ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by Conor Monighan

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.

Third, the Marleasing effect means that member states are required to interpret national legislation in line with EU law ‘so far as possible’. This means general principles of EU law could still have a significant impact in the interpretation of domestic law.

Fourth, there is the ‘New Zealand solution’. In Taylor [2015] NZHC 1706, the New Zealand High Court made a declaration of inconsistency with the New Zealand Bill of Rights Act 1990. Professor Young posited whether the same approach could be adopted by UK courts in relation to the general principles expressed in the Charter.

In conclusion, repealing the Charter of Fundamental Rights does not inevitably mean it will no longer continue to have influence.

Richard Gordon QC

Unlike Mark Antony, Mr Gordon came to praise the European Union (Withdrawal) Act 2018 and not to bury it.

Mr Gordon noted that the Act creates a new kind of law, called ‘retained EU law’. The Act omits to provide guidance on the legal status of this new law, which will presumably have to be decided by the courts, but this is a minor lacuna in an otherwise brilliant piece of legislation.

Like any well drafted piece of legislation, there are a few major omissions:

• The transition period, during which EU law will still take effect, is not accounted for in the Act.
• The arrangements for a ‘no deal’ situation are unclear. s.13 suggests that a resolution will be tabled in both Houses at the end of negotiations. Whether this makes any practical difference depends almost entirely upon whether the Speaker is able to allow a vote on the resolution. If he feels he cannot, Parliament will not debate the resolution and so it will presumably have no meaningful vote. The resolution triggered in the House of Lords is particularly weak, because it only requires them to ‘take note’ of the framework for the future relationship tabled by Ministers [s.13].

Mr Gordon suggested that, given the undoubted benefits of Brexit, these flaws are minor. As he put it,

what does it matter if planes can’t fly, if cars can’t drive; we have taken back control.

“The future of human rights 20 years on from the Human Rights Act 1998” – Chair: Mr Justice Kerr; Speakers: Nathalie Lieven QC, Corey Stoughton (Advocacy Director, Liberty), Professor David Feldman QC (Hon.) (Rouse Ball Professor of English Law, University of Cambridge), Joshua Rozenberg QC (Hon.) (Legal commentator and journalist)

Nathalie Lieven QC

Ms. Lieven’s talk examined the situations in which courts are prepared to defer to Parliament when interpreting the HRA 1998. She focused particularly on the Northern Ireland Human Rights Commission case (NIHRC). There, the Northern Ireland Human Rights Commission challenged Northern Ireland abortion law and sought a declaration of incompatibility.

In NIHRC Lady Hale suggested courts should be loath to defer to Parliament when interpreting the HRA. Her Ladyship argued that the courts “may be thought better qualified” than democratic bodies to consider the HRA [38]. This is for a number of reasons, including the ability of the courts to take a dispassionate view of the matter (something which cannot be achieved by Parliament). By contrast, Lord Mance was of the opinion that there are “inherent limitations” in using “court proceedings as a means of determining issues of social and ethical policy” [344].

The majority dismissed the appeal. It did so despite being aware that public opinion favoured change, that international law bodies supported a change in the law, and that Northern Irish Assembly wasn’t going to legislate on the issue (not least because it is not sitting). Ms. Lieven’s argued that the court’s reluctance to decide on moral issues and to defer to Parliament produces strange anomalies. For example, courts will protect the rights of terrorists (going against the views of most of the population), but will not intervene to assist a 13 year old girl who has been raped.

One further complication is how courts are able to decide which social issues are contentious. In the NIHRC case, polling was important to the Supreme Court but not to the Court of Appeal or High Court. One attendee suggested that a predominantly male panel of judges feel particularly uncomfortable dealing with women’s rights, in a way they don’t with LGBT rights. This may undermine the judiciary’s legitimacy.

Professor David Feldman QC

Professor Feldman started by recalling the period immediately prior to the enactment of the HRA. Back then, courts were focused on creating continuity. He argued that the feeling among judges that the HRA did not ‘create’ proper rights has had negative consequences for the protection of fundamental rights. In particular, it has created a weak system of remedies arising from breaches of the HRA.

Section 6(1) of the HRA states that it “is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Professor Feldman labelled this as a ‘non-remedy masquerading as a remedy’, suggesting that despite the appearance of a remedy one does not really exist. Not only are there no adequate remedies, but a system of damages has not been properly developed.

Professor Feldman argued that the HRA ought to be treated as part of the general law. It is a basic principle of constitutional law that unlawful delegated legislation will be ignored to the extent that it is unlawful. However, for reasons which remain unclear this rule does not currently apply to the HRA.

Joshua Rozenberg QC

Mr Rozenberg’s talk focused on a document recently published by the Ministry of Justice (MoJ): ‘A proposal for a Remedial Order to amend the Human Rights Act 1998’. It is currently out for consultation.

The significance of the change proposed is illustrated by the unusual story of Mr William Hammerton. Mr Hammerton was wrongly found to be in contempt of court. Angry, he decided to throw three eggs at the judge who had originally jailed him. Therefore, he was found to be in contempt of court again. Later that year Mr Hammerton launched another action. This time, he attempted to sue the MoJ in order to obtain damages for false imprisonment. His case went all the way up to the ECtHR, which found there was no effective remedy for a breach of Article 6 which arises from a disproportionately long sentence for contempt.

Under the proposals, the MoJ seeks to amend the HRA to correct this flaw. The change will mean that defendants who have wrongfully been deprived of legal representation in contempt proceedings, and spend an excessive amount of time in prison as a result, will be able to receive compensation by launching an action directly against the MoJ. This will avoid the need to go to Strasbourg.

Corey Stoughton

Ms. Stoughton focused on the political structures which might influence the HRA in the future. As Corey noted, the Conservative Party has dropped the idea that the HRA might be scrapped. However, some senior Conservatives still support the idea (including Dominic Raab, the Brexit Secretary). In addition, one ought not to underestimate the numbers of voters who thought leaving the EU meant also leaving the ECHR.

A particular problem is posed by the loss of the Charter of Fundamental Rights after Brexit (cf: s.5(2) EU (Withdrawal) Act). The rights enshrined in the Charter go beyond the protection offered by the HRA, such as offering added protection for LGBT+ rights. The powerful remedy of disapplying primary legislation which conflicts with the Charter will also be lost after Brexit. A key dilemma for organisations such as Liberty, then, is how the law might be reformed to restore those rights which have been lost, but without jeopardizing the HRA.

A number of papers from the conference are available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.