Australian judge lays down gauntlet for the angels of human rights

25 September 2013 by Rosalind English

J.D. Heydon: Are Bills of Rights necessary in common law systems?   – read lecture

Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.

Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible.

He allows that there are some justifications for the HRA: there is some merit in setting out human rights goals as explicit objectives for the legislature and executive to bear in mind, and the duty on Ministers to make a statement of compatibility is a valuable exercise. He also acknowledges that in some instances the Act compels the court to focus closely on a particular application of legislation to an individual case, where the legislature may not have foreseen the adverse human rights consequences of that particular case.

But the claims made for human rights instruments generally extend far beyond those allowed by Heydon, and it is generally denied that the abstractions in those instruments can ever be defined in ways that are hostage to a partisan agenda. Not so, argues Heydon, in an even more devastating critique than that delivered by Lord Sumption in his L A Mann Lecture in 2011 (see my post).  His main charges are cost, legitimacy, uncertainty and the undermining of national sovereignty. But underlying all his separate categories is one main condemnation: that is, that the interpretation of amorphous and vaguely defined rights will always and necessarily proceed from the vantage point of some individual judge’s assumptions about the way life is or should be, and this undermines the rule of law. It is not a coincidence that the speaker comes from a country which prides itself on a robust rule of law system without the buttress of a Bill of Rights (see David Hart’s post “How most Australians do human rights).

Problem one: the direct and indirect expense of the HRA

Even putting aside the expense arising from uncertainty created by ill-defined rights, Heydon identifies the direct expense to government of funding the increased costs of the courts to entertain the burgeoning litigation of human rights – litigation pumped up by interveners and amici curiae, consuming ‘undue time’ in court flowing from the massive citation of authorities from may bills of rights jurisdictions.

Then there is the direct expense of supplying a human rights bureaucracy – Heydon refers to evidence from Canada where the bulk of funding equality programmes is absorbed by the salaries of those who staff them: “the primary economic beneficiaries of rights policies are rights experts.”

Convention rights have fallen into the hands of a sort of “human rights club”. The members of that club know each other’s ways. The members compete in revealing to each other their superior ingenuity and human rights sensitivity. It is a contest of compassion and cleverness.

There is of course the direct expense to public bodies of having to resist human rights challenges, and an indirect cost of bills of rights may be that they channel the energy of government officials and private lawyers away from the direct enforcement of human rights into less productive activity.

Problem two: the creation of legislative tasks in defining human rights which are beyond judicial competence

Heydon says that the determination of the scope of these amorphous and emotively phrased rights is legislative in character. So is the application of the limitations under the interest/necessity clauses of rights Articles 6(1), 8, 9, 10 and 11.

The Convention is so vague that it invites judges to pour their views on controversial practical, social and moral questions into the empty vessels of the words. The meaning will thus vary from judge to judge.

The direction to “take account” of the rulings of the Strasbourg Court does not help. The decisive reasoning in them is often sparse; they are full of dicta and many rulings have been reached by a narrow margin. They often conflict among themselves.

Much of the analysis rests on an artificial footing, that of an “ideal democratic society” which does not actually exist in Europe or anywhere else. This search “is bound to encourage judges to examine their own hearts for what characteristics that ideal society might have.”

Declarations of incompatibility may have costs implications of which no account has been taken in court. If such a declaration are made, and the legislative responds, it will have to seek to raise money from “disgruntled taxpayers to support a policy which both government and the taxpayers oppose”

Responsible government involves the executive being responsible to the legislature. It does not involve the executive and the legislature being responsible to the judiciary.

Problem three: granting power to the courts to substitute for an impugned enactment a different enactment

This refers to the power of the courts, granted by s 3(1) HRA, to legislate by moulding out of an enactment said to contravene human rights a better and purer enactment which does not. The trouble, as Heydon points out, is that the better and purer enactment is not the enactment which the legislature enacted and does not reflect the legislative will. Judges are invited to invent – as Jonathan Sumption pointed out in his 2011 lecture – what are in their opinion the most meritorious policies and the best model which the legislature ought to have followed.

From every point of view, a change in the meaning of legislation to make it rights-compliant can be a more radical and important outcome than a finding of incompatibility. This latter remedy – generally regarded as the more drastic – has only been granted nineteen times since the Act came in to force. But the reading down power of the courts is greater than striking down powers of courts in countries with constitutional bills of rights, since UK judges are invited to ignore the actual meaning of a statutory provision and to substitute a meaning compatible with the Convention “merely because it falls within the generous expanse of what is ‘possible.'”

Problem four: disabling judges from carrying out their conventional functions

The “unusual and rich” diet provided by human rights work may encourage judges to transfer the practical-social-moral analysis commanded by the Act out of human rights fields into other fields, no go areas such as foreign affairs, national security, issues with budgetary implications, moral and policy questions generally.

Problem five: increasing uncertainty and retrospectively

This is the “living instrument” idea, which has come in for heavy criticism, even from Jack Straw, not known for his human rights scepticism. Since UK courts are enjoined by the HRA to take Strasbourg’s expansionist findings into account, the judicial development of statute law threatens to create huge problems of uncertainty and retroactivity.

Problem six: declarations of incompatibility are advisory in character

As Heydon quotes, this remedy is not a remedy at all “but a species of booby prize”.  It creates no advantages for the claimant, nor does not affect any right or obligation in issue between the parties:

A declaration of incompatibility does no more than give advice on an abstract question. That question is not really even a question of law because the incompatibility of legislation with the Convention rights does not make the legislation unlawful.

In other forms of litigation, the courts are assisted in making their decisions by a sharp dispute of the controversy between the parties. That assistance is absent when the court decides, against the will of the parties, to consider making a declaration of incompatibility.  Such assistance

cannot be supplied by the arguments of interveners or amici curiae, with their lofty and non-material goals. I say that as someone who has heard enough interveners and amici curiae to fulfil the needs of a lifetime.

Problem seven: loss of national sovereignty

The legal obligation to comply with the judgements of the European Court of Human Rights, rather than the judgments of the UK Supreme Court, is a small but real erosion of sovereignty.

Conclusion

Heydon concludes his speech with a proposal that we reconsider several underrated techniques for human rights protection, such as the separation of powers, which diffuses and weakens governmental power; the “principle of legality” which prevents courts from interpreting general or ambiguous legislation in such a way as to abrogate from fundamental rights.

The principle of legality, though more limited than s 3(1), can achieve a similar purpose without entailing the drawback of involving the courts in creating new legislative rules.

The specificity of common law and statutory rules are preferable to abstract rights since they are adapted to the resolution of particular problems and are generally coherent with each other and with the wider legal system.  Examples are the Police and Criminal Evidence Act 1984 and rules of the common law such as tort and evidentiary inadmissibility, in whose development “abstract slogans and general aspirations about human rights” played no useful role.

A society which is inclined to respect the rule of law does not need the protection of a bill of rights. If seized by a dictator, such an instrument would be trampled underfoot anyway. And it is always worth remembering that countries with the worst record for oppressing their citizens are generally propped up by constitutions written in the soaring rhetoric of civil, political as well as social and economic rights; as the UK Parliamentary Counsel Sir Julian Elliston said in 1961 that on 16 January 1961 that in

any country where [a bill of rights] is likely to be respected it is probably not necessary while in any country in which it is really necessary it is not likely to be respected.

At the end, Heydon throws out a question, or five sub-questions, for all of us to answer.

1. Is a bill of rights even a particularly useful component in the complex matrix of factors that contribute to a stable civil society?
2. Has the Act significantly improved human rights protection?
3. Is there any fundamental right referred to in the Act which was not given reasonable protection in domestic law before 2000?
4. Before 2000, were there any significant instances in which that right has been infringed in circumstances not permitting any recourse to the courts to remedy the infringement?
5. Is there any respect in which the Act will lead to significantly greater protection for that right without raising the risk of limiting other rights?

The answers should be addressed to the main query, namely whether the Human Rights Act significantly improved human rights protection in this country. They should descend to particulars. The vocabulary of rights can all too readily be used to disguise matters of substance in order to appear as the inevitable outcome of impersonal logic. And it is a fitting time for us to think about these things: the HRA came into force 13 years ago next week.

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