Kingdom (1986) RVR 139, the court had held that the Leasehold Reform Act 1967 was not infringing the rights of landlords to such an extent that it became a breach of the European Convention. More recently the court held that complaints about aircraft noise from landowners residing near airfields were outside the scope of the European Convention: (Powell and Rayner v United Kingdom, The Times, February 22 1990).
One area, however, where the convention is acknowledged to be more protective of individual rights than the common law is in the field of privacy. Article 8 of the European Convention states that “everyone has the right to respect for his family life, his home, and his correspondence”. This contrasts with the common law which, although it recognises a law of trespass, does not recognise a “right to privacy” under its own name. It will be interesting to see whether article 8 eventually brings about legislative changes to English law. It remains to be seen what the court at Strasburg would make of the old case of Penny v South Eastern Railway Co (1857) 7 E & B 660, which refused to recognise “loss of privacy” as a valid head of claim in land compensation. By analogy with the unsuccessful complaint about aircraft noise (Powell and Rayner v UK, supra) there does not appear to be any prospect of a favourable judgment from Strasburg widening compensation rights. But, for all this, the importance of the European Convention should not be overlooked. It contains many important of the European Convention democratic European ideals, and could clearly form the basis of a “European Magna Carta”, as called for by Mrs Thatcher in her speech in Colorado earlier this month.
Luxemburg v national sovereignty
The Treaty of Rome, and the other obligations of EC membership, do not duplicate the European Convention on Human Rights. The concern of the European Community is commercial and, perhaps, fiscal, but not to the UK’s way of thinking jurisprudential or political for its own sake. Nevertheless, the Treaty of Rome enshrines two personal rights which have had an important effect on English and Scottish law and upon the laws of all the other member states.
These rights are those relating to freedom of movement for labour and goods within the European Community and those arising out of the treaty’s prohibition on sex discrimination in employment. The first of these rights clearly restricts the sovereignty of a member state to prohibit or restrict imports, to protect its fisheries, or to enforce immigration controls. The second of these rights has proved to be far more extensive under European Community law than was ever intended to be the case under British legislation. Thus, the European Court of Justice at Luxemburg has recently ruled that the British courts now have the power (and, perhaps in some cases, the duty) to suspend a British Act of Parliament restricting fishing rights in the North Sea pending the outcome of a challenge to that Act in Luxemburg (R v Secretary of State for Transport, ex parte Factortame Ltd, The Times, June 20 1990).
This has been a considerable shock to the British government and Parliament, since the previous practice of the British constitution has been that courts in the UK can interpret, but cannot question the validity of a British Act of Parliament or suspend statute law in any way. An equally momentous decision was made by the court at Luxemburg in Barber v Guardian Royal Exchange (supra). This case decided that retirement benefits in contracted-out pension schemes, if they discriminate between men and women, are in contravention of the Treaty of Rome. The effect of this judgment has still to be calculated on private pension schemes which operate differential retirement ages or differential redundancy benefits, and recent newspaper reports have shown that the CBI is seeking clarification of the judgment. Employees of state enterprises have also received judgments to a similar effect, because member states, as employers, are bound not only by the treaties of the European Community but also by directives outlawing sex discrimination: see, for example, Marshall v Southampton and South-West Hampshire Area Health Authority [6] 2 ECR 723 and Foster v British Gas, The Times, July 13 1990. (These cases will be discussed in a later article in this series.)
European Convention on Human Rights (Extracts)
Article 2
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
Article 5
1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
(g) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Article 7
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
Article 10
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
Article 12
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
