The Article 50 judgement and withdrawing from treaties

hamish

The coverage of last Thursday’s High Court judgement on Article 50 has understandably focused on its immediate consequences for the process by which the UK will leave the European Union. However, if upheld by the Supreme Court, it is also likely to have wider constitutional significance. In this post Harmish Mehta explores the implications of one part of the court’s judgement, that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law or diminish the rights of individuals. He suggests that this could mean that the government could not withdraw from the European Convention on Human Rights without parliamentary approval.

Part of the UK constitution is the judgements of its courts of law. Such judgements can have transformative and prolonged effects on UK constitutional practice.

On 3 November, the High Court (‘the court’) handed down its judgement in R (Miller) v Secretary of State for Exiting the European Union ([2016] EWHC 2768), which stated that the executive does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union (‘TEU’) for the United Kingdom to withdraw from the EU [para. 111]). The UK Supreme Court will hear the appeal against the judgement on 5-8 December.

Of course, Miller has a considerable impact on the prospects of the UK exiting the EU in the near future. However, it should not be forgotten that Miller is a judgement of wider constitutional importance. Subject to it being modified by the Supreme Court, it has the potential to shape the UK constitution beyond Brexit. This is partly the consequence of its appeal to, and development of, longstanding and far-reaching principles of constitutional law. It rivals even R (Jackson) v Attorney General ([2005] UKHL 56) in its exploration of the UK’s constitutional history and statements of apparent constitutional truisms.

In this post I will explore the implications of one part of the court’s judgement, which amounts to what I will call, for brevity alone, the ‘unmaking principle’. This principle is that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law, be it statute or common law, in any way, or diminish rights of individuals.

Continue reading

The 2016 Queen’s speech and the constitution

20151015-164-copy-150x150

Last week’s Queen’s speech included proposals to bring forward a British bill of rights and a commitment that ministers would ‘uphold the sovereignty of Parliament and the primacy of the House of Commons’. Mark Elliott suggests that if action was taken to implement them these measures would be highly significant. However, there is no sign of developed government thinking in these areas at this stage and so, in practice, they may amount to very little.

This year’s Queen’s speech touches on two possible constitutional reform measures. (I pass over the Wales Bill, which was published in draft in October 2015). The first concerns the replacement of the Human Rights Act 1998 with a ‘British Bill of Rights’, while the second concerns the sovereignty of parliament and the ‘primacy’ of the House of Commons. If implemented, these measures would be highly significant. But the signs are that, for the time being anyway, they may amount to very little in practice – not least because the Government’s thinking in relation to them appears to be undeveloped to say the least.

A British bill of rights

The Conservative Party has for some considerable time said that it wants to replace the Human Rights Act (HRA) with a bill of rights (albeit that exactly what would thereby be entailed has been, and remains, shrouded in uncertainty). Any attempt at reform in this area was stymied in the last parliament by the politics of coalition, the Conservatives’ Liberal Democrat partners being staunchly committed to the retention of the HRA. The most that could be managed then was a Commission on a Bill of Rights, whose proposals, such as they were, came to nothing.

Freed from the shackles of coalition, the Government promised in last year’s Queen’s speech to bring forward ‘proposals for a British Bill of Rights’. This year’s speech contained an almost identically worded undertaking promising ‘proposals’ but not a bill as such. The fact that little, if any, progress appears to have been made in this area is testament to the legal, constitutional and political difficulties that arise (matters that I consider further here). In political terms, the government appears to be divided on the question of whether the UK should remain a party to the ECHR – the Home Secretary thinks not – while the politics of devolution represent a major complication.

Continue reading

The Human Rights Act 1998: past, present and future

922526_10151901526119008_68577225_o

The UK government intends to replace the Human Rights Act with a new ‘British bill of rights’. However, any change to existing human rights law promises to be a complex and difficult project. On March 7 Dr Jeff King, Senior Lecturer at UCL Faculty of Law, explored the current state of play and considered the past, present and future of the HRA. Laëtitia Nakache reports.

After the 2015 general election David Cameron said that the repeal of Human Rights Act (HRA) would be brought forward rapidly. The Conservative party had pledged in their 2015 manifesto to abolish the HRA and replace it with a British bill of rights, in order to ‘break the formal link between British courts and the European Court of Human Rights, and make our [the UK] Supreme Court the ultimate arbiter of human rights matters in the UK.’ Since then the government’s plan to scrap the HRA has been delayed a number of times, with the consultation on the proposed British bill of rights now not expected to be published until after the EU referendum. In this political climate, Dr Jeff King came to the Constitution Unit on March 7 to discuss the past, present and future of human rights law in the UK.

The past: genesis, aims and impact of the HRA

The United Kingdom acceded to the European Convention of Human Rights (ECHR) in March 1951. Though it was obliged under Article 46 to give effect to judgments of the European Court of Human Rights (ECtHR), it was not until the 1960s that British citizens were able to bring claims in the Strasbourg court. Since then, the evolution of the UK law has been influenced by the Strasbourg jurisprudence and by 1998 a broad political consensus existed that UK involvement in the Strasbourg system was politically desirable.

Continue reading

Breaking the link with Strasbourg: Assessing the constitutional implications of a British Bill of Rights

Roger

The Conservative government is considering a British Bill of Rights that would break the formal link between British courts and the European Court of Rights. Roger Masterman argues that this could have unintended and unpredictable consequences, perhaps creating a situation as constitutionally undesirable as the problem the Conservatives are hoping to solve.

The debate surrounding the enactment of a British Bill of Rights is in part premised on the belief that the decisions of the European Court of Human Rights – given effect pursuant to s.2(1) of the Human Rights Act 1998 (HRA) – exert too great an influence over domestic courts and domestic law. Critics of the Act argue that the courts’ application of s.2(1) has rendered decisions of the Strasbourg court effectively binding in domestic proceedings, while critics of the Strasbourg court argue that its expansionary tendencies have seen the Convention rights reach far deeper into domestic affairs than was intended by its authors.

Following the election of a Conservative majority administration in 2015 the Queen’s Speech contained the promise that the new government would ‘bring forward proposals for a British Bill of Rights.’ This promise is underpinned by an election manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ and entrust human rights decision making to a ‘supreme’ domestic apex court. This short post explores the nature of the link established by the HRA, and the parallel – and more longstanding – link established by the United Kingdom’s membership of the Convention system more broadly, before considering some options for an amended relationship governed by a British Bill of Rights.

Continue reading

Human rights, the judiciary and the constitution: Past and future challenges

juliet-wells-photo

At the Constitution Unit’s 20th anniversary conference Dawn Oliver, Stephen Sedley and Richard Cornes assessed the Unit’s contribution to debates around human rights and the judges in the UK, and how it can feed into the challenges that lie ahead. Juliet Wells offers an overview of the session.

This is the second of a series of posts based on presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Professor Dawn Oliver took the lead in the session reflecting on the Unit’s wide-ranging contribution to political and legal discourses on human rights and the judiciary, while the respondents were Sir Stephen Sedley and Richard Cornes (who was unfortunately unable to attend on the day, but sent a statement read by the session chair James Melton). The panel therefore reflected rich expertise across public law and offered a thoroughly engaging range of perspectives on the Unit’s impact, and on the possible future direction of these vitally important areas.

Human rights figured particularly prominently in the discussion, and much was coloured by the existential threat now posed to the Human Rights Act 1998. Looking back, Dawn Oliver emphasised the prescience of Nicole Smith’s 1996 report, Human Rights Legislation, in anticipating not only that the Human Rights Act would need a ‘champion’ in future years if it was to survive in the long-term, but also that the legal implications of repealing the Act and replacing it with a ‘home-grown’ bill of rights would be profoundly complicated by the effects of having incorporated the European Convention on Human Rights into domestic law. In particular, it was identified that the long-term consequences of the relationship between Strasbourg and the domestic courts that the Act set up would generate real controversy, even as it would affirm and entrench the importance of Strasbourg jurisprudence in cases before the UK courts. Looking forward, she reflected on the possible consequences of repeal, as well as on the causes of the apparent ‘tidal wave’ of hostility towards the Act. In considering both of these issues, she suggested that a lack of respect for the rule of law, manifested most conspicuously in the shift towards the view that the courts should not be accorded any responsibility for the UK’s compliance with its international treaty obligations, was at work. This, she thought, could be traced back to the 9/11 attacks, which did much to ‘shake people into hostility’ towards the Human Rights Act. Richard Cornes built upon this by suggesting that enacting a British Bill of Rights, which would in many ways be essentially similar to the Human Rights Act, will serve only to refocus the attention of rights-sceptics onto the UK courts, and thus to intensify claims that judges are ‘self-aggrandising’.

Continue reading

Imagining a British Bill of Rights

Begum-Icellier-225x300juliet-wells-photo

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.

Continue reading

What the Queen said – and what she didn’t say

robert_hazell (1)

Following yesterday’s Queen’s Speech, Robert Hazell considers the constitutional issues that featured, as well as those which were notable in their absence.

There were few surprises in the Queen’s Speech announcing the new government’s legislative programme. Like his admired predecessor Tony Blair, David Cameron knows that the public have little interest in constitutional issues, so the constitutional items came last, just before foreign affairs. England got mentioned first, with devolution to English cities; then more powers for Scotland, Wales and Northern Ireland; English votes for English laws; the EU referendum; and a British bill of rights. What are the key issues to look out for in relation to each of these items? And what other items didn’t get a mention?

The Scotland Bill will be introduced early, because that was promised in the Vow, and the coalition government published draft clauses in January. It will implement the proposals of the Smith Commission, but go no further. It appears to be a done deal, but will be attacked on both sides. The SNP attack is predictable: they will say their resounding victory in Scotland is a mandate to go much further. But the bill also risks being attacked on the government side. The Smith proposals are based on no underlying principles and were very hurried, with no consultation amongst the political parties and endorsed only by the three main party leaders. When the details are examined, unionists on all sides may start to worry about their feasibility, and compatibility with the union. Whitehall was bounced into Smith like everyone else, and no one can confidently say how the fiscal arrangements will work in practice.

Continue reading