The Conjoined Twins case came to the Court of Appeal at the end of August 2000, just as Robert Walker and I were finishing a two-week stint of vacation duty. We were invited to stay on to hear it, on the assurance that it would be likely to last one and a half days at most. I said that I could not sit on the following Tuesday afternoon, because I had promised to go to Oxford then to speak to a Howard League conference about the likely effect of the Human Rights Act 1998 on prisoners’ rights. This was a topic of great interest because the Act was due to come into force in four weeks’ time.
In the event, we sat on the Monday, Tuesday morning and Wednesday of that first week, by which time counsel’s submissions were complete except on issues concerned with the legality of the proposed operation. We then adjourned until the following Tuesday for two further days of argument on the very difficult criminal law issues. When these had been completed we announced that judgment would be delivered nine days later. The timetable was dictated by the fact that at any moment the condition of the twins might deteriorate. We also knew that a panel of seven law lords was being assembled to hear an appeal against our judgment (which never took place) at the beginning of October.
My talk to the Howard League conference on 5th September 2000 is also with the papers I have lodged at the UCL Judicial Institute. I started by recalling how the Strasbourg court’s interpretation of ECHR Article 6 in Golder had revolutionised the way in which we looked on prisoners’ rights. I then explained how English judges had never previously been in the business of deciding whether acts done by public authorities were necessary in a democratic society. Now a judge would have to decide in the last resort whether the Convention had been violated in any particular case, and a decision of this kind in a controversial case would be a much more obviously political decision than most of the decisions we had been accustomed to making in the past. I added that there would now be certain minimum standards of treatment for those in custody which the English courts would be insisting should be observed by everyone.
I described some of the case law on ECHR Article 3, and observed that we would not be bound to follow decisions taken in Strasbourg 20 years ago if we felt that times had moved on:
“Attitudes to racism, like attitudes to certain types of sexual conduct, have changed over the years, and we will be bound to apply what we think are contemporary standards when we interpret the Convention. This will mean, of course, that our judgments will inevitably be seen to have a political content when they are considered by commentators who are not very happy about contemporary standards and would like to put the clock back a number of years.”
I said there were plenty of such people about. There still are.
On ECHR Article 5, I mentioned magistrates’ new obligation to give reasons, on bail decisions for example, and how the Strasbourg-inspired process of moving all the decisions on the dangerousness of discretionary lifers away from the executive and into the hands of a court (including, for this purpose, the Parole Board) was now nearly complete.
On ECHR Article 6 I described how in Golder the Strasbourg court had rejected the UK Government’s Ritz Hotel argument to the effect that Article 6(1) only conferred a right to a fair hearing to those who succeeded in getting to a court. Before Golder there had been a very strong feeling that the ECHR was not concerned with prisoners:
“Rather like Magna Carta through the eyes of the authors of 1066 and All That, the Convention was believed to contain a lot of implied reservations (‘these Convention rights belong to everyone except convicted prisoners’).”
All that had now changed.
So far as ECHR Article 8 was concerned, in Golder the Strasbourg court roundly rejected the argument that the restriction on a prisoner’s correspondence in such a case was in accordance with the law, and that it fell within its margin of appreciation to judge that this was necessary for the prevention of disorder or crime. The later Strasbourg cases of Silver and Campbell built on the foundations laid by Golder, and the relevant parts of our Prison Rules had been radically changed as a result of all these decisions.
Similarly, there had already been a number of changes to Prison Standing Orders to accommodate the effect of Strasbourg decisions under Article 10.
“The general effect of [these] decisions has been to limit the occasions on which prisoners can legitimately be denied access to books or radios or writing materials. Blanket bans are not allowed. Each restrictive decision has to be justified on its own merits.”
I said that I was not one of those judges who believed that the Convention was not going to make very much difference to our law. It was bound to make a difference because it would enable us in a great many cases to look very carefully at the justifications that are put forward to justify the violation of a person’s convention rights. And I ended by saying:
“Finally, a decision has now been made by our politicians that we should move from a freedom-based law to a rights-based law, because our freedom-based laws haven’t always proved very successful in protecting the rights of unpopular minorities. It is a fairly momentous step, and I believe that every senior English judge will be very conscious that the outside world will be watching carefully the way we undertake the new responsibilities Parliament has given us. I only hope that the process will not lead to English judges being appointed or promoted for their perceived political biases and not for the quality of their judgment.”
There is as yet no sign of that, thank goodness. But I believe there are plenty of other things in that talk to which we should all return when battle is joined, if it has to be, on the contents of a new British Bill of Rights. This will be the subject of a further blog.