Human rights and the UK constitution (or, why turkeys don’t vote for Christmas)
27 September 2012
The British Academy have today published a very interesting new report by Colm O’Cinneide considering the workings of the UK human rights law, the relationship between the ECHR, UK courts and the Parliament and the potential effect of a bill of rights.
The report (full report / executive summary) had a prestigious steering committee, including Professor Vernon Bognodor, who knows a bit about the British constitution, and Professor Conor Gearty. The conclusions represent – at least in my experience – the mainstream view amongst legal academics, lawyers and indeed judges on the human rights system. In summary, and with apologies if this is an over-simplification of the report’s detailed findings:
- Healthy democracies are based on more than majority rule;
- A human rights system, policed by the independent courts, can protect minorities which would otherwise be excluded in a majoritarian system;
- It can also protect from a too powerful Executive, which in the UK at least is very powerful indeed (the report refers to this as a ‘culture of justification’, i.e. that public bodies expect to have to justify their actions)
- This is not unique to the UK; it is a feature of elected democracies across the world;
- Despite what the critics say, on a close legal analysis, the European Court of Human Rights is no more activist or interventionist than other international courts (see here for more);
- UK Governments can choose not to implement European Court of Human Rights judgments, but it would be unwise to do so, not least because of the potential damage to its international reputation (and that it has agreed to do so by signing up to the European Convention in the first place).
- The machinery of the Human Rights Act has worked well over the past 12 years; for example, Parliament responded positively to 18 out of the 19 definitive ‘declarations of incompatibility’ issued by the UK courts.
- Any attempt to ‘de-incorporate’ the European Convention on Human Rights would give rise to serious legal complications, and may be incompatible with the UK’s international commitments;
- On balance, the current system of human rights laws is compatible with constitutional principles;
- As to a bill of rights, attempting to recalibrate that balance may prove to be a difficult and thankless task. It may also be unnecessary.
So, human rights law generally works as a check on executive authority as well as a protector of minorities. It is always useful to keep those two points in mind when considering the groups who generally oppose the current system: right-wing newspapers which are not generally supporters of minorities, and politicians who would quite like the power back, thank you very much. This is no coincidence.
The shame is that unlike in other systems, such as the United States where the Constitution is controversial but well-liked, the UK public has bought into the narrative that the Human Rights Act is a charter for terrorists and convicted prisoners. As the report points out, the 1998 Act has in the most part worked very well and was cleverly designed to fit into our complex but unwritten constitutional system – in particular, retaining Parliamentary sovereignty (courts cannot strike down primary legislation – unlike, in effect, in the USA).
For the significant number who think the human rights system works well and that the caricature which has been painted of it is built on sand, more needs to be done to put this simple case: the human rights system limits the power of politicians in favour of individuals and otherwise under-represented groups (for example the disabled), and, thanks to careful design, it works pretty well. For politicians and the anti-minority press to support it would be like turkeys voting for Christmas.
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Read more:
- Bill of Rights Commission: loading the dice?
- Will the Bill of Rights Commission achieve anything at all? – Alice Donald
- UK passes ‘human rights exam’, but with room to improve
- Redressing the Democratic Deficit in Human Rights
- UK vs. Strasbourg: don’t believe the hype – Alice Donald
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6 October 2012
David Cameron and Magna Carta – the backbone of English law.
And Habeas Corpus and Bill of Rights – yes that one.
Where is our constitution?
All around us.
Rosemary
could not have put it better myself
As a non-lawyer here’s a summary of the report: Lefty academics say everything is fine and dandy with Lefty legal organisation.
As a member of the tax paying public (remember us ?) I’m sick and tired of the abuse of process by defendants who seem to see the ECHR as their saviour in times of need and the place to scupper any form of UK justice. Having said that some of the perverse judgements by our own great and good (judiciary) need to be addressed. I’m fathering children in an adhoc manner and buying a cat – just in case the time comes.
Perhaps we in the UK should adopt a more forthright approach as previously shown by France and Italy and just deport the troublemakers back to where they came from saving me the tax payer large sums of my hard earned cash.
I always thought rendition is an underused remedy.
A more critical thought: I was disappointed but not entirely surprised by this report’s more or less unremitting focus on Westminster, despite the broader aspirations which might be implied by its title, on the “UK constitution”. Scotland warrants a couple of mentions, “devolution” only once, and that only in the title of a book in Professor Bogdanor’s terse bio. In the second of the two references, the author rightly highlights that human rights norms are incorporated into the substance of Northern Irish, Welsh and Scottish devolution, on top of the Human Rights Act, noting that:
“… any attempt to de-incorporate the Convention rights from UK law will give rise to serious legal complications. To start with, the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998 all require the devolved legislatures to comply with Convention rights. As a result, any amendment or repeal of the HRA would either have to leave Convention rights applicable when it came to areas within devolved competence, or else alter the fundamental structure of the devolved settlement. This would in turn give rise to complex constitutional questions.”
Population wise, the citizenry in devolved jurisdictions isn’t huge, representing something like 16.2% of the total UK population, but for all that, devolution is arguably throwing up some of the most interesting and challenging new developments in UK constitutional law today.
Take Scotland. Holyrood has primary law making powers, and authority to legislate on all topics not reserved to Westminster. The legislature and executive are also bound over – on a vires test – to act compatibly with the ECHR rights and EU Law.
Nowhere in this report is it examined or explained, for example, that litigants challenging Acts of the Scottish Parliament, or acts of Scottish Ministers, enjoy a remedy not afforded under the Human Rights Act: the impugned Act can be reduced as beyond legislative competence, or the ministerial act declared ultra vires. In short, in Britain, we’ve got judicial review of primary legislation on grounds of fundamental rights, allowing courts significant powers to impact on parliamentary decisions and choices, if afforded the opportunity by a committed litigant.
In 2011, the UK Supreme Court decided the important case of AXA General Insurance v. Lord advocate, in which a conglomeration of big insurers challenged an Act of the Scottish Parliament which legislated for pleural plaques being treated as actionable harms, for the purposes of personal injury claims. AXA (unsuccessfully) argued that this (retrospective) intervention by legislators violated their rights under A1P1.
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0108_Judgment.pdf
In neglecting these developments, the authors are unfortunately doing more than simply glossing the legal situation for a small minority of UK residents in devolved jurisdictions: they’re neglecting some of the most interesting contemporary developments in UK public and constitutional law. That seems to me to be something of a shame. I can’t imagine that yet another arid disquisition on the concept of sovereignty is more diverting.
For a recent and well-argued case for a written constitution I would recommend a reading of “Repairing British Politics: A Blueprint for Constitutional Change” – Richard Gordon QC – Hart Publishing, 2010.
Some will argue that the very doctrine of the Supremacy of Parliament prevents the creation of a constitution in which Parliament ceases to be supreme since whatever constitution is enacted can be unenacted by a later Parliament. This view is a counsel of despair. The Supremacy of Parliament is a power-sustaining device which, as Richard Gordon puts it, “… has never received popular endorsement.” It has never been voted for. If a written constitution were to be adopted by popular referendum, the Supremacy of Parliament could be abandoned in favour of a constitution which also bound parliament. The Supremacy of Parliament is also seen by many as actually amounting to a “supremacy of the executive” given that the executive controls much of parliament’s business – in effect, the “elective dictatorship” which the late Lord Hailsham warned about.
Of course, any written constitution requires interpretation and this is why written constitutions tend to increase the role (some would argue “power”) of the senior judiciary. In the United States there are serious debates about the role of the Supreme Court Justices in interpreting their constitution. Does the constitution permit an “activist” approach or only an “originalist” approach. The advocates of these approaches are Justices Stephen Breyer and Antonin Scalia. In essence, the activist would seek to apply the words of a constitution to new situations as they arise whereas the originalist would argue that the constitution says nothing about the new situation and it was therefore a matter for the legislature and not the judges.
Are we really willing to give up the idea of parliamentary sovereignty in favour of a written constitution which limits the power of parliament and the executive and which probably increases the role of the judges as interpreters of the constitution?
I agreed (above) that Parliamentary controls over the executive need to be somehow strengthened. As things stand, given the executive’s sway over parliament, the sovereignty of Parliament does, in practice, serve to perpetuate executive power. However, I doubt very much that the people would be willing to hand more power to the judiciary. Thus, things are likely to stay as they are for the foreseeable future.
I have spent most of the Summer reading this and half a dozen other reports which either support or criticise the Human Rights Act. In not one single case, in any of the reports I have read, nor indeed, on this blog have I seen, anyone address the ‘elephant in the room’. It is a subject which has become almost invisible in legal academic literature on the subject.
The current paper argues that the 1998 Act is instrumental in protecting minorities. Is it?
The poor and in particular, the working poor are the only real minorities in this country who lack the resources to confront authority. The Naomi Campbell’s and Michael Douglas’s of this world are wealthy enough to purchase their Article 8 rights. What of the minimum-waged who vaccuum the carpet and empty the waste-paper baskets in the offices of the authors of such reports? The people who are legally invisible and highly vulnerable to executive decisions which they cannot challenge because the decision-maker has an unimpeachable defence under section 6(2)?
For the ‘legally invisible’ to purchase access to their Convention rights via the 1998 Act, the price to be paid is potential homelessness. Would any of them place their home at risk as the consideration required for advice and representation on the mandatory journey to the higher courts who have sole jurisdiction under s4(5) to make a declaration under section 4(2) which does not, under section 4(6) alter the outcome in any way? With a mere 18 out of 19 declarations being acted upon in the decade plus, since the Act has been in force, is this a sufficient reason to conclude that the ‘legally invisible’ have everything to gain and nothing to lose by seeking to vindicate a Convention right all the way to the Supreme Court?
And what of the ‘real and effective’ remedies the Convention promises under Article 13 and the Act fails to deliver by expressly excluding it? Section 8 offers nothing but a mere judicial discretion and a right to nothing.
I am sure that the author of this report is right and that the 1998 Act fits very well with our constitutional arrangements even if those arrangements make pretty sure that the Human Rights Act will not protect the individual from a pernicious executive in Parliament or the official who interprets its byzantine legislation narrowly in the interests of the state and against the individual. The Act will not ensure equal access to its provisions by the working poor and while it will protect Naomi Campbell, it does nothing for the milkman!
ObiterJ,
Just in response to your reply to Carl, replacing parliamentary sovereignty with a rule such as found in the US after Marbury v Madison guarantees nothing for the electorate either. I don’t think many people would have voted for decisions such as Citizens United or Korematsu. You’re right, parliamentary sovereignty merits very careful consideration, but so do the alternatives.
Matt
The nearest thing since ancient Athens to a true Democracy is Switzerland.
Referendums are possible at all levels of government from National to local providing that those calling for a referendum get the required number of signatures to support them.One of the virtues of the system is that the government dare not pass something that it knows would be very unpopular for fear that it would be humiliated by an “optional referendum” blocking the intended measure.Hence not too many referendums are needed since governments at all levels are forced to take into account “public opinion”; Something that our UK rulers are very loth to do,more’s the pity.
Unsure if Switzerland qualifies. Until recently women in German cantons had little or no say. Plus in Appelzell they voted by raising daggers in the air. Very Teutonic.
A Secular Society is something not only to be desired,but to be fought for; just as a Religious Society is something to be fought against, to be overthrown — and that applies whether one speaks of Tibet or the Irish Republic.
Thanks for flagging this up. I must read it when I get time to. As you say, going by your summary this does seem to be pretty much a mainstream lawyers’ view – although I’m a bit surprised by the suggestion that repealing the Human Rights Act could breach the Convention. I’m not sure how that could be right, since no one ever seriously suggested the UK was in automatic breach before 2000 simply because the HRA didn’t exist.
On the Parliamentary sovereignty point I have to respond to ObiterJ, though.
Parliamentary sovereignty is the constitutional doctrine which developed in this country precisely as a means of getting power away from an unelected elite, and delivering it into the hands of elected people.
Of course elected politicians can be seen as an elected power elite, abusing Parliamentary sovereignty to perpetuate their own power. But then, the only way of limiting that sovereignty is to raise up some other power over them, capable of striking down Parliament’s legislation – as the US Supreme Court can do, or the German Constitutional Court.
The danger with that is that you install an unelected governing elite of lawyers, a group of people just as vulnerable as any other to the temptation to perpetuate their own power.
And anyway, who would choose what the new constitutional rules would be? Sure, you might (on a very dark day for Britain) get the electorate to sign up for major constitutional change by means of a referendum. But you could bet that the proposed new constitution would have been drafted by an unelected elite of some sort.
It’s far better to ensure that ultimate law-making power always rests with a directly elected body.
Other countries with other histories and in other contexts have adopted good constitutions like the American one and the German one. I’m not knocking them.
But Parliamentary sovereignty is a good system too. To use your words, Obiter, it’s on this that I fear the British will
not appreciate what they have until they have lost it.
I think those of us who want to improve our constitution (and I’m one of them) would do much better to focus on increasing the power of Parliament over the executive (for instance limiting the government’s control of Parliamentary time), than on trying to limit the powers of Parliament.
Yes – the UK “could” return to being a States Party to the European Convention just as it was prior to the Human Rights Act 1998. Indeed, if the “British Bill of Rights” faction gets its way then we may end up just like that with the Convention and the E Court HR as “long stops.”
As always you make excellent points and I cannot really disagree. One of the troubles though with our constitutional arrangement is that it guarantees the electorate nothing. Parliament is free to do whatever it wishes to do and Parliament is, at least most of the time, controlled rather too much by the political elite.
That takes me to your last paragraph and I agree 100% with that.
By the way… I do realise there is a counter-argument that lawyers involved in human rights law may also be ‘turkeys voting for Christmas’ if they were to support changes to the system which would diminish its scope. But judges, who appear to broadly support the system, don’t fall into that category and neither do academic constitutional experts!
And, believe it or not, sometimes lawyers call it as they see it.
Oh dear, I fear I must be controversial. “Constitution” in the title of that book cover – is that an “unwritten constitution”? It will get you as far as an unprinted £10 note at shopping. “Democracy”, now outside of Scandinavia, North America and the Low countries (I will add Australia/New Zealand to make a dozen) where are they? Democracies tend only to work in nations with small homogenous populations. Please don’t reply with “UK” as the 20% electoral turnout is a good place to start disproving that. Finally the ECHR. A great dream but in reality another rich men’s club. Marper ignored – more deaths in custody than any EU nation, the erosion of civil liberty without any public outcry. Sad, really.
Whatever laws are passed perverse judges can interpret them differently from those who drafted them;
For example:-
Article 8: Right to privacy (human rights act)
(1) Everyone has the right for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Clearly the aim is to protect the family from unnecessary interference from the State.
But alone in Europe ,UK judges in our family courts interpret this clause as designed to protect the State from the family !!
This clause, welcomed with open arms no doubt by social workers is used to GAG parents who dare to protest when their children are taken from them !
Any mother wishing to go to the media for help when her newborn baby is taken for “risk of emotional abuse”is told”If you tell people about this you are violating the privacy of your baby so beware or you will end up in prison !”
Only UK family court judges anxious to preserve and protect our babysnatching /forced adoption system could so corrupt a law designed to protect the weak and turn it into a law designed to persecute them…….
Often people do not appreciate what they have until they have lost it.
The “system” certainly preserves “Parliamentary sovereignty” (or supremacy) but that it a rule which, in itself, merits careful examination. Such a rule would be the first thing which any governing elite would put in place so as to perpetuate their power.