Earlier this week, I published a post about the views recently attributed by the Mail on Sunday to the Home Secretary, Theresa May. (May, according to the Mail, thinks that the UK should pull out of the ECHR – although today’s Independent suggests that there is likely to be a good deal of posturing behind this.) The purpose of this post is simply to draw attention to two very thoughtful responses prompted by the article in the Mail – and to offer a further thought resulting from them.
The first piece is by Conor Geary – “Theresa May’s human rights stunt” – in the Guardian. The whole piece is well worth reading, but the following paragraph particularly struck me:
At any rate, if the Human Rights Act were repealed, it is not obvious that it would make much difference to how the British courts act now. The judges here have developed a set of human rights principles which are indigenous to the common law and which would almost certainly grow to fill the gap left by the act’s removal: judges deal in facts and real human stories, not rhetoric, and so might be squeamish about sending people to places to be killed or tortured or allowing the same here on the say-so of someone like Theresa May (or, by then, Nigel Farage). In fact, some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene. What would the Tories do then? Withdraw from the legal system?
The second piece – “The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?” – is by Scott Stephenson, and can be found on the UK Constitutional Law Blog. Again, the piece merits being read in full. Stephenson’s key point, however, concerns the effects that repealing the Human Rights Act 1998 may – and may not – have. As I argued in my piece on this blog, the effect of repealing the HRA (or, for that matter, withdrawing from the ECHR) may not be as dramatic as human rights-sceptics suppose. Developing this point, Stephenson asks:
[I]f enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?
He concludes with the following:
While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.
These are pertinent and important questions. My own view is that it does not necessarily follow that repealing a constitutional statute necessarily rids the legal system of all the norms that it enshrined—precisely because of what Stephenson refers to as “bi-directionality”.
But what if Parliament did not merely repeal the HRA, but also directed courts not to give any effect to the ECHR in domestic law or to protect analogous rights? Or (more plausibly, perhaps) what if Parliament enacted an anaemic British Bill of Rights that enumerated rights in decidedly narrower terms than those found in the Convention or at common law? What if, in other words, Parliament sought to anticipate the possibility that judges might simply shrug their shoulders at the repeal of the HRA – on the ground that they would be able to continue enforcing equivalent rights, whether by drawing upon the Convention in spite of the HRA’s repeal or relying purely on the common law as a source of rights?
Such a scenario – which, while still unlikely, is less difficult to contemplate than it once was – engages Stephenson’s final question about “the scope and limits of legislative power to direct and modify the role the judiciary performs in society”. The British way is to avoid having to face up to such questions by relying on everyone playing nicely. So the uncertain boundary between political and judicial power remains undefined, behind a veil of obscurity created by the formal doctrine of parliamentary sovereignty. As I argued in a paper in the New Zealand Law Review, the result is that the UK constitution has a mystery at its heart, consisting of a fundamental uncertainty about what would happen if institutional comity were to break down between judges and legislators.
No-one can know for definite what would happen in such circumstances, and it would be naive to assume that, if sufficiently provoked to assert themselves, judges could straightforwardly ditch parliamentary sovereignty and institute judicial supremacy. It is, however, entirely conceivable that a fundamental breakdown in institutional comity might place the sustainability of the unwritten constitutional settlement under threat – and, as Lord Woolf suggested last time there was an almighty row between judges and Ministers, ignite a campaign for a written constitution. I wonder if Theresa May has thought of that?
Public Law for Everyone 
Mark
Thanks for your interesting post. Your comment about statutory repeal not ‘necessarily rid[ding] the legal system of all the norms that it enshrined’ raises another fascinating question: are human rights a special case?
If a statute grants individuals a right to drive in an express lane if they have more than two people in their car and that statute is subsequently repealed, presumably that right no longer exists. By contrast, if a statute grants individuals a right to a fair hearing and that is subsequently repealed, that right subsists because it was already recognised at common law.
Arguably the more difficult case is if a statute grants a human right that the common law did not previously recognise (e.g. the right to privacy or, more directly, the right to education or housing). If the court incorporates one of these rights into the common law, on what basis is it distinguishable from the express lane driving right?
Scott
Thanks for your response, Scott. You ask a very good (and, as you say, difficult) question.
My instinctive response is that the express lane driving right would not “stick” post-repeal because it does not reflect the type of value that would render it a candidate for protection via the common law constitution. On this view, the “stickiness” of statutory rights (i.e. their capacity to remain at common law post-repeal) turns upon the extent to which they reflect either rights that were already recognised at common law or underlying values whose fundamentality is acknowledged at common law.
I don’t think this rules out the possibility of a new right (i.e. one that was not formerly protected at common law) becoming “sticky”. For instance, it might reflect an underlying value that is acknowledged at common law (even if that value had not, by the time the statute was enacted, crystallised into an identifiable common law right). Or, over time, the value of which the statutory right is a manifestation may come to be absorbed into the common law – such that the statutory right, post-repeal, leaves a normative imprint in the common law that may subsequently generate a fully-fledged common law right.
I realise, however, that this merely begs a further question: namely, how do we determine what values are (and ought to be) the concern of the common law constitution?
Those advocating repeal of the HRA 1998, and even withdrawal from the ECHR as the ultimate version of regaining subsidiarity need to ponder perhaps the following one or two inconveniences:
1. Repeal of the HRA1998 leaves us still in the ECHR, and because our courts (no doubt) would be legislated from acting within the terms of the ECHR, we would see less cases settled here and more having to go to Strasbourg – this was precisely the regime prior to incorporation under the HRA1998. Britain had an embarrassing number of cases against it heard there.
2. The removal of the facility for a judge to issue a Declaration of Incompatibility re a UK law as regards the Convention would place judges in an impossible situation. Up to 1998, a judge could not cite the ECHR in a judgement, now s/he can and, having passed a judgment, s/he may, nonetheless make a declaration that the law on which the judgment was based is inconsistent with our obligations under the Convention. On which the minister responsible has to make a statement to that effect before Parliament which then has the consider what to do about the inconsistency. I cannot see judges being so compliant that they would rest at all happy with clock-winding-back.
3. Going the whole hog, of denunciation of the ECHR (Article 58 of same), brings the biggest fly in the withdrawal ointment. For it provides that any case brought concerning a matter which occurred before the date of denunciation will still come within the jurisdiction of the European Court of Human Rights. How long might that be a problem for a go-it-alone UK? Also, have the proponents not considered that those opposed to this idea might well rejoin the Convention on next election to government?
4. The UK already has denied itself the easiest route to subsidiarity by neglecting to incorporate the Article which provides that we should provide for this. The HRA incorporated A1-12 and 15. Article 13 provides that their should be national tribunals for the settlement of breaches of rights under the ECHR. Whether these should be functions tacked onto levels of existing courts or new machinery the Article does not specify.
Those in parties which support the ECHR ought, surely, now, to advocate an amendment to the HRA1998 to achieve that aim of subsidiarity which is an integral part of the ECHR?
And what argument might Mrs May and others have against that as an easier route, and one less fraught with problems for the UK? Unless, of course, it is not the machinery of the Court they dislike, but the actual rights in the Convention…..
This is an excellent post, thank you very much.
I’m currently writing a postgrad thesis on the way in which human rights are misrepresented/ not understood in the UK, so all of Theresa May’s stunts have given me lot of ammunition.