On 4 December 2012, Richard Bacon MP introduced—under the “ten minute rule”—a Bill to repeal the Human Rights Act 1998. The Bill was rejected when put to a vote. But the fact that Bacon’s Human Rights Act 1998 (Repeal) Bill was introduced is significant in itself. It demonstrates growing unease—or at least, unease that is articulated more frequently and more boldly—with the idea of law and courts preventing elected politicians from doing what they think is right.
This reflects the tension—referred to in my previous blog post—between “political constitutionalism” and “legal constitutionalism”, which is concerned with the ways in which the exercise of power should be constrained. One way of understanding this is to ask: “What should stop the state from doing bad things—and who, in the first place, gets to decide what ‘bad things’ are?” Political constitutionalists argue that we should rely upon the political process—and, ultimately, upon the capacity of the majority (through Parliament) to exercise self-restraint. Legal constitutionalists, in contrast, argue that self-restraint by the majority is inadequate, and that there must be some external restraint upon what law-makers can do—e.g. by the courts enforcing constitutional laws that protect fundamental rights and interests, including those of minority groups too small or weak to punch their weight in the political process.
Bacon’s speech in the House of Commons earlier this week unashamedly, if implicitly, advocates political constitutionalism. (The text is available here; or you can watch the speech via this link.) He argues that:
… our best check is not unelected judges, but the spirit of liberty in the hearts of the elected representatives in this House.
This, he suggests, is because the sort of questions that human rights courts tend to engage with are ultimately “political” questions, even if they are presented as legal ones:
The fundamental point is that one cannot alter the political nature of a decision by changing the location where the decision is made. Judges do not have access to a tablet of stone not available to the rest of us which enables them to discern what our people need better than we can possibly do as their elected, fallible, corrigible representatives. There is no set of values that are so universally agreed that we can appeal to them as a useful final arbiter. In the end they will always be shown up as either uselessly vague or controversially specific. Questions of major social policy, whether on abortion, capital punishment, the right to bear firearms or workers rights, should ultimately be decided by elected representatives and not by unelected judges.
Bacon’s view is highly contestable. But if it is accepted, the question becomes: what should be done? Many people—including the Prime Minister—seem to think that the solution to this perceived problem is to repeal or amend the Human Rights Act 1998. In its submission to the Commission on a Bill of Rights, the Cambridge Centre for Public Law pointed out that this is not so, because the UK would remain bound in international law by its obligations under the European Convention on Human Rights. Professor David Feldman also makes that point in his piece published on the UK Constitutional Law Blog today. To his credit, Bacon also recognizes this point:
there is no point in belonging to a club if one is not prepared to obey its rules. The solution is therefore not to defy judgments of the Court, but rather to remove the power of the Court over us … [W]e need to repeal the Human Rights Act and resile from the convention.
In advancing this argument, Bacon echoes a speech given last week by another Conservative MP, Nick Herbert. (For a great commentary on Herbert’s speech, see Carl Gardner’s article on his Head of Legal Blog.) Criticising the notion of a “British Bill of Rights” that would sit alongside the European Convention, Herbert argues:
Far from giving us greater discretion to strike a balance between liberty and security, a British Bill of Rights, complementary to the Convention, would give us even less. Our courts would remain bound not only by the Convention, and Strasbourg’s interpretation of it, but also by our judges’ interpretation of the British Bill of Rights.
He therefore concludes
that we should resile from the European Court of Human Rights, repeal the Human Rights Act and introduce instead a UK Bill of Rights. In doing so, we could also address some of the flaws in the operation of the Human Rights Act.
This suggests a subtle but important difference between the positions being staked by Herbert and Bacon. Whereas Bacon appears (on the basis of this week’s speech, at least) to be an unambiguously political constitutionalist, Herbert does not dismiss the case for legal-judicial enforcement of rights. Rather, he argues that British courts should be the ultimate arbiters of what those rights mean.
However, this position is not without difficulty. Herbert rightly observes that the language of “rights” has been devalued: “There has been, as Lord Justice Laws recently put it, a tendency to treat ‘I have a right to…’ as a synonym of ‘I would like…’” But properly understood, rights that constitute “human rights” are truly fundamental—and universal. They are rights possessed by people because of their humanity—not because of where they live. As Professor John Eekelaar has pointed out:
It is antithetical to the core idea of human rights that they should be particular to any specific jurisdiction or particular group of people, or that they should be unavailable to any jurisdiction or group of people. That is why they are usually located in international instruments … One of the main values of the European system lies in the principle that when a human right is recognised as being held by someone in one European country, people living in other European countries will be considered as enjoying the same right. This should not be seen as a manifestation of foreign (i.e. European) power over national interests, but as an appreciation of the implicit commitment to universality in all human rights norms.
On this view, the pan-European nature of the system for upholding human rights in the UK is not (as Herbert thinks) one of its greatest weaknesses, but one of its greatest strengths. As debate in this area increasingly acknowledges that the ECHR is a real constraint – meaning that changes to the Human Rights Act would ultimately accomplish little – it becomes incumbent on those who share Eekelaar’s view forcefully to articulate and justify the key arguments: that the fundamentality of some rights should place them beyond legislative interference by the majority, and that the universality of such rights exposes the unfounded parochialism of the Euro-scpectic case against the ECHR. But this cuts both ways. The ECtHR, for its part, must resist the urge to (as Lord Hoffmann put it) “micromanage the legal systems” of the states that are parties to the Convention if it wishes to retain respect as the custodian of enduring, timeless values.