Constitutional Law: The Big Picture III — Human Rights

The first two pieces in this set of blogposts introduced the series of accompanying lectures and considered the role of judicial review. The overarching purpose of the series is to explore the nature of the United Kingdom’s constitution by asking whether it is better understood as ultimately malleable and flexible — such that a sovereign Parliament can, from time to time, impose whatever constitutional arrangements it wishes — or whether the constitution has durable, resilient content that limits law-makers’ freedom of action.

In the next video in the series, I turn to consider that question with particular reference to the way in, and the extent to, which human rights are protected under the UK’s constitutional arrangements.  The enactment of the Human Rights Act 1998 was a significant milestone in the UK’s recent constitutional journey. It raises a fundamental question about the extent to which it has transformed (and can transform) domestic arrangements, thus highlighting their malleability, and the extent to which it reflects or harnesses existing features of the domestic constitution, thus pointing towards their potential durability. A useful way of engaging with these questions is to ask how the HRA may have changed or extended the courts’ capacity to protect human rights — and, conversely, how the courts’ powers might change or reduce if the HRA were to be repealed.

In the video, I address this issue by considering the relationship between the HRA and common law constitutional rights and by contrasting two potential analyses of this issue. On the first analysis, the Act — and the Convention to which it gives effect — is an alien phenomenon: it gives the courts powers to protect ‘rights’ (which is in tension with the common-law’s tradition emphasis on ‘liberties’); it gives them unfamiliar tools with which to do so (e.g. strong powers of interpretation and intrusive instruments like proportionality); and it places legislative authority of Parliament in a legal (i.e. international-law-derived) cage that sits uncomfortably with the legislative freedom implied by the notion of parliamentary sovereignty. In contrast, on the second, competing analysis, the HRA is viewed as a portent of the common law’s potential: the HRA captures something of what the common law always was, and reflects something of what it can (and is coming to) be. These two analyses point towards different answers to questions about what would happen if the HRA were to be repealed and whether the constitution really affords a blank canvas to legislators policy-makers.