The full Coalition agreement is now available, and has made things a little clearer on the new government’s plans for the Human Rights Act. But will the promised review of the 1998 Act be anything more than a time-wasting exercise born of irresolvable disagreements between the partners on fundamental rights, and will the changes last?
“The Coalition: our programme for government” is available to download here. The civil liberties section is largely the same as in the draft agreement published last week, but with an added section on the recently announced Commission to
investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.
We posted earlier in the week on three possible outcomes arising from the Commission; first, full repeal of the 1998 Act, second, repeal and replacement with a Bill of Rights or, third, create in effect a “Human Rights Act Plus”, which would bolster the 1998 Act whilst maintaining the UK obligations under the European Convention. As predicted, it appears that the third option has been selected, but under the Bill of Rights banner.
It is impossible to speculate at present how this will work in practice, but much will depend on the personalities of those on the Commission. Ultimately the outcome may be, in the spirit of the times, a compromise positioned between the Conservative party’s well publicised distrust of the Act (in particular its apparent protection of terrorists) and the Liberal Democrats’ pledge to build upon it. It remains to be seen whether this political friction can generate any useful change.
Towards a written constitution?
We live in interesting constitutional times. The Coalition Government has inspired countless questions on Britain’s so-called “unwritten constitution”, and has now pledged to undertake significant reforms of that ever elusive non-document. The Conservatives have moved from promising to repeal the Human Rights Act to pledging not only to incorporate the European Convention on Human Rights into a future document, but also to “protect and extend British Liberties“.
Of course, there are many paths which the commission could follow, and it will face a difficult legal task in altering the way in which the Convention is incorporated into UK law – no doubt under significant political pressure to restrict unpopular rights – whilst still remaining within the fairly narrow margin of appreciation which is permitted under European treaty obligations.
If the Commission is anything more than a political fudge or time-wasting exercise, a key issue it will have to address is sustainability. A right granted by statute can only be said to be “fundamental” if the statute within which it is enshrined is very difficult or even impossible to repeal. In the United States, rights enshrined by the Constitution are practically impossible to withdraw from, although different times have called for varying interpretations of the language, for example on abortion. In the UK, this is not the case, and as a result it is open to each new Government to reassess the “fundamental” commitments of the last.
One could argue that this reversibility is an essential building block of Parliamentary sovereignty; an elected Government must be able to review any law, regardless of how strongly its predecessors felt about it.
However, as Lord Phillips, the head of the UK Supreme Court, argued last month in a fascinating lecture on statutory interpretation, the courts may be moving towards a position where a limited number of acts of parliament – including the Human Rights Act – are seen to have attained in law the status of “constitutional statutes”. This only applies to a handful of laws, but means that judges can apply those laws in ways which are unambiguously contrary to the will of Parliament. An example would be if, in future, a Government sought to limit a fundamental right guaranteed by the ECHR, such as the right against inhuman and degrading treatment. The courts might then chose to act against the will of Parliament by enforcing that right regardless.
Constitutional crisis or golden opportunity?
Lord Phillips did not go as far as saying that this is how the courts should behave towards the Human Rights Act, merely that in future they might. For him to do so might have precipitated a constitutional crisis, and Prime Minister David Cameron for one has expressed a distaste for what he considers the increasing power of unelected judges. This was one of the reasons he stated for wishing to repeal the Human Rights Act in the first place.
In light of Lord Phillips’ comments, the introduction of a Bill of Rights (or a Human Rights Act Plus) now may present an opportunity to impose the rights guaranteed by the ECHR more forcefully and enduringly on the British legal system, in a way which would make it at least more difficult (perhaps ‘impossible’ is too lofty an aim) to alter or repeal in the future.
This could guarantee a lasting legacy for the Coalition Government, whilst reducing the chance of an increasingly unruly judiciary flexing its interpretative muscle against the will of Parliament; for, the will of Parliament would be secondary to the Bill of Rights. This may end up giving more power to judges in any event, but at least this would be happening in the open rather than by stealth, and democratic checks and balances could be devised.
The British constitution may be elusive, but it is certainly in flux at present, and as such the Commission may present an ideal opportunity to fix within it the basic principles which in any event the UK is bound by under European law. The other alternative is a further Commission every decade, and fundamental rights which amount to anything but.