A Post-European British constitution: Plus ça change?

I am giving a Current Legal Problems lecture at the UCL Faculty of Laws later this week. The lecture is entitled: “A post-European British constitution: Plus ça change?” The following is the opening section of the lecture; it gives a taste of the themes I plan to explore and the arguments I propose to make. 

Public lawyers are used to living in interesting times. Indeed, over the last 15 or so years, the British constitution has been in an almost-permanent state of flux, beginning with the big-bang reforms of the first Blair Administration. And those interesting times are not — or at least may not yet be — over. As is well known, the Conservative Party has indicated — as it did in 2010 — a desire to repeal the Human Rights Act and to replace it with a British Bill of Rights. In a policy document published late last year, it acknowledged that such legislation might place the UK on a collision course with the Council of Europe, and explicitly contemplated the possibility of withdrawal from the European Convention. Nor can continued British membership of the European Union be taken for granted, given the prospect of an in-out referendum in the next Parliament. 

The possibility of these drastic changes naturally encourages speculation about what sort of constitution we would be left with if such events were to come to pass. In particular, if the HRA were repealed, and the ECHR and the EU Charter rendered inapplicable in the UK, to what extent would national courts remain capable of protecting human rights? Of course, none, or only some, of these things might happen: for instance, recent reports indicate that the Conservatives may have placed HRA reform on the back-burner. But this does not undermine either the utility of, or the intellectual case for engaging in, the sort of constitutional futurology that the existence of these possibilities invites. Whether or not the UK’s constitution is, at some point, shorn of some or all of the European influences to which it is presently subject, seeking to understand the innate character of the domestic constitution remains a worthwhile endeavour. It helps us to understand the parameters within which the debate about human-rights protection plays out. And it enables us to appreciate more clearly the inherent nature of our constitutional system, independent of a British engagement with external institutions that might or might not endure.

I propose to explore these issues through the prism of common-law constitutional rights. In particular, I will compare the potential of such rights with the present system that exists under the Human Rights Act. In doing so, I will argue that any regime of human-rights adjudication can be calibrated — and that the common-law and HRA models can therefore be compared — along three distinct but related vectors.

The first concerns normative reach. Are common-law and Convention rights co-extensive, or are the former but a pale shadow of the latter? The second relates to protective rigour. How can — and do — courts concretely protect common-law rights, and how do the techniques available at common law compare with those available under the HRA? The third of my vectors pertains to constitutional resilience. Convention rights — by virtue of their binding effect upon the UK in international law — are invested with a particular form of legal bite. As a result, declarations of incompatibility under section 4 of the HRA are hard to ignore, and interpretations rendered under section 3 are difficult to reverse. But what of common-law rights? Lacking the international-law purchase that Convention rights inevitably have, are common-law rights straightforwardly vulnerable in the face of primary legislation that hierarchically outranks them?

These three vectors sit in relationship with one another — and it is by examining the ways in which they interact that we can appreciate the potential of the common law in this area. In particular, I will argue that rights lying within the common law’s normative core are singled out for special protection, while the common law’s commitment to rights diminishes as we move into a normative penumbra. That commitment is evidenced by the protective lengths to which the common law is prepared to go in relation to particular rights, such lengths being much greater in relation to rights lying at or close to the normative core. In turn, such protective endeavours inform the location of a given right in hierarchical terms, certain rights being especially resistant to legislative or administrative infraction, thus speaking to the constitutional resilience of the right.

Against this background, I will suggest that two extreme analyses of common-law rights must be avoided. One such analysis assumes that the loss of the Human Rights Act and the ECHR would yield the surgical excision from domestic law of Convention rights that are protectable under the HRA-ECHR system. But this is to overlook the potential of the common law. At the other extreme, it is assumed that radical de-Europeanisation would make no difference, because the common law would simply step in. Yet this analysis is also wide of the mark, not least because it indulges in an unwarranted form of common-law romanticism. The true position is messier, more complex — and more uncertain — than either of these extreme views permits. Although it should not be overstated, the potential of the common law is substantial, and — I will suggest — that potential has been placed in sharper relief by experience with the Human Rights Act. It is not so much that the HRA has changed — either transiently or permanently — our domestic constitutional arrangements. Rather, I will argue, it has revealed and emphasised the latent — but hitherto only incompletely realised — potential of common-law constitutional adjudication.

My lecture takes place at 6.00 pm on Thursday 5 March at the UCL Faculty of Laws. The lecture will be chaired by Lord Reed JSC. Further details can be found here