On 30 June 2015, Martin Howe QC gave a talk at the Constitution Unit on what human rights protection in the UK might look like in the event that the Human Rights Act 1998 is repealed. It was a topic that sought to stand apart from mainstream discussions on human rights reform, by engaging directly with the possible content of a British Bill of Rights rather than concentrating on the intellectual and political legitimacy of the case for repeal. Begum Icelliler and Juliet Wells report on the event.
Much of the debate over the future of human rights legislation in the UK has been preoccupied with the merits of the cases for and against repeal – hardly surprising, given the political, constitutional and legal significance of the Human Rights Act 1998 (HRA). Nevertheless, the subject of Martin Howe’s lecture represented a welcome reorientation of that debate: by focusing on the possible content of a British Bill of Rights, it provided an opportunity to begin to examine and question the coherency of the government’s proposals.
The focal point of Howe’s proposals consisted in recasting the relationship between the UK courts and the European Court of Human Rights at Strasbourg. He suggested that the UK courts show ‘excessive deference’ towards the judgements of the Strasbourg court, and that this is to be attributed to Section 2 of the HRA, which requires UK courts to ‘take into account’ the judgements of the Strasbourg court. In his view, this produces a situation in which, de facto, UK case law is ‘overwhelmed’ by an incoming tide of European jurisprudence. This is problematic because it is not sufficiently attuned to domestic concerns. As such, his contention was that a British Bill of Rights must aim, first and foremost, to ‘sever the links’ between the UK courts and Strasbourg, by removing the Section 2 requirement.
A number of problems can be identified with this analysis. First, it is by no means clear that the UK courts show ‘excessive deference’ to the Strasbourg court, nor that the stream of jurisprudence emanating from Strasbourg is disrespectful of local circumstances in the UK. The relationship between the UK courts and Strasbourg should be seen not as a ‘top-down’ or unilateral relationship, but as a ‘dialogic’ relationship founded, as Ed Bates has observed, on ‘cooperation and mutual respect’. Cases such as R v Horncastle provide striking examples of this dialogue in action: here, the Supreme Court accepted that a criminal conviction could be solely or mainly based upon ‘hearsay’ evidence, without breaching Article 6 of the European Convention on Human Rights (guaranteeing the right to a fair trial), provided that the evidence was ‘demonstrably reliable’ and the trial as a whole fair. In so deciding, the Supreme Court explicitly departed from the judgment of the European Court of Human Rights in Al-Khawaja v United Kingdom– yet its decision was vindicated by the subsequent Grand Chamber ruling in Al-Khawaja and Tahery v United Kingdom.
Second, the removal of the Section 2 requirement to ‘take into account’ the judgments of the Strasbourg may not, in fact, achieve anything. Clearly, repeal of the HRA and its replacement with a British Bill of Rights would be an unequivocal expression of parliamentary intent to reorient the rules and principles that make up the current system of human rights protection in the UK. But it is not clear that the multifaceted, dialogic and faintly intangible quality of the relationship between the UK courts and Strasbourg could be redirected in this way. As Kate Malleson has observed, ‘if the HRA were to be abolished… it is hard to imagine that the Supreme Court Justices would simply put aside the case law and the human rights legal culture which the courts have developed over the last decade’ ( Public Law 754).
Howe suggested that the attempt to sever ties with the jurisprudence of the Strasbourg court should be supplemented by the ‘clarification’ of the scope of a number of Convention rights by Parliament. Here, he accused the Strasbourg court of ‘judicial activism’ in giving far-reaching content to a number of Convention rights. He contended, for instance, that recent decisions on the much-maligned right in Article 8 to ‘private and family life’ could not be sustained by the original text of the European Convention. Moreover, he said that such developments could not be justified by conceiving of the Convention as a ‘living instrument’, since this doctrine was only ever intended to support changes necessitated by modern and unforeseen technology. Perhaps inevitably, the detail of what should be clarified, and to what extent, remained unclear – though the premise can certainly be challenged, since there is little to suggest that the ‘living instrument’ doctrine should be narrowly confined to technological as opposed to societal developments (see for example cases such as Modinos v Cyprus, which established that the criminalisation of private homosexual acts was contrary to Article 8).
The second major theme arising out of the talk was how the reform programme would deal with the thorny issue of devolution. The devolved governments – and in particular the Scottish administration – have made clear their opposition to the proposed repeal of the HRA. Two key questions arise from this: whether it will be possible for the Westminster Parliament to enact the proposed human rights reforms in the face of Scottish opposition, and, if not, how the proposals would need to adapt to accommodate the objections of the devolved powers. Howe’s response to the first question was robust: he suggested that the reforms would not constitute a breach of the Sewel Convention (which requires the Westminster Parliament to obtain the consent of the Scottish Parliament before legislating on devolved matters) as human rights are not a devolved matter; that even if human rights were to be considered a devolved matter, the Sewel Convention would not come into play because the proposed reforms would broaden rather than restrict the scope of Scottish power; and that in any case, the Westminster Parliament is sovereign, so it could legislate contrary to the Sewel Convention in order to secure the ‘majority opinion’ if it so wished.
Again, there are a number of problems here. Repeal of the HRA might not trigger the Sewel Convention since the HRA is a protected enactment under the Scotland Act, Schedule 4 paragraph 1 (although Iain Jamieson has argued that even this might bring the Convention into play). However, any replacement legislation would trigger the Convention, since this would affect the scope of Holyrood’s powers: contrary to Howe’s contention, proposed legislation need not reduce the scope of that power in order to trigger the Convention – it is sufficient if the legislation increases or otherwise changes it. Devolution Guidance Note 10, for instance, makes clear that the Sewel Convention does not apply narrowly – it will even apply where proposed legislation on an otherwise reserved matter “alter[s] the legislative competence of the Parliament or the executive competence of the Scottish Ministers”. Moreover, although it might be technically true that the Westminster Parliament could ‘ride roughshod’ over the wishes of the devolved powers, whether the Conservative administration could do this without losing all credibility as a ‘pro-union’ party is another matter.
The overall tenor of Howe’s lecture, then, was one of dissatisfaction with the perceived weakening of the authority of the Westminster Parliament, in relation to human rights. Although this is the principal driver of human rights reform, however, it remained – and will remain – unclear whether and how power can be ‘restored’ to Westminster in any meaningful or non-destructive way.
About the Authors
Begum Icelliler is a BA War Studies student currently working as a Research Volunteer on the PCUK project, where she is responsible for collecting and cleaning the retrospective data (1945 – onwards). Her subject interests include human rights and women’s issues.
Juliet Wells graduated from Oxford University with a BA in Law in 2014. She is now a Research Volunteer at the Constitution Unit, working on the Judicial Independence Project.