This way, that way, the other way? Latest debate on Human Rights Act – Brian Chang

23 October 2015 by Guest Contributor

Those who want change should have to make the case for it, Baroness Helena Kennedy QC challenged her fellow panellists, at a recent event jointly organised by the Bingham Centre for the Rule of Law and British Institute of International and Comparative Law, and hosted by Bindmans. The panel was one of the most stimulating contributions of the year to the debate over the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights, featuring contributions from three members of the 2012 Commission on a Bill of Rights, a number of comparative perspectives including one from Australia, and even a call for what appears to be a written constitution.

Professor Jeffrey Jowell gave some preliminary remarks to set the scene for the panel discussion. He noted that the Bingham Centre had not adopted any particular position on the proposed repeal of the Human Rights Act (HRA) and its subsequent replacement with a British Bill of Rights, since the Conservative Government had not yet published its proposals. He then quoted a recent  report that the Government was planning to publish its consultation paper within the next two months, and then seek to legislate rapidly to get the British Bill of Rights on to the statute books by the end of next summer. Given this, he felt that the time was therefore right to hear a spectrum of views on the subject to assist the Bingham Centre in forming its position.

Martin Howe QC opened the panel discussion by highlighting what he saw as the potential threat to the rule of law arising from judges producing judgments based on extraneous personal or political opinions in place of faithful interpretation of the text they are charged with applying. He juxtaposed the rule of law with rule by judges, and said the latter was exemplified by courts making decisions that should properly be made by the democratic legislature. To illustrate his point, he cited the decision of the United States (US) Supreme Court in the Dredd Scott case, where a Supreme Court then dominated by Southern interests decided that the US Constitution implicitly included the right to respect for property, such that a Southern gentleman’s right to his property (slaves, in that case) had to be recognised, even when the slave escaped to a Northern state.  This case could have been one of the proximate causes of the outbreak of civil war in the US, demonstrating the unforeseeable consequences of judges deciding cases without sound legal basis.

Turning to matters closer to home, Howe argued that the European Court of Human Rights (the Strasbourg court) has been similarly activist, and has adopted a number of doctrines and principles that could be not on any reasonable basis said to be what member states had agreed to be bound by in signing the European Convention on Human Rights. He illustrated this point by reference to prisoners’ right to vote and the extra-territorial extension of rights to territories which are not part of the Member States themselves (e.g. Al-Skeini v UK). In the case of prisoners’ right to vote, he cited a paper by Dominic Raab recalling that the UK explicitly rejected granting prisoners the right to vote in the negotiating conference that led to the adoption of a text (Article 3, Protocol 1 to the European Convention) that did not contain an individual right to vote. He saw this judicial activism as a problem, as it has no constitutional or democratic legitimacy, and generates adverse reactions, thus devaluing the concept of human rights.

In concluding his case for change, Howe argued that “those who are defenders of the Human Rights Act should open their minds, because this isn’t about attacking or destroying fundamental rights”, but about “removing over-judicialisation of what are essentially political decisions”. The Strasbourg court has also attempted to impose “a very continental-based balance”, such as between the right to freedom of expression and right to privacy, on the UK. He therefore supported the Conservative party proposals to replace the Human Rights Act with an Act that gives the (European) Convention rights effect in domestic law, and makes the domestic courts the final interpreter of such rights. He ended by arguing that Parliament should have control of the ultimate balance of rights within the UK.

Anthony Speaight QC set out a similar, yet distinct case for change. He began by stating that a principal reason for this country’s difficulty with Strasbourg lay in differences as to the degree of respect accorded to decisions of democratic legislatures. This was not merely a difference in approach between Britain and mainland European countries, but a tension which is evident in many parts of the world. It is also mainifest in the judgments of the Strasbourg court itself. For example, in the Hirst (no. 2) case (on prisoners’ right to vote), Judges Wildhaber (then-President of the court) and Costa (who would later become President of the court) dissented, saying that the Strasbourg court is not a legislator and should not assume legislative functions. In the Canadian Sauvé case on prisoners’ right to vote in that country, Mr Justice Gonthier (and three others, out of a total of nine justices) dissented against the majority’s disregard for the Canadian parliament. This tension is also discernible in Chief Justice Robert’s dissent in the United State Supreme Court decision in Obergefell v Hodge.

Turning to Hersch Lauterpacht’s seminal text An International Bill of Rights of Man, Speaight noted that Lauterpacht did not propose a court, but an inter-governmental body or high commission, as a body of last resort whenever there was a grave and persistent violation of the Bill. Whenever there was room for legitimate differences as to the meaning of the Bill of Rights, the high commission would give preference to the interpretation adopted by the legislature, the judiciary or the government of the State concerned (p. 203). Essentially, Speaight’s criticism was that

the Strasbourg court has departed from the principles of the rule of law and effective political democracy, principles underlying the Convention and reflected in its preamble.

He recognised that there was a different school of thought supporting the “living tree”  interpretation of the Convention – one that evolves with time – but argued that in the final analysis, it should be wrong for decisions or matters that should be taken by a democratic legislature to be removed by the decisions of an elite sitting on international rights courts.

In contrast with Howe, Speaight’s view was that the UK should not withdraw from the European Convention. Speaight believed that it would be better for the UK to confront the misguided idea of judicial activism by joining the debate, not leaving it.  Moreover, while withdrawing from the European Convention would allow the UK to avoid the decisions of the Strasbourg court, it would still be subject to the Luxembourg court (the European Court of Justice), which is developing a similar rights-based jurisprudence under the EU Charter of Fundamental Rights. Even if the UK were to leave the EU as well, it would still have to confront the growing judicial activism of its own judges, illustrated by the UK Supreme Court decision in the “Black Spider memos” case.  He also took the position that it is very much in the UK’s interests to comply with its treaty and international obligations by implementing the prisoners’ right to vote decisions, even if he disagreed with them, as the UK gains far more from a world in which treaties are adhered to, than one in which treaties are selectively disregarded.

Speaight concluded by noting that the British Bill of Rights that would be similar to the Human Rights Act having one crucial and one subsidiary difference. The crucial difference would be to substitute the language of “European” and “Convention” rights with “constitutional” rights, in order to obtain greater public support and sense of ownership for the British Bill of Rights, while the subsidiary change would be to section 3 of the HRA. He then placed the proposals for a British Bill of Rights against the backdrop of extensive ongoing constitutional reform, with the Scotland Bill, an impending Wales Bill and “English Votes for English Laws” proposals. The Society of Conservative Lawyers has just published, for the second time, proposals for a single Statute of Union consolidating and reconciling all the different devolution arrangements, a proposal which fits with the Bingham Centre’s proposals for a Charter of Union, and Speaight believed that a chapter on UK constitutional rights would be a natural part of such a statute.

Professor George Williams (a renowned Australian constitutional lawyer and one of the key drafters of the Victorian Charter of Human Rights and Responsibilities) provided an Australian perspective on the debate over the future of the HRA. Australia has a written constitution but no code of rights (see the Australian Chief Justice’s view on this, discussed in an earlier post: “How most Australians do Human Rights, without a Human Rights Act”).  In Australia, the debate over adopting a (US-style) constitutional Bill of Rights had stalled in the late 1990s, but Professor Williams mentioned that the UK human rights model had influenced two states in adopting similar models of rights protection a few years ago.  Both these states sought to adapt the HRA to meet the challenges that they perceived would emerge, and indeed anticipated some of the debates that the UK is having today, and have been successful in heading off these challenges.

They have done this by including the word  “responsibilities”, a concept considered closer to people’s hearts, and by resisting pressure to incorporate wholesale international texts such as the UN International Covenant on Civil and Political Rights.  The rights were instead deliberately adapted to reflect Australian values, creating a sense of ownership and legitimacy, and preempting any suggestions that rights were a foreign concept. There there was a deliberate attempt to give greater emphasis to the centrality of Parliament in the Victorian Charter, whereas the HRA is a court-centric model in terms of its remedies. The Victorian Charter seeks to strengthen rights protection within the legislative system, by requiring a Parliamentary committee to scrutinise proposed legislation for its compatibility with human rights, in addition to requiring statements of compatibility as well as justification by the Member of Parliament seeking to introduce legislation. The courts are empowered to make declarations of inconsistent interpretation, rather than declarations of incompatibility, sending a signal that the role of the courts is to reach alternative interpretations rather than to make definitive finding that trump the role of Parliament. The Victorian Charter also preserves the power of Parliament to make legislation that is inconsistent with human rights in exceptional circumstances, by making an override declaration that must be accompanied by justifications, and which expires after five years.

Helena Kennedy QC concluded the panel with a robust defence of the HRA, although she too had championed a domestic bill of rights in mid 1990s when she led to the constitutional reform group Charter 88. She stressed the importance of being aware of the pre-HRA history and understanding the events that led to the Act’s adoption. Because of the complexity of drafting a Bill of Rights, and the potential for a high degree of political controversy over its content and form, Jack Straw and the lawyers within the Labour leadership came to the view that it would get bogged down in Parliament for a long time, and decided to incorporate the European Convention into domestic law through the HRA. Baroness Kennedy was persuaded, and stressed that she remains persuaded, that the HRA was a really elegant and smart way of getting a Bill of Rights. Her one regret was that “we didn’t do enough work in communities” to build public ownership of the HRA.

As an internationalist, Helena Kennedy believes that there has to be a sacrifice of sovereignty for the greater ambition of achieving a rules-based order that secures peace and justice. She disagrees with the “intentionalist”  interpretation of the European Convention should only follow what the drafters had in mind; the great Conservative lawyers who drafted the European Convention certainly didn’t want homosexuals to marry, and wanted to be able to deport anyone they felt didn’t deserve protection. She therefore argued that law cannot be static, but must change to reflect changing societal norms.

She concluded by arguing that it would be “desperately dangerous” to attempt to draft a British Bill of Rights in the midst of a highly charged political debate over Britain’s relationship with the European Union.

For those interested in further academic and comparative perspectives on the UK’s relationship with European human rights, including perspectives on the relationship between the Strasbourg court and Austria, France, Germany, Italy and Russia, as well as a variety of perspectives on the UK’s relationship with the Strasbourg court including senior judges on both sides, and contributions on the role of the media in shaping that relationship, a new book has recently been published (link here), which is the product of one of 2014’s finest conferences addressing the topic.

Brian Chang is Research Intern with the Bingham Centre for the Rule of Law. He writes this in a purely personal capacity.

An audio recording and formal write-up of the event will be published soon on the Bingham Centre website.