Saturday, 3 October 2015

Should the government repeal the Human Rights Act and replace it with a ‘British Bill of Rights’?

This is an essay I wrote pre-GDL for a scholarship competition at Oxford Brookes University. I didn't win any money, but it was an interesting topic. 

Introduction: To answer this question I will consider three key arguments in favour of replacing the Human Rights Act (HRA) with a British Bill of Rights (BBR), and then give what I believe are stronger counter-arguments in favour of keeping it. The overall aim is to present an argument in favour of keeping the HRA that any just and rational attempt to scrap it would have to defeat. I do not restrict the arguments in favour of a BBR to those advanced by former Justice Secretary Grayling, as his proposal is frequently limited to topical controversies and thus does not exhaust the constitutional arguments for a BBR.[1]


First argument: Any rights document should protect against Britain’s ‘elective dictatorship’, in which a Parliamentary majority can legislate against fundamental liberties.[2]  Currently, however, ambivalence over the ECtHR’s jurisdiction and the ECHR’s status leads to an unsatisfactory compromise:[3] section 6 obliges courts to hold public bodies accountable to the Convention, but sections 4 and 19 allow the government to disregard incompatibilities between UK legislation and Convention rights. A BBR, policed by the UK Supreme Court, would end this stalemate by conferring the legitimate power to strike down legislation that threatens fundamental rights, thus protecting rule of law.[4]  

Counter-argument 1: It is for Parliament to hold the government to account. If it proves ineffective, then this problem must be solved by Parliamentary reform, not by transforming unelected judges into political actors. Doing so would threaten the democratic principle of Parliamentary supremacy.[5] That it would enable the overreach of British, rather than European, judges is hardly tempting: encroachment on our democratic sovereignty is undesirable whoever the unelected perpetrator. Chief Justice Roberts of the United States Supreme Court, in his dissenting opinion regarding gay marriage, argues powerfully that judicial overreach is a poor way for any society face up to its moral imperatives:
Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.[6]  
Had we always given up constitutional principles so easily, the UK would have ceased being a democracy under rule of law decades ago, or never arrived there in the first place. 

Even a non- or soft-entrenched BBR that granted judges no ‘strike-down’ powers would arguably jeopardise Parliamentary supremacy. The introduction of the HRA was partly motivated by an appetite to increase judicial power, and the increased domestic legitimacy of a BBR would surely whet it further.[7] Nor should we assume that constitutional instruments preserve forever the intentions of their framers: the argument that a BBR could be enacted to prevent the judicial activism allegedly enabled by the HRA is unconvincing: given the same or enhanced powers, what would prevent UK judges developing the same activist tendencies as ECtHR judges are alleged to show? It is arbitrary to hold that activism is simply a European disease, preventable by the quarantine afforded by a BBR. If British judges were able to over-extend the provisions of the HRA, there is no reason why the same wouldn’t happen with a BBR.[8] 

Moreover, it is wrong to think that sections 4 and 19 allow Convention rights to be contravened with impunity. As Hickman points out, any government opting to ignore an incompatibility effectively declares openly that they are choosing to fall foul of an internationally respected code of human rights, originally drafted largely by British lawyers, and must accept the reputational damage and loss of moral stature that will ensue.[9] Similarly, any minister proposing under section 19 legislation not compatible with the Convention will have to rise to the challenge of convincing the House that the proposed legislation is justifiably incompatible. In the words of Lord Hoffmann:
The constraints on Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.[10] 
Rather than an ‘ethical bottom line’, as Jack Straw called it, the HRA is perhaps better regarded as a raised bar.[11]   

Finally and briefly, there remains the question of entrenchment.[12]  If statutory rights, in the form of the HRA or a BBR, are to form an abiding normative framework for interpreting subsequent legislation, thereby creating a culture of human rights, they must be more firmly cemented in the constitution than normal primary legislation. The BBR as proposed by former Justice Secretary Grayling has no such protection, thereby leaving fundamental rights at the mercy of short-term, party-political advantage-seeking (which some cynics say underlie Grayling’s own proposals in the first place). While not entrenched, the HRA’s ambiguous status as part-international treaty obligation means that extrication would not be as easy as the government perhaps thinks, thereby giving the HRA some enhanced staying power.[13]  


Second argument: It is shameful that, unlike her American counterpart, a UK citizen cannot quote, in fact probably doesn’t even know, the rights that define her as a free citizen and human being worthy of dignity. Our liberties would be better protected if awareness of them went beyond the legal profession: the law is for the people, not just lawyers. Most people feel they have no ‘ownership’ of Convention rights – a BBR would put them back in their hands where they belong.[14]

Counter-argument 2a: Popular ‘ownership’ of fundamental rights is unquestionably a good thing. We have to ensure, however, that citizens own not merely the verbatim content of statutes but the arguments and values that underpin them. Once this is understood, I argue, the case for a BBR becomes considerably weaker – in fact, it becomes a recipe for legalism.

The rights of the Convention give legal protection not just to due process of the law, but also to a range of liberties without which, the framers rightly reasoned, no society could be decent, free, or fair. But this protection is an insurance policy that only backs up the values our society has already arrived at as a result of other, usually non-legalistic means. Just as an insurance policy is not sufficient (or indeed necessary) for my obtaining the computer on which I type this, so constitutional rights constitute a necessary but not sufficient condition for the enjoyment of the liberties guaranteed by the Convention. Rights, I argue, protect but do not create our values. Overestimating what rights can do is dangerous: the values upon which human rights are founded can wither due to the fallacy that the mere power of statute upholds them. So:
  • the First Amendment could not compel US journalists to scrutinise the government in the aftermath of 9/11 and during the run-up to the 2003 Iraq War, nor can it prevent a culture of self-censorship. The UK, on the other hand, developed an imperfect but aggressively free press in the absence of statutory protection.
  • Life is sacrosanct because of something other than the law’s say-so – a society that thought otherwise would be in trouble. 
  • Marriage will always have more meaning and legitimacy as a custom than as a right protected by Article 12 of the Convention: the protection is vital, but it is subsequent to a value anchored in culture and ethical norms.

Laws, especially constitutional ones, have their reasons – in fact they are valid only inasmuch as citizens can see for themselves the reasons that make up their ingredients (in this laws are very much unlike sausages). A BBR’s emphasis on baldly stated statutory rights would risk presenting the rule of law to the public as unreasoned and arbitrary – this could only undermine respect for the rule of law: the exasperation many Americans feel regarding the Second Amendment is an example of an entrenched right that has brought the law into disrepute by outliving its justification. Furthermore, law without reason is corrosive to basic dignity: my dignity as a human entitles me to understand why things are happening to me, especially bad things like loss of liberty or property. Fear without reason is primal and animalistic, when I am a rational being: I must therefore have the opportunity to rationalise and accept my plight. This will require more than ‘because the word of the law says so’.

So we can say that some of the most crucial articles of the EHRC are really the complement to much larger diffuse moral and social and cultural discourses. In the words of Lord Bingham on human rights:
No other field of law, perhaps, rests so directly on a moral foundation, the belief that every human being, simply by virtue of his or her existence, is entitled to certain very basic, and in some instances unqualified, rights and freedoms.[15]
Counter-argument 2b: The danger of legalism

Blind obedience to the law because it is the law is often called legalism. I argue now that legalism is a predictable corollary of grounding fundamental liberties in a central legal document. 

A British Bill of Rights at the centre of UK public life would almost certainly result in the widespread false belief that law doesn’t merely protect our liberties, but in fact creates them in the first place. This is because, I submit, popular understanding of widely promulgated BBR rights would fall prey to a semantic slippage, from ‘the law guarantees’ to ‘the law grants these rights’. This would be repugnant: that the law protects my right to live does not mean that I am alive because the law deigns to grant it; that satirists can mock Parliamentarians is not because Parliamentarians allow them permission under Article 10 of the Convention. My life and freedom of expression are not in the gift of the law and so the law is in no position to grant them. 

I suggest that this slippage, from ‘guarantee’ to ‘grant’, arises from a struggle with a paradox: rights documents are the most powerful statements of the law, yet the most important thing they do is declare what the state, and to some extent the law, cannot do: they set down those fundamental values that pre-exist and transcend the law, which the law subsequently undertakes to protect and defer to. This means that the law is most powerful, most visible, and most awe-inspiring (‘We the people…’), when it is most deferential; and because being a citizen in a legal system is only one small part of being human, law’s greatest and proudest duty is to promulgate and defend its own self-limitation in this regard, to acknowledge the boundaries of its domain. Rights documents, then, are, paradoxically, powerful statements of self-restraint.

As we are generally not keen on paradoxes, we get round this one by saying that, actually, rights documents indeed are powerful and not deferential, and therefore there is no contradiction: thus we start to think the grandiloquence and finality of rights documents bespeak more than a power to grant remedy for transgression, and in fact announce a causal power, constitute the wellspring of our rights, the tangible, anchored foundation stone. 

And indeed, the wording of a bill of rights is so compelling in its simplicity and clarity, and so much neater than the process of ethical reasoning that produces it, what society wouldn’t prefer the certainty of the former to the vagueness of the latter?

From here, then, it becomes all too easy to imagine that our values come from our laws not the other way round – that it is overwhelmingly the crystallized, lapidary authority of statute that vouchsafes our liberties, rather than the custom of actually practising and living them. There is great danger here: the right to enjoy is not the same as the means to enjoy, and protecting is not giving. If we confound cause and effect such that we know longer know what the true foundations of our freedom are, we will not be able to keep them standing and in good repair.

A BBR, then, could lead to a damaging culture of legalism by putting at the centre of British public life a totemic and seemingly fixed body of fundamental rights that, by its undue prominence, would undermine the fluctuating, living law that for centuries did a good job of protecting basic liberties in England.[16]  

There is a risk of impasse here. We know, historically, that the common law was an insufficient means of scrutinising the legality of an ever-growing state, and that the need for something like the HRA or a BBR has been proven: the negative liberties of the common law did not constitute a strong enough protection of rights, whereas positive rights can.[17]  If what I have argued above holds, however, any bill of rights must also:
  1. preserve Parliamentary sovereignty and the separation of powers;
  2. be a stable presence on the statute book, isolated from short-term political pressures;
  3. resist legalism and constitutional fundamentalism;
  4. remain symbiotically connected to the moral and cultural discourses that give life to the law.

The best way to satisfy all of these conditions, I argue, is to preserve the HRA while emphasising it as the backstop to, and culmination of, the living liberties of the common law. Thus the problem of the HRA’s foreignness and marginalisation, is in fact its virtue – it prevents us from mistaking the HRA as the central wellspring of our rights, allowing instead emphasis on the case-by-case, experience-based reasoning of the common law, while still remaining as an ultimate guarantee of protection of our rights.[18]  In the words of Edward Coke: ‘Reason is the life of the law, nay the common law itself is nothing else but reason.’[19]  
It is a fair bet that citizens perceive more of the justness and moral power of the law in the judicial reasoning of passing sentence and making rulings, than in the text of constitutional statute. This perception could be strengthened by bringing greater public attention to the availability of judgments online and possibly by replicating the Scottish experiment of televising sentencing.[20]  

The value of the common law, and the dangers of a legal system that places all power in statute, were powerfully demonstrated by V. D. Zorkin, President of the Constitutional Court of the Russian Federation:
In Nazi Germany, the law was an expression of the will of the German nation, and the will of the German nation was incorporated in the F├╝hrer. Hence the law existed only as a body of statutory laws. Both systems [Nazism and Stalinist communism] were killing millions of people, because for both the law was given and contained in the statutes.[21] 
While there are benefits to constitutional rights, why run the risks that come with them when the UK’s current set-up means there is no need?[22]  


Third argument: no matter how undeniably just the rights of the Convention are, what matters is our consent to be governed under their tutelage. It could be that every judge upon Supreme Court of India, say, were a Dworkinian Hercules, but only our consent to their jurisdiction would make their rulings valid. Similarly, the man sitting in front of me on the bus may well see a perfect way to resolve the argument I am having with my friend – but that would not necessarily make his intervention welcome or legitimate. The majority of the populace do not recognise the European Court of Human Rights (ECtHR) as a valid overseer of British laws and public authorities.[23] A BBR would have a much greater chance of achieving that recognition.

Counter-argument 3: A pragmatic solution is called for: the HRA is the best way of accessing a body of fundamental rights which we agree with, which was largely created by British lawyers and the English legal tradition, which does least damage to our democratic insistence on parliamentary sovereignty, and which keeps the common law alive. There is no way we can enjoy all of those things without a little compromise (another fine feature of British constitutional history and life): it is on these grounds that we must try to convince the populace to embrace the HRA. 

Notes

[1] ‘Protecting Human Rights in the UK’, https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf.


[2] See A Commission on a Bill of Rights (2012) 6.30-1.

[3] On the ambiguity as to whether the HRA is a major constitutional document or simply an act providing remedy for breach of the UK’s international obligations, see Hickman (2010) 25ff.

[4] On protection of fundamental rights as a basic principle of the rule of law see Bingham (2010) 
66ff.

[5] Commission on Bill of Rights (2012) notes at 7.9 that a pre-HRA argument against any bill of rights was the possibility of a politicised judiciary. However, the Commission reported (7.34) ‘fewer’ worries in 2012 that statutory constitutional rights would encroach on Parliamentary sovereignty. Bingham (2010) 167-9 is especially strong on the value of Parliamentary supremacy.

[6] Obergefell v. Hodges 576 U.S.              (2015), http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

[7] See Commission on Bill of Rights (2012) 7.5 on the enhancement of the judiciary as an aim of the HRA; see also 12.20. In ‘Unfinished business’, an individual paper appended to the Commission, Lord Faulks QC and Jonathan Fisher QC, express a qualified wish to see a UKSC with strike-down powers.

[8] As, for instance, with Lord Rodgers misinterpretation of HRA sect. 2 as making ECtHR jurisprudence binding on UK courts. See Nicholas Phillips ‘Closed Material’, London Review of Books 17 April 2014, http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material.

[9] Hickman (2010) 7-8. Tory Attorney General Dominic Grieve QC is unambiguous: ‘For all its challenges the Convention has proved and is proving to be an effective tool-perhaps the single and most cost-effective one currently available for promoting human rights on our planet;’ from his 2014 speech ‘Why Human Rights Should Matter to Conservatives’, delivered at the UCL Constitution Unit (available at http://www.dominicgrieve.org.uk/news/why-human-rights-should-matter-conservatives).

[10] R v Secretary of State for the Home Department; Ex Parte Simms [2000] 2 AC 115 at 130.

[11] Hickman (2010) 2, 7-8, & 24.

[12] Discussed by Elliott and Quinn (2014) 304-5, 316-17.

[13] More detailed discussion of this ambiguity can be found at Hickman (2010) 25ff. This is to say nothing of the difficulties regarding the devolved legislatures of the UK: see the speech of Dominic Grieve (cited above n. 9) and chapter 9 of Commission on Bill of Rights (2012).

[14] On lack of ‘ownership’ see A UK Bill of Rights? 7.27.b, 7.37; Hickman (2010) 10. Former Lord Chancellor Falconer’s bid to make human rights ‘as British as a pint of beer’ was a valiant attempt to foster a sense of ownership (see http://news.bbc.co.uk/1/hi/uk_politics/6097634.stm).

[15] Bingham (2010) 116.

[16] See, for instance, the argument made by the law lords that the protection of free speech afforded by Art. 10 is no different from that afforded by the common law – Derbyshire County Council v Times Newspapers Ltd [1993] 2 WLR 449.

[17] See Hickman (2010) 13ff. on the development of public law in the UK by Lords Diplock, Scarman, and others. See also Commission 6.18-22; Bingham (2010) 72, 76.

[18] See Hickman (2010) 49. This also gets round the problem of UK citizens resenting being lectured on liberty by Europe. Oliver Sells QC quoted by Commission … 7.38: ‘this country had enjoyed such rights for many hundreds of years and the idea that a bountiful European Court was conferring them now on the UK citizens [sic] was never likely to be a popular one.’

[19] The First Part of the Institutes of the Laws of England (1628) 2.6.138. Note however that constitutional rights can tend to damage common law liberties. The original framers of the US Constitution worried that constitutional rights would displace common law liberties. The opinion of Lord Rodger (in Watkins (n 171) 64) is that there is no longer any need to develop the common law of tort to give redress to those wronged by public bodies, as the Convention can now do it. If we adopt the ‘living’ Convention, with its own developing jurisprudence, will this conversely make the common law a bit less living?

[20] See https://www.judiciary.gov.uk/judgments/ and http://www.scotland-judiciary.org.uk/24/944/Review-into-cameras-in-court. The argument that a BBR is necessary to allow greater education of what our rights are, as discussed in chapter 10 of the Commission, is surely a nonsense – nothing prevents the government from educating the population about the HRA and the common law and the relation between the two.

[21] Quoted by Bingham (2010) 67.

[22] This inevitably over-simplifies the relationship between the HRA and the common law, particularly whether the two complement or displace one another. See Hickman (2010) 49-55.

[23] https://yougov.co.uk/news/2014/10/08/support-tory-human-rights-plans-falls-along-party-/. This 2014 YouGov poll suggests that citizens understand perfectly well that agreeing with Convention laws on moral grounds is different from assenting to them on political and jurisdictional grounds.


Bibliography


A Commission on a Bill of Rights, ‘A UK Bill of Rights? The Choice Before Us’, December 18 2012, available at https://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf. 

Bingham, T. (2010) The Rule of Law. Harmondsworth.

Elliott, C. & Quinn, F. (2014) English Legal System, 15th Ed. Harlow.

T. Hickman (2010) Public Law after the Human Rights Act. Oxford.