King's Student Law Review

Lord Neuberger’s recent speech concerning the relationship between the UK and the EU (and in particular the European Courts) is timely, although perhaps surprising. One on hand timely, due to the current calls for the UK to reconsider its relationship with Europe as allegations that it intrudes too much on the everyday lives of UK residents become more common. On the other surprising because interventions in this area have primarily come from Politicians and Government officials.

In his speech, Lord Neuberger devotes significant time to exploring why a notable portion of UK citizens are suspicious that they are “being subjected to undesirable mainland European civilian law
influences, from the jurisdiction of the Court of Justice of the European Union, the CJEU in Luxembourg and of the European Court of Human Rights, the ECtHR in Strasbourg.”[1]

The guiding principle that led to the creation of the European Union and related bodies was that it would help to create a lasting peace among the countries of Europe. However, as Lord Neuberger points out: “The prospects of peace in Europe resonates far less strongly in the UK than on mainland Europe.”[2]

But why is that the case? Neuberger attributes this to a number of historical quirks.

Firstly, until relatively recently we were a colonial power of some size. Whilst this is obviously no longer the case, the “UK should be one of a number of equal European states” was not a view that the majority of the public were prepared to accept[3].
Secondly, our recent stability as a nation also plays a major role. In the last 950 years or so, our borders have remained intact, and we are therefore unused to foreign occupation of any sort. In conjunction with this, our country has seen little in the way of bloody revolution, both to our Government and our Monarchy. Thus, the prospect of ceding some sovereignty to a foreign power in order to maintain peace and promote unity seems fairly alien to us.

Lord Neuberger also explores how religion may also play a role, pointing out that this has “never been a feature of UK politics”, and, unlike any other major European nations, we are not a Roman Catholic country[4].  This point can be demonstrated by reference to Ireland, our ‘closest’ European neighbour, who is a Catholic country. Ireland, at times, has shown much greater and deeper integration with the European ‘ideals’ than us.

Finally, and perhaps most significantly, Neuberger points to our legal history as the cause of the current conflict with the courts. This stems from our peculiar legal setup, that: “it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty.” [5]
Even under recent legal challenges[6], any forceful debate over the validity of sovereignty has been largely restricted to the academia. Another peculiarity of our legal setup is that we have a Common Law system, directly in contrast to the Civil Law present in the countries who make the legal decisions in the European Court of Human Rights (ECHR) and the European Union (EU).

 

Lord Neuberger’s excellent and well-researched speech provides interesting illumination that can guide us when we explore two recent areas of conflict and debate: Prisoners’ rights to vote and Whole-Life Tariffs.

The Representation of the Peoples Act 1983 stated that prisoners cannot vote whilst residing in prison[7], a continuation of a Victorian principle that prison is a form of ‘civic death’. In 2004, John Hirst brought a case to the ECHR- on appeal from the High Court- concerning this issue[8]. The court unanimously held that there had been a violation of his Human Rights under Article 3[9] of the Convention[10]. As the UK has signed up to the Convention, you would expect (or not considering what Lord Neuberger has said!), for that to be the end of the issue. According to David Cameron in 2012, however “No one should be under any doubt – prisoners are not getting the vote under this government.”[11]
The Prime Minister’s statement provides an excellent example of the current conflict between the UK and the European Courts. The ECHR gave a clear judgment- 10 years ago now- that voting is a ‘right’ for prisoners and not a ‘privilege’. The refusal of multiple governments to modify this current arrangement is a complete disregard for the obligations that we have under the current law. This stance seems even more ridiculous when you consider that the decision of the ECHR was merely that the ‘blanket’ nature of this restriction was illegal. A recent Joint Committee evaluation fully endorsed allowing prisoners serving 12 years of less the right to vote, something which would be fully compatible with the ruling from Strasbourg.

An even more recent example of this conflict came in the joint cases of Newell and McLoughlin[12], on the issue of Whole-Life Sentences and more specifically, the possibility of release. In Vinter v UK[13], the Grand Chamber held that such sentences must be reviewed at some point. In their opinion, a man must have at least the opportunity to prove to the parole board that he has become a reformed man and able to function again within society’s boundaries[14]. To deny them this right is contrary to s.3 of the Convention[15].

The political reaction to this decision was predictably outraged, with the Prime Minister saying that he “profoundly disagrees”. Justice Secretary Chris Grayling thought that the human rights convention’s authors would be “turning in their graves”.[16]
In apparent endorsement of these views, the Court of Appeal in February dismissed the appeal of Lee Newell that his whole-life order was ‘manifestly excessive’. It is perhaps the starkest example yet of the UK courts ruling in opposition to the ECHR, whose decision they are compelled to ‘take into account’.

A further critique of the antagonistic position of the UK courts can be made but a consideration of the number of prisoners serving the sentences in question: 49. This is significantly smaller than the total number of offenders in prison- 88,179 and tiny compared to our overall population of 65 million. In order for this small number to not even get a parole hearing, the UK seems prepared to call into question our relationship with the rest of Europe.
Both cases above demonstrate how the decisions of our Courts and the words of our Politicians have thrown us into direct opposition with the European Courts. This stand-off will have to end soon, and we have a choice: continue to illegally ignore rulings from Europe (making a mockery of our role as a nation that protects human rights) or to repeal the Human Rights Act 1998 and possibly leave the European Union. Our relationship with Europe has definitely hit a ‘rocky’ patch, but will we come through and what will the future hold?

 

 

 

Written By: Nathan Gore

LLB Student King’s College London