I wrote recently about the what might happen if—as is an increasingly less-fanciful prospect—human rights law in the UK were to be fundamentally altered through repeal of the Human Rights Act 1998 […]
I wrote recently about the what might happen if—as is an increasingly less-fanciful prospect—human rights law in the UK were to be fundamentally altered through repeal of the Human Rights Act 1998 and perhaps even withdrawal from the European Convention on Human Rights. In that piece, I suggested that while such changes would be far from insignificant, their importance ought not to be overestimated. This is so, I argued, because—with or without the HRA/ECHR regime—the doctrine of common-law constitutional rights would remain. Against that background, yesterday’s Supreme Court decision in Osborn v Parole Board  UKSC 61 is of considerable interest.
The question for the Court was whether three prisoners had been unlawfully treated by the Parole Board when decisions to keep them in or recall them to prison were taken without according them oral hearings. In holding that the Board had acted unlawfully in relation to all three prisoners, the Court did not break entirely new ground; rather, it applied and amplified principles laid down by the House of Lords in R (West) v Parole Board  UKHL 1. However, the reasoning that yielded the Supreme Court’s conclusions in Osborn is significant.
The sole judgment—a characteristically lucid and thoughtful one—was given by Lord Reed. He observed that the appellant prisoners’ advocates had erred by basing their submissions primarily upon Article 5(4) ECHR whilst largely neglecting domestic administrative law. Noting that such an approach “does not properly reflect the relationship between domestic law (considered apart from the HRA) and Convention rights”, Lord Reed went on to consider the nature of that relationship. In particular, he emphasized—correctly—that Convention rights and human-rights law do not exist as separate, exotic features of the domestic legal landscape. Rather:
The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states … [T]he protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.
None of this was to suggest that the HRA is insignificant. Quite the reverse: its importance, said Lord Reed, “is unquestionable”. Crucially, however, the Act
does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
One of the most striking aspects of Osborn is that is places common-law rights centre-stage, consideration of the ECHR being treated as a secondary matter. The suggestion was not that ECHR-compliance should be regarded as insignificant. However, it was common-law rights that did all the work, with the Convention playing an ancillary role as a benchmark to be used for assessing whether further development of common-law rights was needed. The dynamic contained within this analysis differs markedly from the top-down, ECHR-centric analysis that has characterized much of the UK courts’ jurisprudence over the last decade or so, and which found expression in the “mirror principle” which accorded pride of place to the Convention rights and to the Strasbourg Court’s interpretation of them.
Lord Reed’s analysis, offered in what just might turn out to be the dying days of the Human Rights Act, echoes that which Lord Cooke advanced when the Act was in its infancy. In R (Daly) v Secretary of State for the Home Department  UKHL 26, the House of Lords determined the unlawfulness of a policy that compromised the right to legal professional privilege without recourse to the Convention. This prompted Lord Cooke (in a passage quoted by Lord Reed in Osborn) to observe—presciently—that:
It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
All of this suggests—as I argued in my post last week—that the repeal-and-withdraw strategy now gaining traction in some political quarters may achieve less than its supporters appear to expect. In his excellent book on Using Human Rights Law in English Courts, published shortly before the advent of the HRA, Murray Hunt showed how receptive to human-rights arguments domestic courts had become. The fact that that receptiveness has, for the last several years, been accommodated principally via the Act merely serves to obscure, but does not fundamentally change, the underlying nature of the constitutional order and of the place within it of rule-of-law, including fundamental-rights, concerns.
The Supreme Court’s judgment in Osborn thus stands as an important reminder that the potential of the common law glimpsed in the 1990s and affirmed in Daly remains undiminished by the (perhaps passing) codification of human-rights law effected by the HRA. It would be mistaken to press this analysis too far. In particular, it is important to remember that Osborn was concerned with the right to a fair hearing, the deep common-law roots of which make entirely unsurprising Lord Reed’s view concerning the redundancy of arguments based upon the Convention. But it would be equally mistaken to assume that a post-HRA doctrine of common-law constitutional rights would turn out to be a mummified, and so equally-modest, version of that which obtained before its thunder was stolen by the Act.
There is much else of interest in Osborn, including the rejection of the suggestion (implicitly made by the Court of Appeal of Northern Ireland in the case of Reilly, one of the three prisoners) that questions of procedural fairness fall to be assessed by reviewing courts on only Wednesbury grounds. Lord Reed rightly observed that “[t]hat is not correct”, and that whether the requirements of procedural fairness have been observed—and what, in the circumstances of the case, those requirements are in the first place—are hard-edged questions for the reviewing court.
Equally welcome is Lord Reed’s recognition of the non-instrumental, dignitarian function of procedural fairness as a means of according respect to individuals by permitting them to participate in decision-making processes that engage their rights and interests. Acknowledging that such considerations are part of what animates the right to procedural fairness, Lord Reed noted that the purpose of an oral hearing is not just the outcomes-oriented one of improving the quality of decision-making: such hearings also “reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute”. It followed that “[t]he question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood”.
These points are important in themselves from a domestic administrative-law perspective. But what is perhaps more important still is that these points fell to be made from that perspective, rather than from that of the Convention. Lord Reed was not, of course, suggesting that assessing the Convention-compliance of the Parole Board—and of the domestic law under which it operates—is unimportant. At the same time, however, the central role accorded in his analysis to considerations of common-law rights is significant. What would change if the HRA were to be repealed, and if the UK were to withdraw from the ECHR, have always been interesting questions: but they are questions that are now acquiring greater practical significance.
It would be going much too far to suggest—whether on the strength of a judgment like Osborn, or at all—that the answer to those questions is “nothing”. At the same time, however, it would be naïve to suppose that the repeal-and-withdraw strategy would effect the seismic change that its proponents appear to anticipate. These matters turn ultimately upon neither the knockabout politics that underlies the present debate about the future of UK human-rights law nor nice technicalities about the legal effects of the HRA. What they in fact turn upon are questions, of an altogether different order, about the nature of the UK’s constitution and the place within it occupied by basic rights. And they are questions whose answers are unlikely to be straightforwardly determined by the repudiation of any particular human-rights text. Osborn may not resolve any of these issues: but it stands as a useful reminder of their subtleness and complexity.