As noted in an earlier post, repealing the Human Rights Act 1998—and perhaps withdrawing the UK from the European Convention on Human Rights—is now firmly on the political agenda (at least as far as the Conservatives are concerned). What, then, might lie ahead? Four scenarios are worth considering, reflecting two key variables—namely, whether the HRA is replaced with further domestic legislation, and whether the UK remains a member of the ECHR.
(1) Repeal HRA, remain party to ECHR, no domestic bill of rights
This would, in a sense, put back the clock to September 2000: i.e. before the HRA 1998 entered into force. The rights protected by the Convention would cease to be enforceable in domestic law in the ways specifically attributable to the HRA, but this would not render them wholly irrelevant in domestic law: after all, before the HRA entered into force, Convention rights could be used (among other things) to resolve ambiguity over the meaning of domestic legislation, guide the exercise of judicial discretion, and influence the evolution of the common law. Convention rights would then have no lesser status in domestic law than that which they had pre-HRA, and might—in the light of a point I develop below concerning the common law—retain a greater role.
Meanwhile, the UK would (presumably) remain a member of the EU, in which context human rights law—including the ECHR—would continue to be relevant at the domestic level, and, as a member of the ECHR, the UK would remain bound by it in international law. People in the UK would therefore retain the same legal rights, but would find it harder to enforce them. This option boils down to reversing the policy adopted by the Blair government of “bringing rights home”. It amounts, in effect, to “sending rights back to where they came from”. But of course both of these slogans miss the point, since human rights are not in fact some alien notion that has merely been clumsily grafted onto national law courtesy of the HRA.
(2) Repeal HRA, withdraw from ECHR, no domestic bill of rights
This is the most minimalistic of all options from a human-rights perspective. The intention would be to rid domestic law as comprehensively as possible of human-rights influences. The UK would, however, presumably remain a member of the EU, in which context human-rights law—including the Convention—would remain relevant at the domestic level in areas affected by EU law. If the UK were no longer a party to the ECHR, then this would likely rule out even the sort of pre-HRA reliance upon the Convention outlined above, although there is no reason why courts should not, in similar fashion, rely upon other international human rights treaties to which the UK is (and would presumably remain) a party. The common law doctrine of constitutional rights would (unless Parliament sought to disturb it, e.g. in the legislation effecting the repeal of the HRA) also remain—and, I suggest below, might turn out to be a more potent force that when it was last centre-stage in the late 1990s.
(3) Repeal HRA, remain party to ECHR, adopt domestic bill of rights
This is probably the most likely option, notwithstanding Conservative rhetoric about withdrawing from the ECHR. It certainly offers the greatest scope for fudging the issue. How far in reality this approach would differ from option (1) would depend upon the terms of any domestic bill of rights. It is likely that those agitating for change would seek to frame a bill of rights so as to reduce the domestic courts’ powers in this area, dilute public authorities’ duties to comply with Convention rights, and place greater distance between the jurisprudence of the domestic and Strasbourg courts. Options would include: expressing rights in terms different from those used by the Convention; casting rights more narrowly; omitting certain Convention rights; expressing limitations upon certain rights more broadly than corresponding limitations in the Convention; prescribing how certain rights should and should not be interpreted; making it clearer than the HRA does that domestic courts do not have to follow the jurisprudence of the ECtHR; removing or diluting the courts’ interpretative duty presently contained in section 3 of the HRA; removing the courts’ power, presently found in section 4 of the HRA, to declare the incompatibility of primary legislation that cannot be read consistently with Convention rights.
Crucially, however, none of this would alter the position in international law, according to which the ECHR—and the judgments of the ECtHR—would remain binding upon the UK. This option is, then, a more finessed version of the first option: one that, if not sending Convention rights back to where they came from, would render the UK’s legal system less ready to accommodate them.
(4) Repeal HRA, withdraw from ECHR, adopt domestic bill of rights
This approach would offer policymakers the greatest freedom. It would, to some extent, offer a blank page upon which a very different human-rights system could be written (although it should not be forgotten that the ECHR is far from the only international-law constraint under which the UK finds itself in the human rights sphere). There would, for instance, be a largely free hand concerning the choice of rights to be protected, the means by which they would be protected, the balance between rights and other considerations (including “responsibilities”, whatever that means in this context), and the relationship between the courts on the one hand and Parliament and the executive on the other.
In particular, a domestic bill of rights shorn of any relationship with an international human-rights system such as the ECHR, would likely possess less legal bite (absent architectural constitutional change such as the conferral upon courts of a strike-down power and the attendant repudiation of legislative supremacy). This follows because, at present, it is the fact that domestic judgments foreshadow likely binding adjudication in Strasbourg that invests the HRA regime with real legal teeth. Absent that characteristic, a domestic regime would presumably equip courts—at most—to contribute to political pressure upon Parliament to amend legislation found to be wanting in human-rights terms. As such, a domestic bill of rights coupled with withdrawal from the ECHR would be likely to signal a reversal of the trend towards legal constitutionalism, and a swing of the pendulum back towards political constitutionalism.
Postscript: the common law
All of this, however, is subject to an important caveat—albeit one whose full nature and significance would become apparent only over time. Prior to the entry into force of the HRA, domestic courts developed a common law doctrine of constitutional rights. Such rights ultimately had (and still have) to yield in the favour of clearly-incompatible Acts of Parliament, but would otherwise shape (in sometimes startling ways) the interpretation of legislation and thereby act as constraints upon the executive. That doctrine has not gone away. It remains part of domestic law, albeit that the HRA has, for the last several years, largely overshadowed it and reduced the need to rely upon it. Repealing the HRA would not, therefore, yield a wholly blank page: the common law’s recognition of fundamental rights would remain.
Nor should it be assumed that repeal of the HRA would bring to the fore a version of the common-law constitutional-rights doctrine exactly the same as that which was centre-stage pre-HRA. The relationship between the HRA and the common law has been (and, for now, remains) a two-way one. In particular, the common law has absorbed both rights (e.g. privacy) and techniques (e.g. privacy) from the HRA and the ECHR. Repealing the HRA would not therefore guarantee the removal from domestic law of the rights and techniques to which it has given prominence in recent years. It is far more likely that we would be left with a common law of human rights that turned out to have evolved considerably under the HRA’s influence.
Of course, if Parliament is sovereign, then it could in theory choose not only to repeal the HRA but to direct courts as to how (or even whether) they could rely upon the common law in order to protect human rights. But such a legislative injunction is as unlikely as it would be unwise, since it would set courts and politicians on a collision course whose outcome would be unpredictable but almost certainly messy. Like it or not, the HRA has facilitated an uneasy truce between the courts and the other branches—and, hence, between the forces of legal and political constitutionalism. By a clever sleight of hand, it preserves the ultimately political nature of our domestic constitution by withholding from judges any strike-down power in relation to primary legislation. Yet at the same time it gives effect to a more-legal form of constitutionalism by infusing domestic courts’ ultimately non-binding judgments (vis-à-vis primary legislation) with the binding force of international law. In this way, the HRA scheme, and sections 3 and 4 in particular, enable a form of accommodation between two competing approaches to constitutionalism. This week’s speeches at the Conservative Party conference suggest that a future single-party Conservative Government would seek to shift the balance in the political branches’ favour by placing politicians firmly in the driving seat and putting judges in their place. The difficulty is that, in the absence of a written constitution, there is scope for divergent understandings of what the respective places of politicians and judges—and of politics and law—are (and should be) in the human-rights sphere.
For discussion of the post-HRA potential of common-law constitutional rights, see this post on the Supreme Court’s decision in Osborn v Parole Board [2013] UKSC 61.
Public Law for Everyone 