Does the ‘progressive authoritarianism’ of the Strasbourg Court threaten to scupper a compromise deal on gay marriage? Personally, I am relaxed about a gay couple choosing to marry in a registry office or other civil premises. As a politician, why would I stand in their way? But, in the same spirit of tolerance, I want to protect churches and other religious institutions from being forced to conduct ceremonies that run counter to their faith.
When I put this to Equalities Minister, Lynne Featherstone, in March she replied:
‘we will ensure that there is no risk of successful legal challenge against religious organisations that do not marry same-sex couples’.
This looked tenable. After all, the Equalities Act and the Human Rights Act are primary legislation. So, churches could be safeguarded by clear and unequivocal primary legislation.
What about challenges from Strasbourg? I took comfort from the current Lord Chief Justice who has affirmed:
‘As a matter of statute, the decisions of [the Strasbourg Court] do not bind our courts … statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.’
More recently, the President of the Supreme Court, Lord Neuberger stated:
‘The fact remains though that when Strasbourg speaks it is ultimately for Parliament to consider what action needs to be taken. The [UK] courts can only take account of its decisions insofar as they inform its consideration of legislation or the common law.’
This part of Britain’s unwritten constitution remains a vital democratic safeguard. When determining Britain’s international obligations, UK statutes and UK courts have the last word. This promotes legal certainty. When Britain ratifies treaties, government lawyers first check and confirm that we have the domestic law and policy in place to meet our international obligations – so we know what we have signed up to. The process also ensures government can’t assume international obligations – by signing treaties – which side-step the approval of Britain’s elected law-makers.
So, it was troubling to read, on The Spectator’s Coffee House blog, a letter from the Home Secretary to Mark Reckless MP, relating to the (recently failed) Abu Qatada appeal in the Special Immigration Appeals Commission, stating:
‘A decision was taken [by the Home Office] to adopt the test laid down in January by the Strasbourg court, essentially because we considered the domestic courts were bound to follow it’.
Readers will recall that in 2009 the UK Law Lords gave a green light to Qatada’s deportation, rejecting claims that he would be tortured or that he would not receive a fair trial in Jordan. The latter part of their judgment was overruled by Strasbourg in a novel ruling that expanded the scope of human rights law without any basis in the European Convention. Given the British constitution position, it is difficult to understand why the Home Office did not bother trying to argue that the Supreme Court should follow its earlier ruling, rather than bend to Strasbourg. The letter to Mark Reckless says that, even if such an argument had been successful, Qatada would just have appealed to Strasbourg and ‘inevitably’ secured a Rule 39 indication preventing his removal pending a third Strasbourg appeal.
Yet, this is an odd argument too. Rule 39 ‘indications’ from the Strasbourg Court were merely advisory until 2005, when Strasbourg decided on yet another judicial whim to assert that they are binding. Again, this had no basis in the Convention and contradicted Strasbourg’s own case-law. Fortunately, UK law does not recognise this power grab, and rule 39 indications do not bind UK courts. So, ignoring Strasbourg might create a diplomatic fuss, but not a legal problem.
The last gasp of the human rights fanatics is to claim Ministers and officials would be breaching their Codes of Conduct, which require respect for international law. Yet, since the Law Lords had already declared deportation lawful, that argument is flawed. The Codes of Conduct were never intended to trump our constitutional safeguards, especially when we face a challenge from abroad that puts Britain’s democratic authority at stake. The Prime Minister is the ultimate arbiter of the Ministerial Code, and has strong grounds to rebuff such nonsense.
There is a real danger in allowing our constitutional protections to be eroded by Strasbourg, which is why the Home Office should be fighting tooth and nail to resist its undemocratic mission creep. Our most senior judges have confirmed we can do this legally – without fines or compensation against the government being enforced in UK courts.
Equally, there is a further risk that the coalition – based on a novel approach to the Strasbourg Court – is diluting the very guarantees it wants to give Parliament to protect the churches and other religious institutions in the contentious debate over gay marriage. That would be a shame. It would also be a bitter irony if Strasbourg’s anti-democratic encroachments undermined a compromise package that would advance equality while safeguarding religious faith.