Michael Gove, the Justice Committee and the Human Rights Act

The new Justice Secretary and Lord Chancellor, Michael Gove, gave evidence for the first time today to the House of Commons Justice Committee. We learned a little, but not a great deal, about the Government’s current thinking in relation to the replacement of the Human Rights Act 1998 with a British Bill of Rights. However, five points made by Gove are worth noting.

First, he signalled that “proposals” will be published “in the autumn”. However, it is not clear from what Gove told the Committee whether those proposals will (in the first instance) be accompanied by a draft Bill.

Second, Gove invoked the notion of “abuse” of human rights as a justification for repealing the Human Rights Act: while the rights enshrined in the Convention are, said Gove, “admirable”, it was necessary to take steps to guard against their abuse. The implication appears to be that a British Bill of Rights would address that perceived problem, although Gove gave no indication of how that might actually happen.

That leads on to a third point concerning the relationship between a British Bill of Rights and the European Convention on Human Rights. Asked whether the UK would remain a party to the Convention, Gove said that that was his “hope”, but that he “could not give a one-hundred per cent guarantee”. This is consistent both with a policy paper published by the Conservative Party in 2014 and with remarks made by Lord Faulks, who, in a pre-election debate, both of which indicated that UK withdrawal from the Convention was not out of the question.

This, in turn, gives a clue as to how the Government may be planning to tackle the perceived abuse problem, in that it suggests that a British Bill of Rights may seek to limit certain rights (or, as has been mooted in the past, make reliance upon them contingent upon the discharge of responsibilities) in order to preclude invocation of human-rights arguments that are considered to be unmeritorious. Such a strategy would, in the medium term, quite possibly precipitate British exit from the Convention system — something which was explicitly acknowledged in the 2014 policy paper.

Fourth, Gove refers in his evidence to “traditional British liberties”, the implication being that they are, in some way, threatened by or preferable to the rights presently given effect in domestic law by the European Convention. No indication was given, however, about what those liberties might be, how they might be protected under a British Bill of Rights, or how they are considered to differ from the rights found in the Convention.

Fifth, Gove placed emphasis upon what he considered to be the inherent authority of British judges applying the common law to uphold human rights. He noted that human rights existed in the UK prior to the entry into force of the Human Rights Act, and that the Act is not the “be all and end all”. Indeed, he went further, citing former Lord Chief Justice Lord Judge as authority for the proposition that “there is nothing in the Convention that is not in the common law”. That view is highly contestable at best, plain wrong at worst.

As I have noted elsewhere, it may be the case that Convention rights reflect certain values associated with and found — at some level of abstraction — in the common law. It may also be the case that the common law acknowledges certain rights properly so-called that are close relations of rights found in the Convention. And it may be the case that in some cases courts have been prepared — such as through the use of robust common-law interpretive techniques — to go lengths to protect common-law rights broadly comparable to the lengths they must go to when applying the Human Rights Act in respect of Convention rights. But it is sheer romanticism — as Conor Gearty has pointed out with characteristic vigour — to suggest that the common law has ever contained a fully formed catalogue of rights that attract across-the-board judicial protection comparable to the body of rights enumerated in the European Convention.

Michael Gove is a clearly a very able politician. And it occurs to me that his evidence to the Justice Committee today contains the seeds of an argument that may develop into a significant part of the Government’s case for repealing the Human Rights Act and perhaps resiling from the European Convention. Gove’s position (although set out only very briefly) appears to turn in part on the proposition that HRA-repeal and ECHR-withdrawal would be far from earth-shattering events because judges would continue to be capable of upholding common-law rights — which category of rights is (the argument goes) no different from that enshrined in the Convention itself. On this argument, neither the HRA nor the European Convention serves any particularly useful purpose, serving only to facilitate unhelpful interference by foreign judges who fail to grasp “traditional British liberties”. From this position, no great leap of logic is involved in the further assertion that all that the ECHR and the HRA have done is to contaminate or get in the way of judicial development and application of traditional common-law rights, and that the obvious solution is to allow British judges to get on with it undisturbed by the meddlesome Strasbourg Court.

If the Government were to advance such a narrative, it would leave those who wish to argue in favour of preserving the courts’ capacity to uphold fundamental rights with something of a dilemma. On the one hand, there are clear attractions in emphasising — as the Supreme Court has recently done — the role that the common law can and does play. Doing so serves as a reminder that domestic judges would not be rendered entirely powerless in this sphere were the HRA to be repealed, and underlines the fact that fundamental rights are not a wholly alien construct that exist under the European Convention but find no parallels in domestic law. On the other hand, there are real dangers involved in exaggerating the position by implying that the common law could straightforwardly step in and fill any vacuum created by HRA-repeal or ECHR-withdrawal. Such overstatement opens up the possibility of precisely the kind of argument sketched in the previous paragraph. The risk, then, is that the common-law rights model might end up hoist on its own petard, by dint of being left as the only game in town (thanks in part to overblown arguments as to its capacity) while in the event ringing hollower than its cheerleaders (of whom the Justice Secretary, for strategic reasons, may become one) assert.

None of this is to deny the future potential (which I believe to be considerable) of the necessarily evolutive common law. But future potential and present reality must not be conflated. What is necessary, therefore, is for the debate to be informed by a clear understanding of both the extent and the limits of the role that the common law can play in this area. I attempt to set out a framework for engaging with these questions in my forthcoming Current Legal Problems article, a pre-publication draft of which can be found here.