Some potentially significant changes to the ministerial team at the Ministry of Justice have been announced. Along with the appointment of Liberal Democrat Simon Hughes – who replaces Lord McNally – as Minister of State, Lord Faulks QC is joining the department as a further (and unpaid) Minister of State. The former appointment – given Hughes’s relatively high profile as Deputy Leader of his party, and his criticism of the Government’s recent legal aid proposals – is perhaps the more eye-catching one.
However, Faulks’s appointment is significant too, not least because it is arguably a barometer of thinking within the Conservative Party about the future of the Human Rights Act 1998 and the UK’s relationship with the European Convention on Human Rights and the Strasbourg Court. I say this because of the views Faulks expressed as a member of the Commission on a Bill of Rights in one of the individual papers (the key points of which are in this Telegraph opinion piece) appended to the main report. In the paper, which can be found at pp 182-191 of the report, Faulks (writing with fellow Commission member Jonathan Fisher QC) argued that a possibility that should be
open for discussion is renegotiation of the terms of the UK’s membership of the Convention, to allow the UK to remain a signatory to the Convention but with its domestic courts not subject to the Court’s jurisdiction. Certainly the domestic courts could take the Court’s decisions into account, but they would be free to depart from them, even in a case in which the UK was a party to the decision. Another possibility, if an acceptable renegotiation cannot be achieved, is consideration of whether the time has arrived for the UK to leave the Convention altogether. These matters are integral to any examination of the best way for the UK to safeguard fundamental freedoms and civil liberties in the years to come, and it is regrettable that the Commission, through no fault of its own [because of the way in which its terms of reference were framed], has not had an opportunity to consider them.
Faulks and Fisher then go on to conclude that these possibilities should not merely be considered, but that there is much to be said for them:
Mindful of the [Strasbourg] Court’s activist approach, there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights, or at the very least a renegotiation of the UK’s terms of membership so as to free it from the strictures of the Court. There is no reason in principle or practice why the Supreme Court in the UK should not act as the final judicial arbiter on issues pertaining to the protection of fundamental freedoms and civil liberties.
However, Faulks does not align himself with the idea of a constitution in which legal protection of human rights is wholly absent. Indeed, in the paper, Faulks and Fisher go on to contemplate investing the UK Supreme Court with stronger powers than those it presently has under the HRA:
National courts which are closely aligned with the common law tradition, have been afforded differing “strike down” powers enabling them to declare void a statute or statutory provision where it is considered to contravene their domestic Bill of Rights. The question arises as to whether, if the UK was to withdraw from the Convention, it should retain the arrangement in the Human Rights Act 1998 under which the domestic courts are limited to issuing a declaration of incompatibility and not an order (known as a “strike down” power) which would declare Parliamentary legislation null and void. A “strike down” power is controversial for a number of reasons, most significantly because it trumps the will of the majority expressed through the operation of a democratically elected Parliament. However, a number of senior English Judges have recently placed on record the notion that this power is already embedded in the common law by operation of the fundamental principles underlying the Rule of Law …
Yet how sympathetic to human rights protection this proposal is can be questioned. For one thing, the stronger judicial powers contemplated by Faulks and Fisher would bite upon rights contained in a bill of rights whose proposed content – even after the Bill of Rights Commission’s report – is shrouded in mystery. Moreover, the proposal for strike-down powers is tempered by the (quite possibly misplaced) suggestion that the courts would be too timid to use them:
Experience in jurisdictions where domestic Courts have a “strike down” power suggests that a Supreme Court is more reluctant to exercise the power where it has immediate effect, than where a declaration of incompatibility is issued and the matter is referred back to a democratically elected Parliament for re-consideration.
The suggestion appears to be that rendering constitutional review less dialogic in nature – by giving the courts the “last word”, subject to bill-of-rights amendment – would make the courts more cautious, such that they would be less willing to exercise a strike-down power than to issue a declaration of incompatibility. The implicit suggestion is that this would be a good thing, because it would make constitutional review less “undemocratic”.
I have considered the Bill of Rights Commission’s paper – including the parts of it with which Faulks is specifically associated – in detail elsewhere, and will not attempt to repeat or summarise my views of it here. Suffice to say for present purposes that Faulks’s appointment is at least as interesting as Hughes’s, and may, in the long term, turn out to be of more significant predictive value when it comes to assessing the likely trajectory of human-rights law reform in the medium term. It is certainly, at the very least, consistent with the hardening of attitude towards the ECHR and Strasbourg which has become increasingly evident at the top of the Conservative Party over the course of this year.