Lord Irvine

The talk was premised on the interpretation of Section 2(1) of the Human Rights Act:

2 (1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights …

This has been taken by the UK judiciary to mean that they must follow Strasbourg’s rulings; Lord Irvine protests that the UK judiciary “should have considered and respectful regard for decisions of the European Court of Human Rights, but neither be bound nor hamstrung by that case-law.” This would result, he says, in contentions between the UK and Strasbourg being resolved at the “State, not judicial, level”.

That is to say: when we our law is not in accordance with Strasbourg it is for Parliament to deal with, not the courts.

Section 2(1) was placed in the act with careful deliberation:

This provision is fundamental to the pivotal new relationships which the Act establishes between our domestic Courts, Parliament and the ECHR.

Lord Irvine is saying that 2(1) is the fulcrum on which the new constitutional relationship between Parliament, the UK judiciary, and the Strasbourg court, must balance; but at the moment he sees the UK judiciary acquiescing as the balance is tipped to Strasbourg’s end.

This raises a question, which Lord Irvine frames in these terms:

What precisely is it that our domestic Courts are doing  when adjudicating under the HRA? Are they merely seeking to predict and mimic what the decision of the Strasbourg Court would be if presented with the facts of the case before them – in effect, are they simply agents or delegates of the ECHR ? Or are they doing something quite different (and more profound) – interpreting and explaining the content and meaning of the Convention rights within the sovereign legal systems of the United Kingdom?

The answer, which will be no surprise, is that the second of the two answers is correct. The legislation does not bind the courts to follow Strasbourg, it binds them to decide for themselves with an awareness of Strasbourg.

The crucial phrase is “take account of”, which ”is not the same as ‘follow’, ‘give effect to’ or ‘be bound by’.”

This, as well as Section 4, is part of the preservation of Parliamentary Sovereignty in the act.  It is Parliament’s job to resolve, if they want to, conflicts between us and Strasbourg: “It is Parliament, and not the Strasbourg Court, which is supreme.”

In AF v Secretary of State for the Home Department Lord Rodgers expressed the court’s view in straightforward terms:

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.

Lord Irvine’s view is that the decisions of Strasbourg, even if they are trite law, do not alter the UK courts’ duty under section 2(1). Irvine is aware of the arguments against him, that bringing rights home means following Strasbourg, and that we have international obligations. He affirms that decisions of the Grand Chamber should be regarded as highly persuasive, but,

the existence of such a decision can never absolve the domestic Judge from the high Constitutional responsibility incumbent upon him under s.2 … it is not open to him simply to acquiesce to Strasbourg.

In the case of AF the courts felt that Strasbourg was wrong; that they had prioritised the rights of terrorists over the rights of their potential victims. He says that judges following law they feel is wrong will undermine our integrity, and damage the interests of the people of Britain.

And crucially 2(1) does not oblige them to do this.

As he says, “The Judges should not abstain from deciding the case for themselves simply because it may cause difficulties for the UK on the international law plane.” As we will see, this puts his view of the constitution in conflict with that of some judges; but on this narrow issue there he may be correct.

Lord Philips and Lord Judge

Giving evidence in November to the Joint Committee on Human Rights, the two most senior members of the British judiciary discussed the extent to which they feel themselves bound by the jurisprudence of Strasbourg. Lord Philips said something that sounds remarkably similar to the position advocated by Lord Irvine,

Parliament is supreme in this area; it does not have to have regard, as a matter of domestic law, to decisions of the Strasbourg court. If we rule that a particular piece of legislation is not compatible with the Convention, that is the message we convey; what is done with that message is entirely up to the Government.

But as the case law shows, and as Lord Irvine demonstrates, there is much deference to Strasbourg in the English courts. But, what became clear through the evidence of Lord Judge in particular was that the principles are not in dispute. There are a few small areas of dispute: namely terrorism and deportation, prisoner votes.

The issue arises only when there is a conflict on where to draw the line; Parliament wants the courts to be less in tow to Strasbourg in order to strengthen its own position.

The judges’ response to this was that Parliament would have to change the statute. And that change could easily remove the influence of Strasbourg. As Lord Judge said, in response to Dominic Raab MP:

We will decide whatever conclusion we come to on the law as it stands; you will have to address the question of what you want the law to be. Ultimately, as I said earlier, you decide that; we do not

Lord Steyn

This goes to the heart of a larger constitutional debate: the dynamic between Parliamentary Sovereignty and the Rule of Law. Judges feel themselves bound to Strasbourg through the system of precedence, Parliament feels that judges ought to be bound by the supremacy of domestic legislation. The ECHR was incorporated into domestic law by Parliament; by Parliament it can be removed.

There is, at the heart of this argument on Human Rights, a conflict between the Sovereignty of Parliament and the Rule of Law. If the courts continue to ignore, in Lord Irvine’s argument, the meaning of 2(1) they will be accruing power to themselves from the legislature.

This conflict has been identified by Vernon Bogdanor, in his book The New British Constitution, and in numerous articles, where he states that there is a conflict between Parliamentary Sovereignty and the Rule of Law because the judiciary has been empowered by the Human Rights Act.

Such arguments are old, and repetitive. When judicial review became more commonplace David Blunkett complained that the executive was being hampered by the new and trendy powers in the court. Lord Bingham wittily replied that judicial review, with all its Latin terminology, was hardly new.

And in the case of Pierson Lord Steyn, a famous enumerator of constitutional jurisprudence, said,

Parliament does not legislate in a vacuum … unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.

And in Simms although Lord Hoffman allowed that Parliament could legislate in a way contrary to Human Rights, he made clear that,

fundamental rights cannot be overridden by general or ambiguous words … the courts presume that  even the most general words were intended to be subject to the basic rights of the individual.

The most well known instance of the division between Parliament and the Courts is the Jackson hunting case. Here a challenge was brought to the House of Lords about the Hunting Ban, which claimed that the Parliament Act 1949 was invalid as it had been passed using the Parliament Act 1911, which was not something the 1911 Act was intended for.

During the decision some of the Law Lords made clear that the old Dicean notion of Parliamentary Sovereignty was no longer the certainty that it once was. Dicey believed that “Parliament … has, under the English constitution, the right to make or unmake any law whatever.” And although the authority of Picking v British Railway Board was quoted, which dicta says that the courts have “no power to declare enacted law to be invalid”, misgivings were expressed about the absolute nature of Parliamentary power.

Lord Steyn made the point most clearly: referring to the changes to the constitution brought about by the Human Rights Act, and the new obligations on Parliament to protect fundamental rights, he said,

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Lord Bingham

Lord Bingham was the greatest modern advocate of the Rule of Law, and he saw the European convention as being “as good a list as any” of the fundamental freedoms that a country bound by the rule of law ought to uphold. He made the point many times, most notably in his book The Rule of Law, but it can be understood clearly, and shortly, in this lecture given as a Commemoration Oration given at King’s College London in 2007.

His great contribution to the rule of law was to define international obligations as being a core part of the definition, and this is the principle that underpins the viewpoint that the judiciary in the UK must pay due heed to decisions of the Strasbourg court.

But he also defined Parliamentary Sovereignty with a new clarity:

What the principle means is that Parliament has, in the United Kingdom, no legislative superior. The courts have no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament.

And although there are practical limits on the sovereignty of parliament, as Professor Bogdanor has pointed out, Lord Bigham says that all of these,

involve a curtailment of the Westminster Parliament’s power to legislate, but that curtailment takes effect by express authority of the Westminster Parliament which, at least theoretically, it retains the power to revoke.

If the conflict between the judiciary’s observance of Strasbourg’s jurisprudence and Westminster’s will is not resolved, then Parliament can simply take back control of this are of law by leaving European Court of Human Rights. It is almost inconceivable that this is what will happen.

Conclusion

In their evidence Lords Judge and Philips drew lines between the legal and the practical; they emphasised that litigants who did not get justice here could go to Strasbourg in any event. And they said that there was scope for 2(1) to be clarified, to make it very clear that judges must only take account of those decisions, not follow them all. Lord Judge thinks that the question is debatable, and that it will fall to be decided within the next twelve months. Lord Philips is more obviously keen to follow Strasbourg, and quoted liberally from Sir Nicholas Bratza.

But there may come a tipping point. And Lord Bingham gives a helpful answer. When responding to the comments of his colleagues in Jackson he respectfully declined to agree, stating at King’s College London,

It has to my mind been convincingly shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.

If there is sufficient parliamentary disquiet about the meaning of 2(1) then Parliament will be able to change the wording. The Supreme Court, it seems, will not win this constitutional tug of war with the legislature. This is not guarantee of victory for Cameron, nor does it endorse a tabloid view.

If Parliament changes the statute and precludes the courts from always following Strasbourg a contention will arise with Strasbourg, and Parliament will be left to resolve it. David Cameron’s recent speech argues for a small extension of the margin of appreciation to preclude the ECHR from influencing the nature of UK voting laws; it’s the same principle as not expecting Strasbourg to strike down the French burka ban. The resolution of that argument may well have implications for the balance of powers at home as well as abroad.

It is an interesting case for those seeking entry to the UK because it highlights the considerations that Immigration Officials will take into account when making their decision (i.e. the balancing act between the overall interests of immigration control and the rights of others). It also demonstrates the issues the Tribunals and Courts will take into account when determining whether such a decision is proportionate.

The Facts

There are five appellants. Three of them are children of the sponsor’s second marriage which ended in divorce in 1996. Two of them are children of the sponsor’s half-brother who also divorced in 1996. From 1996, the sponsor and her half-brother shared a home in Somalia looking after the five appellants together.

In 1997, the sponsor remarried her first husband. He entered the UK in January 2003 and applied for her to join him in 2004. The sponsor was given leave to enter under a spouse visa. The plan was for her three children to follow, but her husband insisted that he was not going to apply for them to come as his dependants because he did not want to look after someone else’s children.

In 2008 the sponsor’s half-brother was killed. A neighbour took care of the five children and contacted the sponsor telling her that he was moving to Ethiopia to avoid the violence in Somalia. The children were moved to Ethiopia.

The children (all minors at the time) made applications for leave to enter the UK in April 2009, but they were refused permission on 2 June 2009. The Entry Clearance Officer (ECO) found that they did not meet the criteria in the Immigration Rules for admission of family members because the sponsor did not have refugee status (she was in the UK under a spouse visa). Further, they would not be able to live in the UK without having to rely on public funds.

The appellants appealed against this refusal to the First Tier Tribunal, claiming that there was a breach of the right to family life.

First Tier Tribunal’s Decision

The Immigration Judge was satisfied that there was family life of a limited kind and that the decision of the ECO interfered with family life in a significant way in that it prevented the family from living together. However, he also stated that the decision to refuse the applications was lawful. The issue in question, therefore, was whether the refusal was proportionate to the overall interests of immigration control and to the rights of others.

It was held that the refusal was proportionate. It was observed that disrupting a family life that has gone on for five years in this country by removing an individual was very different from allowing such family life to recommence after five full years when the sponsor and children have not lived together at all, by allowing them to enter. It was regarded as “very relevant” that immigration control involved consideration of public funds, which in this case would be considerably affected if the appeals were successful.

The appellants appealed against this decision to the Upper Tribunal.

Upper Tribunal’s Decision

The appeal was dismissed. The Senior Immigration Judge did not accept the argument that the First Tier Tribunal’s failure to consider whether it would be reasonable to relocate to Ethiopia with the appellants was fatal to the decision reached.

It was further added that the obligation to promote family life between the sponsor and the appellants had to be measured against the legitimate public interests. On the facts of this case, the Upper Tribunal held that the legitimate public interest outweighed the obligation to promote family life.

Appeal to the Court of Appeal

The appellants argued:

It was implicit in the determination that the sponsor could not reasonably be expected to relocate to Ethiopia, and therefore the refusal of entry involved a breach of the right to family life.

The Court was not persuaded by this argument, stating that it did not consider that when the Immigration Judge described the ECO’s decision as ‘significant’ because it prevented the family members from living together, that he meant to address the separate issue of whether they could live together elsewhere.

If this first argument failed, the second argument was that the Immigration Judge failed to address the issue whether family life could reasonably be expected to be enjoyed elsewhere. To fail to do so, it was argued, was a fatal flaw in his decision.

It was submitted by the respondent that the Immigration Judge took into account the gravity of conditions if the family lived together in Ethiopia, but did not consider them to be so serious as to make the refusal of entry disproportionate in all the circumstances.

The reasoning to support the Immigration Judge’s conclusion was not sufficiently explained. For example, the Immigration Judge did not consider the sponsor’s support in Ethiopia, despite the sponsor raising it and the respondent submitting their suggestions.

It was concluded that the appellants’ reasons challenge was well-founded, and so on this ground the decisions of the First Tier and Upper Tier Tribunals were set aside.

However, the Court was not convinced that on full analysis the appellant’s appeals must necessarily have succeeded. It was held therefore that the case be remitted for a re-hearing by a fresh Immigration Judge who will be limited to considering the circumstances relevant at the time of the decision to refuse entry.

Conclusion / Lessons Learned

This case demonstrates the issues that Immigration Officials and Tribunals will consider when determining if someone should be allowed entry and if such a refusal was lawful. Legitimate public interests (e.g. funding) are regarded as very relevant to immigration control. Further, although the best interests of any children involved are a consideration of high importance, they will not necessarily be determinative of the outcome.

The above is something to keep in mind when you are seeking a family reunion within the UK. You must have a strong argument and be able to demonstrate that your case outweighs the legitimate public interests.

In addition, when considering an appeal, it is important to look at the adequacy of reasons provided for the decision in question, as this may make all the difference between the success or failure of your appeal.

From 14 February 2012, applicants applying under Tier 2 and Tier 5 and their dependants, who are in the UK, will be able to apply online for an extension of their visa (further leave to remain).

If you want to apply to apply online, you should complete the application form and make payment online. If you wish to use the premium (same-day) service, you must make an online booking for an appointment at a public enquiry office.

What you Need for a Valid Application to Extend your Visa

This depends upon whether you are applying under the non-premium or premium route.

If you are applying under the non-premium route, you must:

• Submit any required supporting documents that have been specified as mandatory within 15 working days of submitting your online application; and
• Book and attend an appointment to provide your biometric information (your photograph and fingerprints).

However, if you are applying under the premium route, you must submit any supporting documents specified as mandatory and attend an appointment to provide your biometric information within 45 working days of submitting your online application.

As you will see, it is therefore not necessary to submit your supporting documents with your application online. However, you must ensure that you do submit these documents and within time!

A Reminder Regarding Settlement…

The time you spend in the UK under your Tier 2 visa, including any extension, can be included when calculating the five year continuous period in the UK that you must comply with when applying for indefinite leave to remain (settlement).

Unfortunately, however, the time spent in the UK under a Tier 5 visa will not count towards any settlement that you may apply for in the future.

EEA Residence Cards

An EEA residence card is given to the non-EEA family members of EEA/EU/EC nationals to allow them to live and work in the UK.

The Facts

Idezuna is a citizen of Nigeria.

• 23rd April 2004: He married a Portugese citizen
• April 2004: He was issued with a residence card because he was a family member of an EEA national.
• 13th September 2009: The card expired.
• 15th March 2010: They divorced.
• 15th November 2010: Home Secretary refuses application for a residence card to show he can live in the UK permanently.

Reasons for the Refusal

The Home Secretary gave two reasons for refusing the application:

1. there was a lack of evidence to show that Idezuna’s ex-wife was exercising treaty rights at the time of the separation;
2. there was a lack of evidence to show that he had resided in accordance with the Regulations for a continuous period of five years.

Appeal

This decision was appealed to the First Tier Tribunal, which dismissed the appeal. The Immigration Judge held that “it had not been shown that the appellant’s ex-wife had been exercising treaty rights in the five years immediately preceding the divorce.” It also held that he had not shown that he had been living in the UK continuously since the marriage.

The Upper Tribunal

The Upper Tribunal ruled that the First Tier Tribunal had “erred in law”: it was wrong to focus exclusively on the five years immediately before the divorce. By only looking at the period 15th March 2005 – 15th March 2010 (this is where the timeline above will come in handy) it failed to recognise that the ex-wife had been exercising treaty rights from the date of the marriage, which is a period longer than five years.

The case of Lassal from the European Court of Justice should have been followed. This requires the FTT to identify periods of qualifying residence as including periods before the date of the relevant directive coming into force.

This meant that the couple acquired permanent residence five years after the marriage, which by looking at the helpful timeline above we can see was on 23rd April 2009.

This means that Idezuna had an alternative route to qualification. Although he did not meet the requirements for a retained right of residence, he had been a non-EEA family member of an EEA who had exercised treaty rights for five years.

The case was then sent for another hearing. He had shown that his ex-wife had exercised treaty rights, but he had not had a chance to show evidence that he had been continuously present in the UK.

This Case

Idezuna showed his Nigerian passport, with date stamps showing his movement. He produced documents proving his residence in the UK for the necessary period, which included: a tenancy agreement, telephone bills, bank accounts, credit card statement, Inland Revenue documents.

Having seen these documents the Home Secretary said that she accepted that Idezuna had been continuously resident for the relevant period.

General Observations

The Upper Tribunal gave some guidance, which they called “general observations”, about the issues that arose in this case. The main point of this guidance is about the “particular consideration” to give to the time spent in the country, which can be based on historical facts:

for example, once the appellant had established that his wife was exercising Treaty rights for five continuous years since the date of marriage (and before he was divorced), then … he was from that date someone who had a right of permanent residence which could not be broken by absence from the UK unless in excess of two years.

Whilst often it may not be in dispute that the applicant/appellant family member has been in the UK during the relevant period, that is not something which can be taken for granted and it may sometimes become necessary on appeal for the tribunal judge to make a finding on the matter based on the evidence.  However, if, as here, it has not previously been raised by the respondent, then procedural fairness dictates that an appellant must be afforded a proper opportunity to deal with the issue.

The term “spouse visa” is used to refer to the type of visa that the husband or wife of a British citizen or person who has settled in the UK must apply for if they want to join their respective spouse in the UK.

Your spouse, with whom you are seeking to join in the UK, must either be currently living and settled in the UK, or if you are currently outside the UK, they must be returning to the UK with you to live permanently.

You must be able to show several requirements in order to be eligible to make an application for this type of visa, including evidence that you are legitimately married.

If you are successful with your application, after two years you can apply to settle in the UK permanently.

Please note:

• For those seeking to enter the UK to join their civil partner, you must apply for a civil partner visa.

• If you are engaged to be married, you will not be eligible to apply for a spouse visa, and must instead apply for a fiancé(e) visa.

• If your spouse in the UK is here on a temporary (limited) basis, i.e. under a student visa or work permit, and does not have permission to settle permanently, you must apply for a dependant visa.

In the court’s defence he raises three points: first, that the court has done good work over many years in dozens of countries; second, the backlog of 150,000 cases is slowly getting better; third, he talks about the purpose and the history of the court as a guiding light in formation of global democracies.

However, he recognises that the argument between the British government and the Strasbourg court is about one or two cases: prisoner votes and the deportation of Abu Qatada being the pertinent examples. Faced with these criticisms it doesn’t follow to talk about the freedom of speech in British cases, improved conditions in eastern Europe, and the civil liberties that have been upheld in former communist countries. We are not a former communist country; this is not a freedom of speech issue.

I agree with Sir Nicholas: the court has upheld, in thousands of cases, the rights of people all over Europe and beyond. But that is not what the British government takes issue with.

His argument at times rest on the fact that other decisions about the UK were good ones, pointing out that the government cannot agree with them all, and that it is a small number of decisions that go against the UK. But that again is not the issue at hand: it doesn’t mean that the court didn’t intervene.

No one is saying that freedom of speech as upheld by the court in various cases isn’t a good thing: but it is a valid argument to say that prisoner votes ought to be decided by a sovereign parliament, and should not be dismissed as part of a wider misunderstanding of human rights seen most often in the tabloid press. Being pro Human Rights, and pro the court, doesn’t mean that we can’t discuss the issue of prisoner votes and the margin of appreciation. It’s not about the substantive issues; it’s about who decides them.

Carl Gardner expressed this very well on his Head of Legal blog today:

I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist.

In the Hirst case and a couple of those which have followed, the court ignored one of its own key legal principles (the “margin of appreciation” it supposedly allows states), preferring to micromanage policy throughout Europe. The same sort of thing happened, I’d argue, in the DNA database case, S v Marper.

If the court can check its own occasional excessive interventionism, it will deserve our respect all the more.

Sir Nicholas, it seems to me, takes a similar approach to those MPs and newspapers who are absolute about this issue – he is just on the other side of the argument. Instead, a more robust argument would recognise the nuances and the detail. Disproportionate views are expressed, but that does not invalidate the criticism, just as an apology for the general work of the court is no response to the accusation that it has interfered in a few cases.

On the UK Human Rights blog Adam Wagner has written:

Pulling out of the Court or the European Convention because the public are concerned about immigration controls and prisoners voting would be to jettison, unnecessarily, everything which is good about the court and the UK’s role in developing international human rights standards.

But this approach risks being blind to the details because of the principles: there is no risk of us leaving the court, just asking for reform. He is right to say that “Wherever the blame lies, the debate over human rights law in the UK has become toxic.” But that is why the extreme views against the court should not be used to mask a legitimate debate about specific issues, notably the margin of appreciation. As Dominic Raab said, “The tabloids blame everything on the Human Rights Act (HRA) and, in my view, the NGOs think it’s perfect. I think there’s a middle ground.”

It makes little sense to allow bad decisions to go unchallenged because other decisions have been good; the fact that the court is a force for good doesn’t mean it shouldn’t reconsider the margin of appreciation point.

In robustly championing the ECHR in response to mounting public criticism, Sir Nicholas is at risk of setting up a straw man: the argument is not about pulling out, and if it were we wouldn’t lose the rights from the ECHR. This is an argument at the margin, not the centre. As people tirelessly point out the ECHR was drafted by English lawyers in England; in essence, it is just the codification of old common law liberties. And being in the Strasbourg court didn’t stop Tony Blair removing double jeopardy, getting rid of jury trials for some cases, and increasing detention without trial to an unprecedented degree.

And this is where the polarity of the debate is exposed as so much posturing. Some rights have not been protected enough, others have been extended beyond an appropriate point. Human Rights are supposed to prevent the excess of government power, not act as a springboard for courts to expand the meanings of old laws.

Dominic Raab MP thinks that in some areas judges ought to have more powers, but in other areas they should have their powers curbed. He agrees with both sides in the argument. But it is a valid point to make that some of the rights on the convention have been extended far beyond the original common law meanings that were written into the convention. As he said, “What the architects had down as what was degrading and inhumane treatment, which harked back to the Nazi horrors, has been expanded substantially.”

When Sir Nicholas claims that people who criticise the court don’t understand its purpose and history he does not take account of this point. Lord Bingham used to remark that courts are in the habit of accruing power to themselves; and that seems to be the basis of this defence. Everyone agrees about the fundamental rights on which the convention is based; the disagreement is about their implementation. Even article 8 finds common ground on the political right and left over issues of ID cards and DNA databases. All the disagreement comes on the periphery, where some rights have been extended to mean far more than was intended, have gone far beyond the common law liberties that Sir Nicholas invoked in his opening paragraphs. And a general defence is insufficient to answer that point.

We have “democratic institutions operating within the rule of law”, which is what concerns Sir Nicholas about the purpose of the court in other countries. Letting those democratic institutions have a greater say in one or two issues would be no challenge to this process.

On the question of delay he almost sounds like a chancery judge defending that court in 1850, when it was screaming out for reform. As the quote from Nick Clegg, and the leaked details of Cameron’s speech, make clear, reform is part of the government’s agenda. Sir Nicholas says that although there is a backlog of 150,000 and 10,000 more applicants than decisions last year, things are getting better. This again is hardly the point. The backlog can delay deportation by two years because it takes so long for cases to come to court; this is hardly in accordance with the principle from Article 6 that you have a fair hearing “within a reasonable time”. Certainly, if the UK Supreme Court had a backlog like this Sir Nicholas’ argument that it was slowly improving would get short shrift.

We are on neither side in this argument. We see no imminent risk of leaving the court, and no problem with the fact that some newspaper want us to. We equally see that a sovereign parliament must be able to make some laws that are not defeated in a court: it has to be accepted by the pro-Human Rights contingent that this is not an ever extendable set of rights, it is a hedge against unlawful interference by the government. Only when the merits of the few small cases (prisoner rights, terrorist deportations) are properly discussed will there be an effective resolution to this disagreement. Being pro or anti isn’t good enough; it’s more complicated than that.

What is a compromise agreement?

A compromise agreement is a legally binding document that is often used to end an employment dispute or on termination of employment. Compromise agreements are used to settle claims that employees may have against their employer, such as unfair dismissal or discrimination. In exchange for giving up their right to make a claim to the employment tribunal, the employee is given a financial settlement by the employer.

As the employee is signing away their rights, there are safeguards in place to protect the employee and prevent abuse. In order for a compromise agreement to be valid:

• the agreement must be in writing;
• the agreement must relate to a particular complaint;
• the agreement must be signed by the employee;
• the employee must have received legal advice from a relevant independent adviser;
• the agreement must identify the adviser;
• the adviser must have insurance covering the risk of a claim by the employee in respect of the advice;
• the agreement must state that the conditions regulating compromise agreements have been satisfied.

If the compromise agreement does not comply with these requirements, it will not ‘compromise’ your employment rights and will not be valid.

When is a compromise agreement used?

Compromise agreements can be used to settle a dispute where the employment is continuing or has been terminated, for example a compromise agreement might be used where an employee has raised a grievance about discrimination or to avoid a legal challenge to a redundancy.  They are commonly but not always used where the employer has not followed a fair process to avoid tribunal claims. Compromise agreements are also used to remove a poorly performing employee or to remove a senior employee without embarrassment.

By using a compromise agreement, the employer can protect himself from legal action. Employers are often keen to avoid litigation where possible, because of the costs involved and bad publicity it can cause. Remember that in the employment tribunals, both parties usually bear their own costs. The government is also keen to increase the use of compromise agreements to resolve employment disputes to reduce the burden on the tribunal system.

Effect of a compromise agreement

By signing the agreement, the employee agrees not to bring any claims against the employer in return for a financial settlement. Usually a list of all possible claims is included within the agreement, so that the employee cannot bring a claim afterwards.  A compromise agreement is the only way to validly contract out of statutory employment rights. You cannot contract out of accrued pension rights or personal injury claims you are not yet aware of.  If the employee seeks legal advice after the compromise agreement has been signed and discovers a potential claim they have against the employer, unfortunately it will be too late.

Even if it wasn’t a requirement of the compromise agreement, you would want to take legal advice on the compromise agreement you have been offered to ensure you understand its terms and effect. You need to make sure that your employer is offering you adequate compensation for any claims you could bring against them, and any restrictive covenants in the compromise agreement which may affect your ability to seek future employment. Your legal advisor may also be able to negotiate a better settlement for you.

Benefits of a compromise agreement

Having your employment dispute resolved by the use of a compromise agreement is far less stressful and costly than going to the employment tribunal. Although it is not a requirement, it is usual for the employer to contribute to the cost of legal fees incurred by the employee in having the compromise agreement reviewed. A compromise agreement also guarantees a certain amount of compensation within an agreed time period, whereas tribunal proceedings can take months or years. The compensation element of the termination payment for loss of employment made under a compromise agreement can be paid tax-free up to a maximum of £30,000. Using a compromise agreement can also help to ensure that you receive an agreed reference from your employer, particularly if you did not leave on good terms.