Sir Michael Burton
High Court Judge
On: The Impact on the Courts of England and Wales of Human Rights and European Law
18 October 2007
Introduction (Sir Michael Burton, E-AG): “I used to be the Chairman and then the President of the Group a few years ago, so you may ask yourself why I am chairing the meeting this evening. Those of you who were at the AGM just before dinner know that we have in fact, a new Chairman of the Group, Baroness Symons, who is a great catch if I can put it that way, for the Group, and our existing Chairman moved up in the normal way to become our President. But, unfortunately, neither of them is able to be with us this evening.
That’s the first reason. The second reason, of course, is that it is Justin’s little joke to have Sir Michael Burton introducing Sir Michael Burton. Some of you may have thought that I was going to be talking this evening about European law and the Human Rights Law on the UK courts; that would have been a very short talk! It’s not me; it’s my very distinguished namesake. And we are, indeed, very lucky that Sir Michael Burton, who is a High Court judge, can be here with us this evening because he is a great authority on the subject.
His subject is the impact on the courts of England and Wales on Human Rights and European Law and it’s particularly appropriate because the European Council will be taking place over the next few days at which the heads of state and government will be signing the EU reform treaty. This is, of course, deeply controversial, not least in this country. One of the reasons why it is controversial is that the question arises whether we really know the full implications of what we’re signing up to. The reason for that is that it could be the European Court of Justice, the ECJ, which has the last word in so many of these controversial areas as time goes by and as the not fully watertight wording of the treaty is tested and comes before the court. So we may find ourselves in areas we had not expected to find ourselves in. I may be entirely wrong about that, but that I think is one of the things we are going to be hearing about from Sir Michael.”
Sir Michael Burton: “Thank you, Chairman. I am absolutely delighted to be here to complete the set of Sir Michael Burtons. It is most extraordinary because not only are we namesakes, but when he was your President of the E-AG, I was President of the EAT, the Employment Appeals Tribunal, which I was for three and a half years. And we do occasionally get each other’s post. A number of people came up to me when you were standing as Chairman of Hurlingham and told me, “I’m voting for you”, so I think you owe me a few votes. Michael got a letter from an Oxford college inviting him to put in as principal of the college and he handed it over to me and said, ‘Would you be interested?’ Both of us passed up the opportunity.
I thought I would pick out a few topics for discussion, because my purpose tonight is not to give any lengthy lecture but to throw up a few seeds for discussion. I hope, given the presence of so many distinguished people here tonight, that you’ll all want to involve yourselves in a debate, around the topic of the impact, of which of course there are many – I am only going to touch on one or two – on the courts of England and Wales of Human Rights and European law.
I am taking a topical starting point which is not strictly about human rights or European law, but it is one in which I happen to have some recent interest and involvement. That is Mr. Al Gore’s film, ‘An Inconvenient Truth,’ which of course is particularly of interest to the European-Atlantic Group. Some of you may have seen that I was the judge in what was a fascinating case. Sir Bryan (Thwaites) sitting next to me here put it politely; he asked, ‘What was your status?’ What I think he meant was, ‘What on earth were you doing?’ And it was a rather unusual task, because I as a judge was deciding whether it had been lawful or unlawful for the two cabinet ministers, Alan Johnson (then Education) and David Milliband (then Environment), to decide together – and later do a press conference – to dispatch a copy of this film to every secondary school in the country.
Was that lawful or not? It was sections 406 and 407 of the Education Act, which had never been the subject of any consideration by the courts before, which were in issue. The Claimant was backed by others, and he said ‘I’m just a father and a school governor but I disapprove of this being done.’ So I wasn’t out to be – as I sometimes felt I was being – a sort of member of the British Board of Film Censors. It is a marvellous film if you haven’t seen it and I would highly recommend it. There was a news programme on the BBC and someone rang me up and said, ‘you’re on the television’ so I raced to the switch and heard that …Mr. Gore has a notoriously thin skin and he will be very upset about this! I thought, ‘I don’t want to upset him! Why should I upset Mr. Gore?’
But it wasn’t about that nor of course was it about my judging of whether or not it was good science or bad science. What I was being asked to say was whether there was a breach of the sections which prevent the promotion of partisan political views by schools. That’s what s406 says; s407 says that if schools are going to start political issues then there must be a balanced discussion. This comes out of the 1986 Education Act of the Thatcher era, from which one of the distinguished representatives is here today [George Guise], and, no doubt, the idea is to ensure – and no one has challenged these sections – that schools are not promoting a particular party or party line, political indoctrination. The issue was, was it a political film, and was the government promoting a partisan political film by dispatching it to schools? In that context, I was asked to look at all of these errors, or alleged errors or exaggerations. The Claimant said there were about fifty of them: “30% science and 70% sentimental rubbish!” I was satisfied that the statements in the film were broadly in line with the scientific consensus, but I looked at the alleged errors or exaggerations, and I was persuaded in respect of only some of all those that he was relying on, exaggerations such as the twenty foot wall of water that was going to crash down on Shanghai and Bangladesh in the next few years; these were marvellous images and part of Gore’s crusade but they were effectively partisan. If you put these out as a matter of fact when they do not accord with the scientific consensus, you may be said to be being one-sided and therefore partisan. Of course, the irony is that in the very week that this case came on, he got the Nobel Prize! I actually went into court to start on a different case on the next day and said, “If anyone in this court room is in line for a Nobel Prize, just mention it to me and I’ll put in a good word!”
The point that I really wanted to make about this, which I think can be illustrated by this case, even though it is not a human rights case, it is that everyone ascribes the views in the statements that I have made in my judgments as if they were my own, ‘Mr. Justice Burton thinks so and so…’ and even friends of mine either in calls or e-mails have said they agreed with me or didn’t agree with me… But it’s not me! I am simply articulating my decision on the rival arguments put before me. As I said, it seems to me that what I’ve felt quite strongly since the Human Rights Act has come in, that the public and the media are bound to consider – and it may sometimes be the case – that the personal views of a judge impinge on his decision making.
We were bound by the law of precedent. I am a great believer in the law of precedent. It means that people who are concerned about how they can operate their lives and their lifestyles, and make business or personal decisions, can either ask themselves, or, if necessary, ask their lawyer, ‘What’s the court likely to think of this? Will what I do be lawful or unlawful?’ And the answer would be: ‘Well, the 1949 Snodgrass Act said so and so and as long as you comply with Section 371, you’ll be all right’. Or ‘The Court of Appeal of the House of Lords has said such and such is the case, and that is the law.’
Now, if there’s a Human Rights Act element to the case – that’s not the initiative of the judge; that’s down to the lawyers who act for the party (everyone now tries to bring in a Human Rights Act point, just as in the early days of European law when everyone tried to bring in a Euro point or a Euro defence) – if a Human Rights case is raised, then the power of the judge has been dramatically increased by the Human Rights Act.
This is not the judge’s wish; it is Parliament’s wish. There are two particular impacts of the Human Rights Act on judges. Perhaps the most significant impact of the Human Rights Act is that a judge can be persuaded to conclude and thus declare that an Act of Parliament is inconsistent with the Human Rights Act. There was some talk when the Human Rights Act was being debated, as to whether judges would actually be enabled to strike down an Act of Parliament but fortunately, we can’t. All we can do is declare that it is inconsistent with the Human Rights Act. But of course, the likelihood that the government would not do something about it, when a court has declared an Act of Parliament inconsistent with the Human Rights Act, is limited. On those few occasions where it has happened – and it has happened from time to time, usually in the Court of Appeal – they have hastened to procure a change in the law. So we can’t always any longer say, ‘I don’t agree with this Act and you don’t agree with this Act, but unless we can find some way around it, I’m sorry, I’m bound by Parliament.’
The other impact is that we cannot now simply say when an issue of Human Rights arises, ‘I’m sorry I may not agree with the law, but I can’t find for you because of a binding decision of the Court of Appeal or the House of Lords the other way.’ Now, if we are persuaded that a previous decision of a higher court (including the House of Lords) is inconsistent with the Human Rights Act – which is entirely possible because they weren’t looking at the Human Rights Act when they decided the point (it didn’t bind the courts until 1998) – then we must follow the Human Rights Act, and not those decisions. There is the risk that we either may unconsciously be affected by our own personal views – I hope we are not, we try not to be – or we may be pictured in the media as being affected by our views. It is a relatively new phenomenon that litigants have begun to start objecting to a judge because they express concern that he or she may have views which may affect the outcome. Normally this is not going to get anywhere – unless it happens that you have got shares in one of the companies on one side or the other, in which case you would declare that. That’s an obvious need for a declaration of conflict of interest – but judges can be trusted to get on with the job and not be affected by their own personal views. But it is rather different where the Human Rights Act comes in and it could be said that your view – whether it’s on global warming or abortion or whatever it might be – might possibly affect the outcome. As I say, litigants are now doing this and the courts are resisting it at the moment, and there are firm decisions by the Court of Appeal saying that judges not only should not, but must not, take account of such applications, because we’ll end up with litigants searching for the judge who they think will be best for them. But in Human Rights cases, where a judge may have to decide free of precedent, this is obviously more of a worry.
It is a problem, and there are two possible ways in which that may have effect. The process is that judges are now appointed, not by the Lord Chancellor, and on careful advice from the very well informed civil service, and from judges and fellow judges, as to whether you are or aren’t a good lawyer with lots of legal experience, you obviously know the Snodgrass Act inside out and have good qualities in terms of judiciousness. It may be, now that it is a question of the Judicial Appointments Commission deciding who should be selected, a majority of which are laymen and will not know for themselves whether you are or aren’t a good lawyer or a good judge, who may or may not take it on trust from their fellow members which ones are good lawyers or good deputy judges, that there is a risk, in the long or medium term, of some shift in appointments – from those who emerge as being good lawyers to those who seem to have the right views. The Lord Chief Justice has been publicised recently as rigorously resisting a proposal that meant that new members of the House of Lords/ Supreme Court would have to go through a nomination system as in the United States. But there is that risk.
The other risk is of course that we might be pushed into the American system of judges being elected. I think that might be a disaster. But what if it is contended that judges should be ‘representatives of ordinary people’? It is certainly the case that judges have become ‘more normal’, I hope. When I was a young barrister there were a lot of judges who could be genuinely unpleasant, and were not simply pretending to be unpleasant to people who failed to comply with orders and that kind of thing. Sometimes we get irritated, but I believe that modern judges can be trusted to be judicious and do not suffer from what I like to call, ‘judgeitis’. On the whole, we are more sensible and more ordinary than we were. Judges obviously have to buy food in supermarkets. The wielder of the supermarket trolley however is not necessarily going to be the best judge, but there is the risk that it will be considered that judges should be chosen not as good lawyers or judges but as good people. That should not be the test. Therefore, there are real possible impacts just from the incorporation into British law of the Human Rights Act on the very fundamental way in which the courts operate.
Let me move to another point which is in relation to the specific impact which the Human Rights Act has had on certain judicial decisions. Interestingly, the last Home Secretary Mr. Reid, very shortly after he ceased to be Home Secretary, having been responsible for so many things across the board, for example prisoners and counterterrorism, made a speech attacking the Human Rights Act. He raised a number of examples, which led to a rather interesting article in the Daily Telegraph. The most notable one, probably that which caused him to make the speech at the time, was the decision of the Asylum and Immigration Tribunal not to overturn a recommendation for deportation in respect of a young man who murdered the headmaster Mr. Lawrence, such that he wasn’t to be deported back to Italy. But a number of other examples were given in the Daily Telegraph in their analysis of the speech and I just mention a few of them, without expressing any personal views one way or another. One of the examples was that of the Afghan hijackers, who were not sent back to Afghanistan. In 2005, said the Daily Telegraph, a sex attacker was released from prison after serving 16 years of a life sentence because officials were worried about breaching his Human Rights, and within nine months had murdered again.
A London jeweller was told by police that circulating images of a suspected thief who was caught on CCTV would infringe human rights legislation. British troops in Iraq and Afghanistan: the House of Lords ruled that the Human Rights Act does apply to soldiers operating in war zones abroad. A suspected car thief who bombarded police with bricks and tiles during a rooftop siege in Gloucester was given a Kentucky Fried Chicken meal by officers ‘to ensure his well-being and human rights’. These were examples all given in the Daily Telegraph article. Because of the fact that now in Human Rights cases there is a counter to the traditional following of precedent and the automatic following of whatever legislation is passed by Parliament, this is bound to lead to difficult cases. It is so much easier nowadays to get it wrong. Leaving aside the various examples of police advice referred to, the court decisions do get more difficult.
Perhaps the most contentious and difficult point was a case where the courts were locked into battle with the Executive. It is interesting to note that the media found themselves uncertain as to which side to support. It was tough, but these kinds of questions have never previously arisen. I refer to the counterterrorism legislation. There were two cases involving a man called Mr. A. This all arose because of the incredibly difficult position in which the Executive finds itself, where you have in this country people like Mr. A, who are suspected terrorists, allegedly dangerous terrorists, and who, whether they are or aren’t, have no right to stay in this country, and would be deported because they have no right to remain, would not be given asylum because they haven’t got a genuine asylum claim and would thus ordinarily be returned to their county. Yet we cannot return them to the country to which we would naturally return them because they say, and it is no doubt true, that their lives would be at risk if they were sent back to the countries where they come from. This is a real problem. The Government says that if we can’t send them back, we can’t deport them, we certainly don’t want them here, so we will detain them permanently, unless of course they choose to go somewhere else. There was a challenge to that, and it went all the way up to the House of Lords, which overturned the Court of Appeal, concluding that the system was contrary to the Human Rights Act, and more interestingly that it was discriminatory towards aliens in that British nationals were treated differently, and the Act only led to the permanent detention of aliens. So the House of Lords decided the provisions to be inconsistent with the Human Rights Act, and the Government then changed them. They introduced legislation which was non-discriminatory, because it allowed the detention of British residents as well, but consisted of the imposition of control orders, which required those subject to them to remain not in detention but at a specified address.
That was the end of ‘A No 1’, but then ‘A No 2’ pops up. This only got up to the Court of Appeal, because there was no appeal to the House of Lords. This time, the Court of Appeal decided that the legislation was within the Human Rights Act, but that such a control order was contrary to the detainees’ human rights, because it could lead to them being shut up for 24 hours a day. So the control orders had to be changed – such that in practice the maximum period of time that they can extend is 14 hours per day, so the other 10 hours they are allowed out, but no doubt a good deal of time and money is spent on keeping an eye on them. The special court – SIAC – on which I sit occasionally – can hear evidence in secret, when special advocates can be instructed to represent the interests of the detainee.
It’s a balancing act and we should feel very proud of the courts, whether you agree with their decisions or not, in having stood up to the Government in that way and I suppose we should be proud of the law. But you cannot get away from the impact of Human Rights, especially these days with counterterrorism. The Government does its best to find the balance; Parliament debates it and passes the legislation. In the old days that would have been that. We would have said, ‘Well we have done our best.’ But really, it’s a thin red line.
All these are terribly difficult questions, but it would seem that the Human Rights Act is probably better as an English law. It’s probably better to have an English court deciding under an English Act than to have it decided by Strasbourg. We are more likely to be able to introduce a British element into the decision than if it was not our courts making the decision.
The other aspect of the Human Rights Act I briefly touched on in mentioning the secret evidence and instruction of special advocates. It is still controversial whether information obtained by the security services should be admissible in evidence and consequently disclosed. I will mention an interesting case that I am dealing with at the moment: some of you may have seen it in the paper when there was a hearing at the end of September. Cherie Booth is representing the nephew of a man who was a scientist in Germany during the war and was well connected in Nazi circles. The nephew wants to establish that he was in fact a spy for us, for Britain. There’s a book which says that he was, and one said to be terribly significant to the British side, but it is all speculation. They want to show that he was a British spy. MI6 has ‘neither confirmed nor denied’ that files exist, and the only tribunal to challenge this is a tribunal of which I am Vice President called the Investigatory Powers Tribunal. We have the opportunity to challenge the Intelligence Services’ decisions, so we have this very interesting judgment to make. MI6 relies on the Intelligence Service Act which says that they are prohibited from disclosing any information (or whether they even have it) unless it is positively in the national interest to disclose it. Although Article 8 of the Human Rights Convention was raised in respect of privacy, it is only part of the issue.
I want to turn finally to Europe, although, as Sir Michael says, it is particularly topical at the moment in terms of the treaty. At the moment, one of the red lines of Gordon Brown is that there should be no more interference by the European Court. I’m only looking at how things are at the moment. It’s been this way since the European Communities Act of 1972 which made the decisions of European Court of Justice binding on English courts, and certain aspects of European law directly applicable in English law. I just want to comment briefly on two aspects which are more procedural than substantive, because European law still does not govern most of our lives. It has a great deal of impact, I know, on business and on pricing and on competition, but it is still a relatively limited area. I want to throw up two points of positive impact.
The first is a very real one, relating to the passage of time. English courts now have to decide issues of European law, because European law is now part of our law. If there’s a matter of doubt, then we are entitled, and in some cases obliged, to refer it to the European Court of Justice. There is a tremendous reluctance on UK courts to dispatch issues to be decided, because of the delay in the European Courts, not simply because it now has an increased number of judges. (By the way, it is interesting to appear there as Counsel, as you are given a very short time to speak, but what you say is simultaneously translated, and up in the boxes there are interpreters, and one can tell immediately which ones are Italian, Spanish and French interpreters because they are the ones waving their hands in the air as they translate!)
A reference to the European Court inevitably has a period of time built in before it comes up. The average period of time is not as bad as it used to be, but it is 19.8 months between a reference to the European Court and a decision by the European Court. I am told they act more quickly on English cases, because the language is a less of a problem than on others, but this passage of time is a real impact. You can slow things up here by getting a reference to Europe.
The other impact is that when you do get to the European Court of Justice, the judgments are extremely succinct. While English judges will deliver a judgment as long as is required, giving full reasons for this, that and the other, and hopefully not only will the parties know why they won or lost, but future cases will be able to use it as precedent, European decisions however are uniformly extremely short. The judgments are usually only about 20-30 paragraphs long. That does leave room for a number of possible interpretations, which in some ways I suppose can be a good thing but it doesn’t give, I don’t think, the kind of guidance that the English courts tend to give.
So those are two impacts, and I’m sure there are others that have been around for 30 years but are not quite so significant. Those are the points that I wanted to throw out for discussion.”
Sir Michael Burton (Chairman): “Thank you very much, Sir Michael, you’ve raised a number of extremely important points and opened up avenues for discussion.”
INTRODUCTION TO DISCUSSION by George Guise: “As you’ve just heard, my name is not Sir Michael Burton. I think that English law arrives from the fundamental premise that the individual is completely free and to the extent to which that individual may through his actions interfere with the freedom of someone else and the state, being the embodiment of all of the other individuals, will take action to prevent it. That’s why I can’t go down Bond Street shooting people, because I’m interfering with their rights to go down Bond Street without being shot. Now I understand that Napoleonic law and Roman law, from which it evolved, regards the state as the supreme object. The state is infinitely powerful; the state is allowed to have intent and purpose. Under English law, I don’t think the state can have intent. So what we have under European law is the principle that the individual has no freedom and that the State has total freedom. However the individual is then allowed to carve out some space within that totality which will then be enforced by the state. So, we’re approaching the thing from two totally different points of view and I think there is a collision course on the way, and the European Court of Justice, I think, is allowed to decide its own competence when it is in conflict with the courts of a national member. And to allow any organisation to decide whether it or somebody else is competent, particularly if there are people that cannot be fired, seems to me extremely dangerous. Now, there are four suggestions which I would have thought, if I were Mr. Brown, that I would be trying to get as a condition to our signing up to this treaty if we sign at all.
First, I think that the community or the Union as it’s now should repeal the Acquis Communautaire, by which a Directive once issued can never be rescinded. Secondly, I think MPs and ministers should be able to initiate and repeal legislation rather than made to approve or reject what the Commission proposes. But the initiative at the moment, in case anyone doesn’t know, is always information. No MP or minister can come up with a proposal. Thirdly, I think that restitution of social policy responsible should be the responsibility of the governments of men of the states. I think that the rejection for all time of the Constitution’s dangerous proposal – it’s now not called the Constitution; it’s called the Treaty – that the European Court of Justice should itself have the final power to declare supremacy over the highest courts of member states. There is a country that’s managed to organise itself rather like that. Switzerland has got practically all the trading benefits of the European member states. It has two bilateral agreements with the European Union which protect the rights to trade. It’s not a custom duty, so you can get free VAT levels, but you can’t protect, for example, a French firm to do public services in the Swiss Canton. So there is competition, free trade, but there is none of the intellectual baggage that annoys so many people.”
Sir Michael Burton (Chairman): “Thank you very much. I’m going to open it up to the floor”:
Questions were not asked with a microphone and therefore will not appear on the transcript.
Question 1: Referring to increased appointments of women and ethnic minorities.
Response (Sir Michael Burton): “Interestingly, we judges all had an e-mail today from Mrs. Justice Dobbs saying she was misquoted, or should I say misquoted, because she did not, she insists, say that she believed in quotas, which I’m sure she doesn’t. Certainly, the present remit of the Judicial Appointments Commission is subject to statute and it says that merit must be the primary issue in selection. Of course, how you judge merit is another question, as I was saying earlier.
You could judge merit in a number of different ways. In terms of encouraging women and ethnic minorities to go to bench – I’m in favour of that. I think that one has simply got to realize that at the Bar now – which is the main place where the judges come from – taking women first, it’s something like 50-50 in all members of the Bar in their first ten or so. Looking at those who are more senior, there are fewer women simply because that reflects the entry levels of 20 years ago. The same goes for ethnic minorities, not quite so much, obviously not fifty per cent, but among those that have recently joined the Bar, a higher proportion than there used to be.
They are seeking ways to improve access to the Bar, although it’s a real problem. Barristers are finding that there is no work because litigation is getting too expensive and is being cut back – but that is another story. But in ten years time, there will be many more from ethnic minorities than there are now. You appoint judges from the senior barristers and lawyers. As long as the majority of senior lawyers are more men than women, and there are fewer from ethnic minorities, we’re bound to get this affect on the pool available for judicial selection. I am not in favour of reverse discrimination, and indeed I believe it would be unlawful to reverse-discriminate, but in five years, I think you’ll find that the bench will start to have more women, and in ten years, fifteen years, I suspect the bench will be 50-50, with increases in ethnic minority representation also. I don’t believe Mrs. Justice Dobbs, who is herself of course, black, thinks anything different. I’m sure she did point out that it’s the case that of the recent appointments to the bench since her – the High Court since her – they have all been white and very few of them have been women. But that is because the High Court Bench still needs to be appointed on merit. As I’ve said, in ten years time, I think you’ll have a very different story. I don’t think the Judicial Appointments Commission will take a different course. They are looking to encourage women and ethnic minority members but the High Court Bench is a different thing from the district court bench and the crown court bench. In the latter there is a very different story: there is larger representation already of women and ethnic minority members.”
Question 2: Response (Sir Michael Burton): “As a Queens Bench judge, I do try criminal cases, but I’m very largely not dealing with them. What I’m very conscious about is that the police and other important agencies now have more powers in the counter-terrorism areas, which they are now using. I am not personally conscious of what is reported in the media (I read it as you do) about the police not being as well trained as they were, being dominated by paperwork, dominated by targets; they have to arrest a number of people – and as a member of the public, I feel the same way about traffic wardens! (Laughter.) But I don’t think that’s anything to do with the Human Rights Act or the reverse. It may be that we’re not training the police well enough now, but, from my point of view as a judge, I’m not seeing that. I’m only reading what you’re reading in the media. It’s not hitting the courts. What is hitting the courts is that there are Counterterrorism Acts, trials which depend upon evidence which has been obtained from secret sources and so forth. But as far as whether police are acting rudely or highhandedly, if they are, I don’t think there has been any change.”
Question 3 from Sir John Osborn: “How does our Supreme Court affect other countries? What sort of structure can we expect whether or not there’s no Referendum and we stay in the European Union as it is? Election of judges?”
Response (Sir Michael Burton): “I’ll just pick out one or two points. The present English judge at Strasbourg was first appointed to the High Court and then allocated to Strasbourg, and I believe the same thing applied to our judge in the European Court, who was a member of the Court of Appeal. So it hasn’t happened. I’d be interested to know if anyone thinks it should happen to have judges be elected. As to Strasbourg, it still exists, and you can take your cases to Strasbourg as a last resort. But as long as we have the English Courts, you are expected to bring your human rights claims in this country first. I think you will get a better result here, because we can bring in the English dimension. As for the European Court, I don’t think anyone should get too excited about it. The European Court is only, at the moment, involved in certain areas, largely business, obviously, making sure we comply with Directives. Britain has complied far more strictly than most European members, as far as I can see, on competition law, pricing, etc. There’s no doubt about it that the European Court is supreme. Whatever we call our top court… the House of Lords or whether it is changing to the Supreme Court… it is subject to Europe on those areas where the European Court has jurisdiction – but that is not on the vast majority of issues decided by the UK courts. On purely domestic issues the European Court does not have any involvement.”
Question 4: Response (Sir Michael Burton): “I don’t think the rules come from the European Court, The rules come from the Commission and the Parliament and what they say, and that’s what we have to do. The European Court only gets involved in interpretation of the Directives, when the member countries say, ‘We don’t think it ought to mean that.’ And the European Court does sometimes listen and come to conclusions based upon what we would recognise as common law principles. The significant thing about European law is that it can be very flexible, whereas we have these well-established rules of construction, which we apply. There are no entrenched rules of construction in European law, so you can actually sometimes win in the European Court and get a British point of view and therefore, what we would like to see as a rational interpretation of a Directive. But as I said, I don’t think you should blame the European Court. The primary place that all of this is happening is in the Executive and the Legislative side, not the court.
A Speaker: If I can just add to that point myself, I heard a bit of a discussion this morning on the radio. The British Representative on the ECJ said that the role of the Court is to fill in the gaps. It is to elaborate on what the law is, which is of course, a very important role. A further comment was made on the debate program that it all turns in one direction which is a federalising direction. Therefore, the Court is an engine to European Integration and never the reverse.”
Response 3 (Sir Michael Burton): “Sometimes it can be persuaded to go the other way, because the wording of most Directives is so bland that the European Court sometimes can be persuaded to do what we might regard as justice. So I’m not sure it is driving the same way all the time.
A Speaker: I think the danger here is that the bureaucrats, when they know that something is unpopular, what they do is they say ‘Well, this won’t come in until 2012 or 2015’ because they know they’ll still be there but the ministers and the MPs know they probably won’t, so it’s very easy to agree with them. I think there is a danger that in a parallel kind of way, British judges will lean towards the European pressures when it comes to these kinds of decisions because they know it’s the coming thing.”
Response 5 (Sir Michael Burton): “The Human Rights Act is a great balancing act and there’s always something for somebody. Every Article tends a different way. Article 8, relates to interference with private life, can be used and is used by the victim to say ‘you aren’t giving me enough protection,’ and this is why the government is introducing more roles for victims in Criminal Courts’ opportunities to speak for claim compensation. So no, I think you’ll find the Human Rights Act pretty evenly balanced. There’s something in it for everyone.”
A Speaker: “I was very interested in what you said about the Human Rights Act in the sense that you made almost a protest that the judges were being drawn into place for questions. All judicial decision making is fundamentally based upon social and political realities. And all of the human rights victims are to draw the judges into where the act itself is set up, where almost any other decision that the courts make, and if you look at the underlying criteria, in case of a disputed issue reflects on a moral or social issue, the judge is in on that too… The human rights act makes it explicit. The second thing I would like to say is referring to the European Court of Justice… it is a political court with one basic object… In the US, how did the US grow from a situation in which the states were sovereign and the federal government was only a matter of the army… by using the English state common, which gradually sucked all of the sovereignties of the states…”
Response (Sir Michael Burton): “Can I leave the second half to others to comment on the political aspects and address the first question? America has never had the same system of precedent as we have, not least because it is federal and the State Courts don’t need to follow the Federal Courts. We have had a pretty firm system of precedent with the exception of great jurists like Lord Mansfield and Lord Denning, who have overtly found ways around problematic areas. Having been a judge myself for some years before the Human Rights Act came in, we have said to ourselves or possibly said in our judgement, this is not a decision I would like to have made, I’ve done my best to find a way around, but I can’t find for you, much as I’d like to, because I’m bound. If you think you can do better in the Court of Appeal maybe you can persuade them, but I can’t. But in the human rights area that response may not be available. It does mean that freedom carries risks for judges.”
Question 8: Response (Sir Michael Burton): “It’s a balancing act. As a judge, I have always in my mind the picture of the scales. Only a couple of days ago, I was judge in a case and I was saying, I’ve seen what goes on that side of the scale … the issue was whether its files on a teacher should have been destroyed as a local authority had promised that they would be, and then they said that they have had a new policy now and we would not destroy them until after a longer period for retention. I said ‘Well on the one side there is the protection of children, that’s fine. Isn’t there anything to go on the other side?’ In fact, I decided at the end that they should be destroyed because one of the important factors was for the Authority to comply with its promise. All the time, it is intended to be a balancing act. That’s what makes it so difficult for judges. We’ve got a much more difficult task than just following precedent; the balancing act is intended to be unfettered. That’s the advantage of it.”
Question 9: Response (Sir Michael Burton): “Again, this is a political question not really for me but I noticed Mr. Cameron has been saying similar things. The Human Rights Act is exactly that: each right is a right and you’ll find a corresponding right. ….. but duties have no place in the Human Rights Act at all. I think that’s a matter for a political discussion, not for me. I just do what I’m told… but perhaps amending the Human Rights Act to bring in more of a balancing act, that’s something for the politicians.”
Question 10: Response (Sir Michael Burton): “It’s not right to say that the Napoleonic Code underlies European law. It’s a new animal. It’s grown up and it can change even more as more countries, if they do, join Europe. Inevitably, it’s dominated not by the Napoleonic Code but what is called the Civil Law jurisdiction. I assure you that over the last 20 years, the Common Law jurisdiction has had a good go at it. The fact is that European law is primarily statute based. The directives are passed by the Convention or by Parliament which tell us what to do, and then the European Court decides how to interpret them. It’s very flexible in interpretation; it may be because the civil law (civil in the sense of descending from Rome, not from Napoleon) descend from Roman law. Civil lawyers were the dominant interpreters. Common law has a big place now in its interpretation. No, I don’t think that we are going to find that we are applying the Napoleonic Code in the British Courts now.”
Question 11 by Sheikha Shenda Amery-Khazal: “on concerns about the number of television programmes related to Sharia law taking precedence.”
Response (Sir Michael Burton): “I didn’t see any of those programmes. I suspect the programme you have mentioned was analysing the aims of some of the more extremist Islamic fundamentalists, because certainly they are reported to speak of wanting to bring Sharia law into those parts of Britain which have larger populations. But that’s only their political aim. I don’t think there’s the slightest chance of that. I think the more realistic question is how far the Human Rights Act may allow some reflection of Sharia law and I think the answer is that the Human Rights Act does allow freedom of conscience and freedom of religion and lack of interference in private life. So for example we have the case of wearing the veil, it’s again a balancing act. If someone wants to wear the veil in schools, the counterview will be towards conformity and enabling people to hear what the teacher is saying and all of the other points that are being made. So separately, those with strong religious beliefs, like the lady on British Airways who wanted to wear the crucifix when she was helping people to put their luggage on the scales and it was said that the chain might get in the way of the luggage. Inevitably, this kind of thing will come in. Religion comes up and of course we have the new religious discrimination laws, so yes, but not on the basis of introducing Sharia but on the basis of respecting the religious beliefs of an ever-growing minority.”
(Comment added from the floor referring to the fact that ‘wearing a crucifix does not have much to do with wearing a black scarf’.)
Question 12: Response (Sir Michael Burton): “Well you raise a number of points. First of all, (the farmer who shot a burglar) was prosecuted under criminal law; the Human Rights Act had nothing to do with it. The Human Rights Act would make sure that he had a fair hearing under Article 6. Criminal law is a matter of Parliament and criminal law did not give him the right to use excessive force and consequently he was convicted. I don’t think you are right necessarily to say that present changes would actually make the result any different. The answer to your question is if it would make it different, he won’t be able to benefit from that retrospectively because criminal law is not retrospective in the event of change.
(Regarding the recent Lawrence case) I mentioned that as an interesting, difficult issue. It shouldn’t be thought as something to be put on the other side. The Immigration and Asylum Tribunal assessed the fact that they had reports that he had been a model prisoner and he was supposed to be deported to Italy where he’d been born but he had no connections at all with Italy, and his family were all here, so he had an Article 8 right of his own. They did a balancing exercise. They didn’t just shut their eyes and say off he goes as the Government wished them to. That was their job. As I say, there is an appeal outstanding, so I don’t know what the result is going to be. All of these things, there are always two sides to it.”
Question 13: Response (Sir Michael Burton): “No, in criminal trials, the Human Rights Act doesn’t have a substantive role as opposed to a procedural one. Where the Human Rights Act comes in is that Parliament now has expressly to consider its impact before it passes any legislation, it has to have advice from a Parliamentary lawyer as to whether the new legislation complies with the Human Rights Act. So, before it’s passed, it has to be looked at. As I indicated to you, someone could bring a claim to the courts for a declaration – I have made one myself – that the law is inconsistent with the Human Rights Act. But you can’t use the Human Rights Act to say you’re not guilty of an existing offence, what you’ve got to do is to complain and to try and get Parliament to change their minds. It’s up to Parliament, yes, Parliament is passing more laws which are reversing the onus of proof. Each one is considered to comply with the Human Rights Act. They’re mostly in the counterterrorism area.”