President of the Supreme Court argues Human Rights Act is here to stay, perhaps [updated]

23 April 2010 by Adam Wagner

Lord Phillips

Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.

We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).

On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.

That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.

Update 27/04/10

• The UK Supreme Court Blog  has posted on the speech, comments extracted after the page break below.
• Qudsi Rasheed, legal officer at Justice, writes in The Guardian that the Tories’ human rights proposal is unclear and contradictory

UK Supreme Court Blog, summarising the speech:

However, the most significant development has been the Human Rights Act (s.3 of which requires domestic legislation to be read and given effect to in a way which is compatible with ECHR right).  Just how far does that obligation extend?  In Ghaidan v Godin-Mendoza, which Lord Phillips described as the “definitive” case on s.3 HRA 1998, the House of Lords held that s.3 could permit a Court to depart from a provision whose meaning was unambiguous, if that provision was not ECHR compatible, with the dramatic implication that s.3 could oblige a Court to disregard the legislative purpose of subsequent Parliaments.  Lord Phillips quoted with approval the following passage from Laws LJ in Thoburn v Sunderland City Council:

“We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes.  The two categories must be distinguished on a principled basis.  In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.”

The examples given of such constitutional statutes are Magna Carta, the Bill of Rights, the Act of Union, the Reform Acts, the European Communities Act, and the Human Rights Act.  Armed with these quasi constitutional statutes, judges can now in some circumstances apply the law in ways which are contrary to the unambiguous will of Parliament (albeit in human rights cases via the ’shrewd compromise’ of declarations of incompatibility).  In concluding, Lord Phillips referred to the recent decision in HM Treasury v A (reviewed here on the UKSC Blog) in which the UKSC held that the government’s regime for freezing the assets of suspected terrorists (passed by resolution from the UN Security Council, but not by Parliament) was unlawful, since it breached the common law principle of legality.  Giving judgment in that case, Lord Phillips had expressed the view that had the regime been enacted by an Act of Parliament, the principle of legality could not have prevailed over the clear and unambiguous will of Parliament.  However, his Lordship wondered, given that the past thirty years had proven the “art of the possible”, would this conclusion be proved wrong in years to come?

Afua Hirsch writing in the Guardian:

This is how the Human Rights Act works. In large part it allows the courts to interpret parliament’s laws in a way that don’t violate our rights.

But there is an election on – at no time is it clearer how much value this country places on its laws being made by a democratically elected legislature. We choose the politicians who we want to make our laws, and the constitutional arrangement has always been that judges – who we don’t elect – interpret those laws. If judges were able to rewrite them it would undermine the whole point of an elected parliament.

And if this country were to elect a parliament with a Conservative majority, for example, is it right that if those MPs introduced laws violating fundamental rights, the courts could “read in” words that undid the damage?

Of course it is. Parliamentary sovereignty is the bedrock of our constitution, but it isn’t absolute anymore. Taking the hypothesis to its extreme, if this country elected enough BNP MPs to form a government, they could not go rounding up black citizens and putting us on boats to Africa – or wherever it is the BNP thinks we belong. No government could bring back slavery, or begin detaining people without trial. Parliament may be supreme in the UK, but it is unthinkable now that it could act contrary to the well-established principles of international rights.

I’m paraphrasing, but this is the conclusion reached by Phillips. Wherever possible, he said, future laws will continue to be interpreted so that rights are protected, even though future governments did not give those rights the status they now have.

There is a precedent for this in EC law, which has also bound successive parliaments since 1972. And, Phillips added, ministers like this. If they pass laws which are violations of human rights, it’s easier for everyone if our judges interpret the conflict away. Future governments may not take such a co-operative stance, but it does make you wonder how easy they’ll find it to make the Human Rights Act go away.