Putting the GRA in its domestic context

There has been a lot of discussion on social media in the days following my previous post on the legal consequences of repealing the Gender Recognition Act. I don’t feel the need to go over all of the legal material that I did in that post, but a post by Alessandra Asteriti caught my attention and I think warrants some discussion. Full disclosure, Alessandra and I are not on speaking terms. I have no intention of publicly airing dirty laundry and despite any personal differences, she is a very good international lawyer from what I can tell. I’m not an expert in international law so can’t speak authoritatively on her analysis here, beyond noting that it misses some important features of domestic law that one needs to take into account in order to have a full picture of what the legal consequences of repealing the Gender Recognition Act would entail.

In very brief summary of what I’ve written on this, with some addition for further context, the Human Rights Act is a domestic piece of legislation that places strong obligations on domestic courts to interpret our domestic law to be compatible with the rights protected under the ECHR. This includes an obligation to take into account the jurisprudence of the European Court of Human Rights. For many years this obligation was interpreted by UK courts to include what is known as the mirror principle; the obligation, set out in the case of R (Ullah) v Special Adjudicator [2004] UKHL 26, a decision of the House of Lords (now the Supreme Court) to “keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

Initially the principle was interpreted strictly, implying that domestic courts should follow the caselaw of the European Court of Human Rights where there is a “clear and constant line of [Strasbourg] decisions” (Manchester City Council v Pinnock [2010] UKSC 45). Thus, while the European Court itself does not have a doctrine of precedent, where caselaw forms a web of binding decisions each building upon the other, domestic human rights law in the United Kingdom effectively created an obligation on courts to treat ECHR jurisprudence as if it did. If there was a clear and constant line of caselaw in an area, as there is in relation to gender reassignment following Goodwin, the mirror principle would place an obligation on courts to treat that jurisprudence as a floor below which the UK could not fall.

This approach has been somewhat watered down, with the Supreme Court recognising that there may be rare circumstances when a domestic court may be permitted to depart from a settled line of Strasburg jurisprudence. As such, in R v Horncastle [2009] UKSC 14, the Court concluded that:

The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course.

Domestic courts are therefore not bound to follow every case decided by the European Court, but as a line of cases becomes more clear and more established, the mirror principle creates an obligation on courts to follow that jurisprudence, except in rare cases where a domestic court has concluded that following that caselaw insufficiently accommodates important aspects of domestic law.

The mirror principle has been interpreted to permit domestic courts to go beyond the protection afforded by the European Court, but only where a domestic court can be confident that this is somewhere that the European Court will eventually go if faced with similar facts. As Lord Reed stressed in Elan-Cane v Secretary of State for the Home Department [2021] UKSC 56:

As was explained in R (AB) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2021] UKSC 28; [2021] 3 WLR 494 (“AB”), para 59, it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law, on the basis of the principles established in that law. They should not, however, go further than they can be confident that the European court would go.

All of this is to say that the Human Rights Act, and the obligation to take into account the jurisprudence of the European Court means that the caselaw of the European Court can actually be binding domestically, if it forms a part of a clear and constant line of caselaw and where domestic courts are not convinced to depart from that caselaw.

The result of this, given the clear and constant line of caselaw relating to gender recognition, is that even if the Gender Recognition Act were to be repealed, domestic courts are very likely to interpret legislation, so far as it is possible, to reflect that line of caselaw. The legal consequence of repealing the Gender Recognition Act would be to shift the issue of gender recognition to the courts. Courts would then most likely implement and follow the caselaw from the European Court, without any intermediary of domestic legislation to set out exceptions.

The interpretative obligation under s.3 of the Human Rights Act is powerful. It can result in courts interpreting words to mean the exact opposite of what the plain meaning of the words might ordinarily imply. If it is possible to interpret statute compatibly with the Convention, courts will do so. If it is not, they will issue a declaration of incompatibility, creating political pressure to change the law.

The only way to avoid this would be to repeal or heavily amend the Human Rights Act. Even here, membership of the ECHR will have consequences in domestic law. International treaties are used as an aid to interpretation and there is a presumption that Parliament intended to legislate consistently with its international obligations (R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16). There is not an insignificant chance that domestic courts will rely on this presumption so long as the UK is a signatory to the ECHR. As a matter of personal opinion, I support the UK’s membership within the ECHR. As a matter of prediction, I think it is extremely unlikely that the UK government under Labour will repeal or heavily amend the Human Rights Act or even contemplate leaving the ECHR.

The legal consequence of repealing the Gender Recognition Act domestically then would be to maintain the same legal principle of gender recognition, interpreted in line with s.2 of the Human Rights Act to keep pace with the jurisprudence of the European Court, but without the clear exceptions established in s.9(3) of the Gender Recognition Act. The legal effect will minimal in terms of any change to the scope of gender recognition, except perhaps an expansion beyond what is provided for in the Gender Recognition Act. How that interacts with other rights protected under the Human Rights Act, such as the right of women to privacy, remains to be seen.

So where does all of this fit into what Alessandra Asteriti has written recently? Asteriti recognises that “the post-Goodwin case law shows that the ECHR has gone down the path indicated by the GRA by eliminating the need for medical or surgical intervention in order to recognise one’s claim of sex-change.” This is in line with my own views; there is a clear and constant line of cases that establish a clear position in ECHR jurisprudence which effectively matches what has been legislated for in the Gender Recognition Act. It has not gone further than the GRA.

The issue that I have with Asteriti’s analysis is not this; it is the exclusive focus that she has on the international law context, without addressing the domestic legal context:

the ECHR is not a domestic court operating under English law and, as all international courts, is not bound by the rule of precedent. Simply put, the ECHR is not bound by the Goodwin judgment. Additionally, other countries are not bound by it, only the UK. However, this does not mean that the UK is not free to repeal the GRA. There are no legal consequences to its repeal, except the possibility of an application by an individual who claims that its repeal affects his or her rights under the HRA and therefore the Convention, if, after having exhausted domestic remedies, they have their application accepted at the ECHR.

All of this is true as a matter of international law. But as a matter of domestic law, the Human Rights Act has been interpreted to impose an obligation on domestic courts to follow the jurisprudence of the European Court, where there is a clear and constant line of cases. Repealing the Gender Recognition Act would put the United Kingdom into breach of that line of cases, and obligations in the Human Rights Act would then be engaged to prohibit courts from breaching that line of cases (s.6 HRA) and to require courts to interpret other legislation to, as far as possible, to be compatible with that line of cases (s.3 HRA). It may be open to a court to establish that this is an area where the rare exception to the mirror principle applies, but that is by no means guaranteed.

The legal consequences for the repeal of the GRA are entirely domestic, dependant as they are upon the legal obligations arising from the Human Rights Act. Asteriti is correct that, as a matter of Convention law, the consequence is simply that an individual would be free to bring an application to the European Court that the UK was in breach of Article 8.

Focusing exclusively on the international context and failing to consider the domestic context means that Asteriti is simultaneously correct and mistaken when she writes:

Failing an individual application, there are no other legal consequences, least of all the UK being forced to exit the Council of Europe. The fact that the ECHR is an international court, not a court of appeal, also means that there can be no “appeal” to it, but only an application. This has crucial legal consequences, which I am depressed to find out some law lecturers seem to be ignorant about, though they feel entitled to expound on.

In international law, failing an individual application, there is no legal consequence of repealing the Gender Recognition. In domestic law there are clear legal consequences, given the obligations in the Human Rights Act. None of this would force the UK to leave the Council of Europe, but if someone was seeking to ensure that there was no possibility whatever for domestic courts to read gender recognition principles into domestic law, they would need to ensure that the UK repealed the Human Rights Act and, in order to categorically circumvent the presumption from R (SG) v Secretary of State for Work and Pensions that domestic law will be interpreted to be compatible with the UK’s international obligations, they would need to convince the UK to leave the Council of Europe. Again, as a matter of my own personal views, I do not support taking the UK out of the Council of Europe and would only support repealing the Human Rights Act under very specific circumstances not involving a “British Bill of Rights” but a series of statutes wherein Parliament legislates extensively to protect Convention rights, paying due regard to any conflicts of interests that may need to be addressed.

It is of course correct that the European Court is not a court of appeal - individuals make applications to it once they have exhausted all domestic remedies available to them. In UK domestic law, that involves taking a case all the way to the UK Supreme Court and, having lost, making an application to the European Court. Some commentators sometimes refer to such applications as appealing to the European Court after having lost in the UK Supreme Court. A pedant could correctly point out that, strictly speaking, this is not an appeal but an application following a loss in the domestic courts. Little of substance turns on this terminology.

Ultimately, as a matter of domestic human rights law, there are binding obligations on domestic courts to have due regard to the Article 8 jurisprudence dealing with the right to gender recognition. Any discussion of the Gender Recognition Act should at the very least be cognisant of these legal realities. Regardless of what international law has to say about this issue, the domestic context cannot be ignored.