29th November 2022
The former member of parliament Owen Paterson is taking a case to the European Court of Human Rights.
There is nothing wrong with this.
Indeed, there is everything right about him doing so.
Paterson is a European human aggrieved about his fundamental rights, and he has the protection of the convention that guarantees his human rights.
It is for such aggrieved persons that the convention exists.
Indeed, the convention protects the rights of all humans subject to the jurisdictions of signatory states, and some of the convention rights even extend to legal persons such as companies.
Paterson has as much right as any other person in a convention state to petition the Strasbourg court.
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But.
Paterson as a politician sought to remove the protection of the European Convention on Human Rights from other people.
In 2014, Paterson argued not only for the United Kingdom to take a restricted view of its obligations under the convention, but for the whole lot to go:
“Much of the problematical immigration into this country stems not just from the EU but from the European Court of Human Rights.
“This is exacerbated by the rulings of judges in the court at Strasbourg and by our own UK courts implementing the Human Rights Act.
“Repeal of the HRA and adoption of a new Bill of Rights, breaking free from the ECHR, would also relieve us of migrant pressure, include such absurdities as not being able to deport illegal immigrants who come to Calais, because – according to our judges – France is not a ‘safe’ country for asylum seekers.”
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Now Paterson – through his lawyers – says he is going to Strasbourg.
Presumably this means he now believes that we should not be “breaking free” from the convention just yet, and that he would rather like a non “exacerbating” judgment from the judges at Strasbourg.
To the credit of his lawyers, they appreciate (and anticipate) the sheer absurdity of their client’s position:
“The irony that Mr Paterson, a vocal opponent of European institutions, should be seeking the help of the ECHR is not lost.”
Well.
You could say that.
And the sentence that then follows in the lawyers’ press release is just beautiful:
“But he has no other choice, as the Government has yet to meet its promise of repatriating human rights law to Britain, hence the application to Strasbourg.”
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He has no other choice.
And that is the very point of human rights law, and of international human rights conventions and international human rights courts.
They are all there as a last resort, for those with no other choice.
When you have a grievance that local forms of law have failed you, and when you believe fundamental rights should mean that your legal position is different from how you have been treated, then this is when you should be able to rely on your human rights in accordance with international law instruments, and seek a remedy at an international court.
And it should not matter if the right you are relying on is about fair trials, or torture, or free expression, or privacy.
Those migrants about whom Paterson complained in 2014 also “had no other choice”.
Various people have “had no other choice”.
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Paterson’s petition to the Strasbourg court may not succeed.
His complaint about parliamentary rules and procedures may not gain the favour of the Strasbourg judges.
The complaint is somewhat ambitious:
“The applicant complains that his Article 8 rights were infringed, as the public finding that he had breached the Code of Conduct damaged his good reputation, and that the process by which the allegations against him were investigated and considered was not fair in many basic respects.
“Communicated under Article 8.”
(Yes, Article 8 – and it is not clear why the complaint is not (also) under Article 6.)
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Paterson deserves a fair hearing of his petition.
Paterson is right to ask the Strasbourg court to apply international human rights standards to the parliament of the United Kingdom to see if our parliament is found wanting.
He is right not to be swayed by notions of “parliamentary supremacy” and “national sovereignty”.
Other politicians have only managed to get the parliament of the United Kingdom to pass legislation giving effect to the European Convention on Human Rights.
Paterson wants to go a grand step further and subject parliament itself to the convention.
He wishes, to adopt some jargon, for our “political constitution” to be judicialised according to European legal standards.
If he succeeds, Parliament will be obliged to change its own processes by a European institution.
Of course: it is a pity that Paterson sought to prevent others from protecting their rights at Strasbourg.
However, if he succeeds in this claim, he may do more to subject our polity as a whole to the European Convention of Human Rights than any politician since the Human Rights Act 1998 was passed.
This blog wishes him luck.
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“The complaint is somewhat ambitious”
Brutal.
If he is not successful in his first attempt, will he be seeking Leave Means Leave to appeal?
Reminds me a little bit of this choice bit of hypocrisy from another Tory MP having to live with the consequences of his own actions: –
https://www.theguardian.com/law/2018/dec/27/its-completely-wrong-falsely-accused-tory-mp-attacks-legal-aid-cuts
Said actions being the imposition of Austerity measures that suddenly had the consequence of adversely impacting on himself personally now.
“(Yes, Article 8 – and it is not clear why the complaint is not (also) under Article 6.)” – Is Article 6 the right to a fair trial?
Yup.
To forestall any objection that Paterson was not charged with a crime, Art. 6 explicitly applies not only to the determination of criminal charges but to the determination of a person’s “civil rights and obligations”.
@Ultan Stephenson The reason is simple. Political rights, such as the right to stand for election, to retain one’s seat in Parliament, to take part in Parliamentary proceedings and exercise the functions of an MP, etc., are not considered to be rights of a “civil” nature for the purposes of Art 6 (Pierre-Bloch v. France, 1997; Refah Partisi and others v. Turkey (dec.), 2000; Papon v. France (dec.), 2005).
Excellent blog. Is his applicatiin to ECHR published anywhere?
https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22002-13901%22%5D%7D
It’s in the blog post.
@Andrew T @Michael Grange That’s actually the ‘Legal Summary’ of the Communicated Case. The Communicated Case itself, which gives some more details of the facts, is at https://hudoc.echr.coe.int/eng?i=001-220307.
It’s rare that I savour someone’s utter hypocrisy, but I did enjoy this blog. Especially the last five words.
Snort! Snort! 🤣
Well I hope this comment is not irksome…… but how I laughed.
A classic definition of hutzpah is someone killing their parents and asking for clemency due to being recently orphaned.
Can anyone think of a closer real life example than Patterson here?
Beautifully written. I admire the way you make a salient point without mockery or undue schadenfreude. It’s a model the rest of us might try to emulate. The point is made, forcefully, and one hopes this appellant may learn a little wisdom from the whole process.
“It’s a model the rest of us might try to emulate.”
Why? Schadenfreude and mockery are – in the right circumstances – powerful and entirely legitimate ways to make or emphasise a point.
Some people need to learn that sometimes they reap what they sow: the likes of Paterson in particular really need their noses rubbing in their crap.
One of your best David!😊 – wonder if Boris has read it??
As with much of this Government’s activity – all talk and no action. Which is why he has no choice!
Beautiful! Thanks. It reminds of Ayn Rand enrolling in Medicare and Social Security when she needed them.
Out of interest, what is the mechanism by which Parliament is “obliged” to change its processes (as opposed to, say, the Government merely being obliged to introduce legislation or motions to change those processes)?
@Birch Thompson In principle, the obligation to comply with judgments of the ECtHR rests on the state as a whole (under Article 46 ECHR). But it’s true that if the Government refuses to comply by introducing suitable legislation etc., then there may be nothing the domestic courts can do, and little the Council of Europe can do either (other than continuing to put pressure on the Government and ordering it to pay damages from time to time), just like in e.g. the prisoners voting cases.
The reason is simple. Political rights, such as the right to stand for election, to retain one’s seat in Parliament, to take part in Parliamentary proceedings and exercise the functions of an MP, etc., are not considered to be rights of a “civil” nature for the purposes of Art 6 (Pierre-Bloch v. France, 1997; Refah Partisi and others v. Turkey (dec.), 2000; Papon v. France (dec.), 2005).
I think you may need to look at those cases in a little more detail rather than dismiss all MPs’ functions under a catch all blanket.
A brief glance suggests the first two are about electoral disputes, and the last seems to be about war crimes, and actually found there had been a violation of Article 6.
I don’t have time just now to look at them more thoroughly.
It is a ridiculous notion to suggest that MPs accused of crimes should not be entitled to a fair hearing, just because those crimes are covered by parliamentary privilege and must be dealt with in the House.
I will go on to add that it ought to be a ridiculous notion to suggest that a parliamentary committee will not give a fair hearing, but I have not observed them well enough to state that for certain.
@Hairlyoon Actually, in Hoon v. the United Kingdom (2014) (https://hudoc.echr.coe.int/eng?i=001-148728), the Strasbourg court dealt with precisely the same scenario as here – the Parliamentary Commissioner for Standards process – and held, referring to Pierre-Bloch among other cases, that Art 6 did not apply. “According to well established case-law, the right to stand for election and to keep one’s seat is a political right and not a “civil” one within the meaning of Article 6 § 1 … Accordingly disputes relating to the arrangements for the exercise of a parliamentary seat lie outside the scope of that provision. Therefore, the parliamentary proceedings in question, which were concerned with investigating possible breaches of the Code of Conduct of Members of Parliament, did not attract the application of Article 6 § 1 of the Convention, since they did not determine, or give rise to, a dispute as to the applicant’s “civil” rights for the purposes of Article 6 § 1. Accordingly this part of the application, including the complaint relating to lack of access to court to challenge the legality of the parliamentary proceedings, is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.”
It’s thus not me who applies a “catch-all blanket” but the Strasbourg Court itself – as is reflected in, for example, the Guide on Article 6 (civil limb) (https://www.echr.coe.int/documents/guide_art_6_eng.pdf) at [82]: “Political rights such as the right to stand for election and retain one’s seat (electoral dispute: see
Pierre-Bloch v. France, 1997, § 50), the right to a pension as a former member of Parliament (Papon v. France (dec.), 2005), or a political party’s right to carry on its political activities (for a case concerning the dissolution of a party, see Refah Partisi (The Welfare Party) and Others v. Turkey (dec.), 2000), cannot be regarded as civil rights within the meaning of Article 6 § 1. Membership of and exclusion from a political party or association are not covered by Article 6 either (Lovrić v. Croatia, 2017, § 55). Similarly, proceedings in which a non-governmental organisation conducting parliamentary-election observations was refused access to documents not containing information relating to the organisation itself fall outside the scope of Article 6 § 1 (Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia (dec.), 2009). The Court has confirmed that matters relating to conduct in political office, in particular the duty not to place oneself in a conflict of interests, are political rather than civil (Cătăniciu v. Romania (dec.), 2018, § 35)”.
Nor is it necessary to “look at [the cases] in more detail”. The approach of both the ECtHR and the CJEU – as has been noted by many academics, and most recently by Lady Rose at [13] of this lecture: https://www.supremecourt.uk/docs/ukael-lady-rose-speech-23-May-2022.pdf – is to lay down principles which are then treated much like statutes of general application, irrespective of factual distinctions between cases. One classic example is the statement in [29] of Niemietz v. Germany (1992) – an Article 8 case about a search of a lawyer’s office – that “it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world”, which has subsequently been cited as a general formula and used to justify the application of Art 8 to numerous employment-related issues.
Lastly, it might indeed seem “ridiculous” to suggest that there shouldn’t be a fair hearing, but that isn’t what’s being suggested. There is arguably an entitlement to fair procedures, but it derives not from Art 6 but from Art 8, on which Paterson consequently places reliance. In particular, if the Court accepts his argument that the Standards Commissioner process seriously affected his private life (applying the ‘threshold of severity’ test laid down in Denisov v. Ukraine [GC] (2018): https://hudoc.echr.coe.int/eng?i=001-186216 at [107]-[117]), then it is well-established that Art 8 will require that “the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests” (see Fernández Martínez v. Spain [GC] (2014): https://hudoc.echr.coe.int/eng?i=001-145068 at [147], and the Guide on Article 8: https://www.echr.coe.int/documents/guide_art_8_eng.pdf at [4] and [13]).
The ECtHR has also pointed out that, in any event, the desirability of giving Art 6 an autonomous application to a particular kind of proceedings “does not give the Court power to interpret Article 6§1 as though the adjective “civil” (with the restrictions which the adjective necessarily places on the category of “rights and obligations” to which that Article applies) were not present in the text” (see the Grand Chamber judgment in Ferrazzini v. Italy (2001): https://hudoc.echr.coe.int/eng?i=001-59589 at [30]). Thus, the reason why Art 6 doesn’t apply is not because “those crimes are covered by parliamentary privilege” – on the contrary, where privilege applies to a matter falling *within* the scope of ‘civil rights and obligations’, that constitutes an interference with, and potentially a breach of, the right of access to justice (see most recently Bakoyanni v. Greece (2022): https://hudoc.echr.coe.int/eng?i=001-221836). Rather, the reason is simply that the relevant ‘right’ – namely, the right of an MP to take up and retain his seat and exercise the functions that go with that seat – is not ‘civil’ but ‘political’ in nature.