Monthly Archives: April 2011

Nick Barber: A Good Word For the Bill of Rights Commission

Liora’s powerful critique of the composition of the Bill of Rights Commission has drawn a number of comments.  All of them are supportive; indeed, the only hint of dissent is that she may not have gone far enough.  I have some sympathy with the positions she expresses, but I wonder if she is, and those who agree with her are, being a little hard on the Commission.  At least some of the criticisms of the Commission reflect our uncertainty about what type of creature the Commission is supposed to be, rather than flaws in the composition of that body.  There are at least three different models of the Commission, each of which has different implications for its composition.

First, the Commission could be a panel of impartial experts setting out to review the functioning of the Human Rights Act in a scholarly, empirically driven, fashion.  We would then expect the Commission to consist of people with expertise in the operation of the Act: professors of human rights law, practicing lawyers with particular experience in the area, for instance.

Secondly, the Commission might represent, in some sense, the people of the United Kingdom, and be seeking to reform the Human Rights Act in light of their opinions about it. Most crudely, such a body could simply seek to identify these views and report on them in a more or less coherent fashion.  But more attractively, the Commission could be a sort of citizens’ jury, bringing together a wide range of people to discuss the Act, reaching a considered view about its reform.  In this case, the Commission would not consist of experts, but would consist of a diverse range of people from different backgrounds.  Experts in human rights law would probably not sit on the panel – indeed, expertise might even be considered a disadvantage. We would want the Commissioners to approach their task with an open mind and deliberate as equals.  On this model, experts would advise the Commission, but would not determine its recommendations.

Thirdly, the Commission might be a forum in which representatives of the Conservative and Liberal parties can thrash out compromises that come within striking distance of their manifesto commitments.  The Commissioners would be delegates of their parties; fighting for a Liberal or Tory vision of the Human Rights Act.  On this model, what matters is that the Commissioners have some knowledge of the operation of the Act, but – more importantly – that they have the confidence of the parties they represent. The Commissioners have constituencies: groups of people whose confidence they must maintain to succeed in their role.  Whereas on the first two models having a clear, political, opinion on the merits of the Human Rights Act before joining the Commission might be thought a disadvantage, on this model it is essential.

When criticising the composition of the Commission it is important to be clear about which of these three roles the body is intended to play.  If it is supposed to be representative, for instance, complaints about the Commissioners’ lack of expertise are misdirected: the Commission is supposed to represent the country, and only a very few people are human rights experts.  In contrast, worries about the Commissioners’ political allegiances are out of place in the third model, but would be well-founded if the first was adopted.

So which of our three models best captures the Commission?

The first model, the technocratic, politically neutral, body is a bit of a red herring.   Lawyers and law professors often hope that it is possible to engage in purely technical law reform; that it is possible to improve the operation of the law without adopting a political position on its merits.  This is an illusion – even the driest areas of property law are animated by deep, often unconsidered, political beliefs – but it is especially misleading in the context of the Human Rights Act.  The key questions that the Commission must address are strongly political.  There are no legal right answers to the best balance between the courts and Parliament, or the latitude that should be given to judges when interpreting statutes, or even to the nature and content of rights and the play-off between these rights and the interests or wishes of the community.  True, there are matters with which experts can assist us: they can tell us what the law says about a particular issue, they can tell us how laws do, and how proposed laws may, affect our world.  But our hopes for a ‘neutral’ answer to questions about reform of the Human Rights Act will always be disappointed: any vision of what the Act should become is clearly and unavoidably political.  ‘Experts’ on human rights have political agendas.  This is not a criticism: such commitments are unavoidable.  But we should not fool ourselves into thinking that there are purely technocratic answers to questions about the HRA – and we certainly should not defer to experts solely because of their supposed political neutrality.

The second model, the citizens’ jury, is more plausible.  We could imagine a group of people – perhaps selected at random – being given information about the operation of the Act by professors, lawyers, and politicians, listening to various possible reforms, deliberating and then producing a set of proposals.  These proposals would have a decent claim to capture the considered views of the electorate.  Of course, the outcome of this exercise might come as a disappointment to supporters of the Human Rights Act.  I doubt that the public in general is as keen on the European Court of Human Rights as human rights scholars tend to be, and I also suspect the public would be far slower to allow judges to override the will of Parliament.  (And, while we are on this topic, I suspect most people would be dismayed to learn of the EU Charter of Rights, an instrument that, interacting with the HRA and ECHR, will produce a system of rights protection that is bizarrely complex and costly – but that is a matter for another day.)  Now, human rights supporters have a good argument against such conclusions: the point of rights is, in part, to protect minorities from majorities.  But if we created a genuinely representative Commission, one that reflected the views of the majority, it would be hard to fight off the outcome.

Whilst the second model is more plausible than the first, it is clearly not the one adopted by those setting up the Commission.  This leaves us with the third model, which, I think, most accurately captures the nature and role of the body: as a forum in which a compromise can be reached between two political parties.  To object that this body is unrepresentative and politically partial misses the point.  The representative bit of the process occurred at the election.  We have a Parliament that represents the people.  Members of the Commission represent the two parties that, together, command the majority of seats in the House.  The point of their report is to formulate a position to which each party can assent, and which has a chance of getting through the Commons when it is put to a vote.    This vision of the Commission is hardly edifying – but perhaps only because we are expecting too much of it.  The Commission is doing in public what would normally, had a party won an outright majority of the seats, have been done in private.

Nick Barber is a Fellow of Trinity College, and a Lecturer at Oxford University. 

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Anthony Bradley: The Importance Of Voting ‘Yes’ To The Alternative Vote

 The unrepresentative nature of the House of Commons that arises from the present electoral system has long been the subject of adverse comment, for reasons that include two factors of constitutional importance: (1) The present system often enables a party supported by a minority of the voters to wield a commanding majority in the House of Commons.  The most recent illustration of this arose in 2005 when the Labour party was supported by 36% of those who voted in the general election and occupied around 55% of the seats in the Commons.  Such a distorted result, that our European neighbours find incomprehensible, comes at the cost of the under-representation of the third and other parties.  (2)  At the constituency level, as more and more voters have supported the third and other parties in successive general elections, more than half of MPs have been elected by less than 50% of those who voted in their constituency.

The direct consequences of these two factors include: the temptation to a government to expect the House of Commons to vote through its proposed legislation without proper scrutiny; and, on the part of many voters, disillusionment with politics and politicians, as they ask themselves, in many constituencies, what is the point of voting?

Certainly, AV will not produce a truly proportional system for the United Kingdom: for that, three possibilities would be (a) a national party list system, (b) a system providing for additional members (as in the devolved Parliaments in Scotland and Wales), (c) adoption of the ‘single transferable vote’, that would require single-member constituencies to be replaced by multi-member constituencies.

Probably no-one would support a national party list system, but there is a statable case to be made for an additional member system, and an even stronger case to be made for the single transferable vote.  However, there are arguments to be made against creating ‘two classes’ of MPs, and against ending the single-member basis of constituency representation.

By comparison with those two systems, AV offers less, but it is much easier to achieve.  Contrary to what the ‘No’ campaign is claiming, it will be a simple system for the voters and for those who administer elections.  It will enable most MPs with greater justification than at present to claim that they represent the constituency.   It is a step in the right direction and it deserves to be taken.  Those who say that it does not go far enough, should reflect that nothing else is likely to be on offer in the foreseeable future.

Anthony Bradley is Emeritus Professor of Constitutional Law, Edinburgh University, and a visiting research fellow at the Institute of European and Comparative Law, University of Oxford.

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Grégoire Webber: No to AV

Many poor arguments are advanced in favour of the Alternative Vote. Among the arguments is the promise that politicians will be more attentive to the wishes of their constituents (though we are not told why we should not prefer Burke’s Speech to rule-by-pollsters) and that they will work harder for you. At times, the rhetoric favouring AV is so euphoric that there seems to be no ill in politics that a change in voting system cannot remedy.

In evaluating voting systems, one confronts polycentric choices, which renders the ranking of voting systems a matter of judgment rather than demonstration. Among the valuations are the following: should votes be cast for party or candidate, should constituencies be single- or multi-member, and should electors cast one vote or several preferences. On these valuations, AV and the existing first-past-the-post overlap and not: both prefer votes for candidates in single-member constituencies but differ in what is asked of the elector in the ballot box.

The simplicity of the first-past-the-post system is both its virtue and vice: electors are asked to make the difficult choice of selecting one candidate, on the strength of the candidate’s person, the officially affiliated party, the unofficially affiliated manifesto, the party leader, or some uncertain combination. The constituency’s representative is the one favoured by more electors than any other, which has never been taken to mean that the representative speaks only for those who cast a ballot in his favour.

The primary vices of this voting system are well rehearsed: representatives are regularly elected with a minority of votes and, thus, a majority of votes are wasted. Wasted? On this understanding, votes cast for defeated candidates are akin to unused ballots; only votes caste for the winning candidate count. AV professes too much if it claims to do away with wasted votes: more electors will cast a ballot in favour of the elected candidate, but many will not.

But what of those ‘un-wasted’ votes under AV? What is it to cast a ballot with the option of ranking preferences from 1 to 2 and beyond? To the voter who ranks but one candidate, AV reverts to first-past-the-post. To the voter who ranks candidates 1-2-3, AV proceeds with a rationale no more sophisticated that this: the candidate ranked 1 is equal in all material respects to the candidates ranked 2 and 3, save for their ranking. Should the voter’s first preference candidate be eliminated, the voter’s second preference is then counted. Counted how? In whole, not in fraction. AV instructs the voter that his second preference counts for no less than his first, his third no less than his first, his fourth no less than his first, and so on.

The elected candidate will see in her pile of ballots those ranking her 1st, 2nd, 3rd and beyond. It may be that she has fewer ballots marked ‘1st’ than another: no matter—AV counts not qualified preferences but whole ballots and so she speaks for the constituency.

AV challenges the commitment to ‘one person, one vote’. Unlike run-off elections (as in the French presidential election) where all electors are invited to vote again for select candidates who failed to secure a minimum threshold of votes, AV gives only a subset of electors who ‘wasted’ their votes in the first round a second go. To all other electors, they are given but one vote, even if, in the end, their votes will have been ‘wasted’ for failure to back the elected candidate. If one resists the label ‘some persons, two or more votes’ then perhaps ‘one person, one vote’ coupled with ‘for some persons, one vote counted more than once’ is a fairer depiction. Either way, the challenge is the same.

Consider another valuation relevant to judging voting systems: the composition of the House of Commons and its role, in Bagehot’s phrase, in ‘electing our president’. Here again, the simplicity of the first-past-the-post system is both its virtue and vice: majority governments with minority support. Wherein trades the equivocation? A government with majority support in the House of Commons has but minority support in the population. How is the latter calculated? Not by pollsters, but by conflating each vote cast in a constituency for a candidate with a vote cast without constituency for a party.

Would AV remedy this problem? No. Votes would continue to be cast for candidates in constituencies, not parties nationwide. Might AV secure majority governments with majority support? Perhaps. But beyond the equivocation in measuring ‘support’ with 2nd and 3rd ‘preferences’, consider the prospect of more coalition governments. A coalition government would, by definition, secure majority support in the Commons, but could it claim majority support in the population? Not without further conflating the nature of the voter’s choice by stipulating that a vote for a candidate is akin to a vote for the candidate’s party to be in a coalition government. The stipulation confronts the challenge that the coalition agreement will take precedence over all party manifesto commitments made to the voter to secure his support in the first instance.

On this reasoning, query what it is that the voter will have cast a ballot for. Now consider, in turn, the choice that will confront electors come the term of the coalition government: each coalition partner will claim every success and disown every failure against the other. How might voters then rank their preferences? And can voters decisively ‘throw the rascals out’ other than by ranking but one preference for the opposition—that is, by tricking AV into the first-past-the-post voting system?

Among the relationships central to understanding the British constitution are the relationships of voter to ballot, ballot to MP, MP to Commons, Commons to government, party to them all, backbench to frontbench, government to opposition, and manifesto to government programme. For all of its failings, the existing first-past-the-post system allows us to grasp at each one of these relationships, in all their disharmony and incoherence. For all of the promises made in its favour, AV leaves us with many questions in attempting to understand how these relationships will come to be understood once the first among them is changed.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.

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Robert Hazell: Five reasons why the AV referendum will be lost

Yes to Fairer Votes launched their formal campaign for the AV referendum on 2 April.  Electoral reformers fondly suppose that if only the public were offered a better alternative to first past the post, people would be bound to vote Yes.  This piece does not go into the respective merits of AV and first past the post.  It simply forecasts that AV will be defeated, for the following reasons:

  • The public know nothing about electoral systems, and care even less.  The Constitution Unit did detailed research on public attitudes to different voting systems for the Independent Commission on the Voting System, and we found we were plumbing deep wells of ignorance.  The Yes campaign have a huge mountain of ignorance and indifference to overcome.  The government have given them very little time.
  • Even if the Yes campaign manage to engage people’s interest, they will find it hard to explain the difference between AV and FPTP.  AV is not a proportional system.  The overall result will not be that different from FPTP.  In the 2010 election it is estimated that the Conservatives might have gained 30 seats less, the Lib Dems 20 seats more, and Labour about the same.
  • The public will be confused by the arguments in the referendum, some technical, some contested, some misleading.  Research shows that when the public find political issues difficult or confusing, they look to political leaders that they trust to give them a lead on how to vote.  But the AV referendum offers no easy cues.  The Conservatives will campaign against, the Lib Dems for, and Labour are divided.
  • Clear signals from political leaders will be masked by the elections also being held on 5 May.  There are devolved assembly elections in Scotland, Wales and Northern Ireland, and local government elections in 80% of England.  The political parties will put their time and energies into campaigning in the elections, and not the referendum.
  • This is what happened in Canada, where they held referendums on electoral reform at the same time as provincial elections in Ontario (2007) and British Columbia (2009).  The political parties were silent about the referendum issues, and electoral reform was defeated in both cases.  The same is likely to happen in the UK.

Robert Hazell is Professor of British Politics and Government at UCL, and Director of the Constitution Unit.

This post originally appeared on The Constitution Unit’s Blog. (http://constitution-unit.com/)

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Liora Lazarus: The Composition of the UK Bill of Rights Commission

Mark Elliott has provided an excellent analysis of the terms of reference and options open to the recently established UK Bill of Rights Commission.  This post will focus primarily on the composition of the panel.   Conor Gearty has already blogged on this issue pointing to the fact that all of the members of the Commission are white, all but one are men, and that the average age of the Commission is around 62.    As Gearty notes, the race, age and gender mix of the Commission is a matter of some concern, and may well run contrary to the spirit, if not the letter, of the Equality Act 2010.

The decided lack of diversity of the Commission is a major weakness.  This isn’t to suggest that some of the members of the Commission are not passionate supporters of diversity and are not deeply committed to human rights.  Or even that the members themselves are not all honourable people.  But there is a significant question about the plurality of views that will be brought to the table. I am a South African.  There are many things concerning my country about which I am very worried, but the range of actors and groups engaged in the process of constitutional negotiation is not one of them.   It is something about which I am very proud.   The range of representation is also something which has given the South African Constitution genuine political credibility, even in the most testing of times, and an international status as a model of constitutionalism and human rights.  Compared to South Africa, the UK’s human rights Commission looks pale and uninspiring indeed.  I cannot imagine that the Commission will be something that UK citizens will feel proud of in ten years time.

But enough about that. I want to talk for a moment about other ways in which the Commission lacks plurality, and in some cases genuine expertise and independence of mind. There are eight QCs out of nine members.   Needless to say, there is a notable diversity of opinion between them, but this does raise the difficulty that a legalistic approach may predominate in thinking about the political and moral questions raised by the Commission.  It also raises the prospect that the culture of the Bar may prevail.

That said there is a decided variation in levels of expertise about, or sympathy towards, human rights amongst the QCs.  The conservative quota of the Commission is mostly made up of pamphleteers, who have campaigned about their rights sceptical positions in the public arena. Martin Howe QC is not a human rights lawyer, though he has made his antipathy to the European Convention on Human Rights an extra-mural activity over the last few years.  Jonathan Fisher QC is a tax and fraud specialist,  and is also an avowed Conservative sceptic of the Human Rights Act.  Anthony Speaight QC is also a commercial lawyer who, like Howe, has contributed towards the HRA sceptic literature of Society of Conservative Lawyers.

On the liberal democrat side are three major experts in human rights law.  Anthony Lester QC is an eminent human rights lawyer) and was the leading light in the development of the Human Rights Act. He is the co-author of one of the major human rights textbooks in the United Kingdom and the author of many other important articles and books on human rights.  Philippe Sands QC is a well known international human rights lawyer, who practices at Matrix chambers   He is the author of a number of books and articles on international human rights and is one the most distinguished academics on the panel, and one few members of the Commission who can claim to have genuine academic credentialsHelena Kennedy QC is equally well known for her lifelong work and practice in human rights and civil liberties and is the author of a number of important books on this subject.

This leaves Sir David Edward and Michael Pinto-Duchinsky.    Sir David Edward is presently a judge in the Court of First Instance, acted as a judge in the European Court of Justice (ECJ) (not to be confused with the European Court of Human Rights) and has had a career practicing in European Law amongst other things.  He is not strictly speaking a human rights lawyer, though his exposure to the European system does give him a unique position on the panel.

Michael Pinto-Duchinsky is the only non-QC or lawyer on the Commission.  Who is he? I must confess I had never heard of Michael Pinto-Duchinsky before he published the policy exchange document Bringing Rights Home.  Since then, I have heard of little else.  I was present at the JCHR hearing on ‘Human Rights Judgments’ on Tuesday March 15 2011) to which Pinto-Duchinsky gave testimony.  I would urge readers to watch the session – which also included Professor Jeremy Waldron and Lord Mackay of Clashfern.  A few things struck me about Pinto-Duchinsky’s performance.  One, he knew very little about human rights and the European Court of Human Rights, despite the report he wrote based on interviews with experts about the ECHR.  He repeatedly pointed out that he wasn’t a human rights lawyer or expert, and many times had to suggest that he go away and do more research about the questions asked.   Second, he received almost no questions or challenges from Dominic Raab, who spent most of the rest of the session pushing his own view of Strasbourg’s supposed ‘judicial activism’ and seeking to undermine the presentations.  Duchinsky and Raab evidently share a similar view, though Duchinsky is keen to note that he is only reporting the views of others.    All in all however, Duchinsky is not someone we can reasonably describe as an expert of good standing in the field of human rights.   As his testimony to the JCHR demonstrated, one report for Policy Exchange does not an expert make.

This brings me to my final point.  The Commission has been put together in a climate of serious antipathy towards human rights.  A climate which the Conservative Party and some notable members of the Labour Party have been generating from quite some time.  One need only look at the tenor of the parliamentary debate on prisoner voting (or read it in hansard) or the statement by Theresa May on the judgments on the sex offender’s register) to get a sense of the political climate presently.   This debate is not one which will go away.  It is one that needs addressing by members of good standing who have independence of mind and genuine expertise.  There are a  range of impressive academic scholars  in the UK and elsewhere who hold sceptical view about the legal protection of human rights. These moral and political philosophers, political scientists or lawyers, are informed thinkers who share a genuine concern to square parliamentary democracy with the protection of human rights.  I do not agree with all their arguments, but I take their views very seriously.  Jeremy Waldron – Chichele Professor of Social and Political Theory at Oxford and University Professor of  Law at New York University – is a scholar who leads this well populated field in the realm of political philosophy. I urge readers of this blog to watch Waldron’s testimony to the same session at the JCHR, not because I think he should be on the Commission, but because it serves as an example of publicly committed expertise on complex questions such as these.

The Conservative Party is not served by selecting a group of pamphleteers and campaigners just because they support their view.  Fisher, Howe, Pinto-Duchinsky, and Speaight cannot claim to be eminent human rights experts (no matter how much impressive work they have done in other fields).  Strong politicians should have the bravery to select genuine experts and eminent thinkers who share rights sceptical positions and who can bring fully informed views to the table.  Human rights debates are not only about matters of law or the jurisdiction of the European Court of Human Rights. They are matters of politics, and political morality, and ultimately about the shape of liberal democracy.  Depending on how the Commission conducts its deliberations, the opportunity to have a genuinely sophisticated deliberation about these matters may not yet be lost.  But the selection of some members of the Commission does speak to the anti-intellectualism of the Conservative Party.  A country like the United Kingdom that holds such political standing in the world, is about to have its ancient constitution discussed by a Committee made up not only of white people, who are mostly men and lawyers, it is also only partly populated by credible experts.

Liora Lazarus is a Fellow of St. Anne’s College and a lecturer in law at Oxford University.

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Polls Show Majority Against Alternative Vote

The Guardian has published an ICM poll on the Alternative Vote that shows a strong lead for the no campaign, with 44% against and 33% in favour of change.   Perhaps even more worrying for the yes campaign, of those intending to vote, 58% say they oppose AV.  This result is the same as that reported in YouGov’s most recent poll, commissioned by The Sun.

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Appointments to the House of Lords

According to the BBC’s James Landale, a cross-party group of peers have cautioned the PM not to make any more appointments to the House of Lords. The caution comes in a report from UCL’s Constitution Unit that says that the PM’s creation of 117 peers within the last year has had a “negative impact” upon the culture of the upper chamber. Readers of the blog who followed the filibustering and threatened guillotine during the passage of the Parliamentary Voting System and Constituencies Act 2011 might be minded to agree.

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Mark Elliott: The UK Bill of Rights Commission

In March, the Ministry of Justice announced the creation of a commission charged with the task of looking into the creation of a Bill of Rights for the United Kingdom. The creation of the commission—and the enactment of the Bill of Rights that it anticipates—has been a long time coming. The possibility of a domestic bill of rights has been regularly mooted by successive governments frustrated at being on the receiving end of judgments under the Human Rights Act 1998. The creation of the commission inevitably raises a number of questions. One set of such questions, concerning the composition of the panel and the method by which its members were selected, are considered in a separate blog post. This post, meanwhile, is concerned with two other issues raised by the establishment of the commission: its terms of reference, and the options open to it.

Terms of reference

The Bill of Rights commission was foreshadowed by the Coalition Agreement, which, in this area as in many others, sought to paper over divisions of opinion between the Conservatives and the Liberal Democrats by establishing a review. In their 2010 general election manifesto, the Lib Dems undertook to ‘[e]nsure that everyone has the same protections under the law by protecting the Human Rights Act’. The Conservative Party, meanwhile, said that it would ‘replace the Human Rights Act with a UK Bill of Rights’. That somewhat opaque manifesto position inevitably fell to be read against more direct statements by Conservative spokesmen, some of which evidenced strong scepticism about the HRA. For instance, David Cameron said that the HRA should be replaced with a British Bill of Rights in order to ‘define the core values which give us our identity as a free nation’ while facilitating a ‘hard-nosed defence of security and freedom’. The implication was that the HRA precluded a sufficiently hard-nosed approach in such areas. The further implication was that a domestic Bill of Rights would strike the balance differently between individuals’ rights (particularly those of such undesirables as terror suspects) and the interests of a the ‘law-abiding majority’ (a constituency almost as precious to politicians of all stripes as ‘hard-working families’).

Cameron’s above-quoted comments were issued some time ago, in 2006. However, they remain a contemporary reference point, at least for the present Attorney-General, and the Conservatives have continued, since assuming office, to imply that a Bill of Rights would be some sort of panacea that would allow the balance between individual rights and the public interest to be revisited. A case is point is the Prime Minister’s reaction to R (F) v Secretary of State for the Home Department [2010] UKSC 17, in which the Supreme Court upheld a declaration of incompatibility concerning s 82 of the Sexual Offences Act 2003. The requirement that certain sex offenders be indefinitely subject to ‘notification requirements’, with no prospect of reprieve in the event of rehabilitation, was held to be a disproportionate breach of Article 8 ECHR.  This judgment, said the Prime Minister, was ‘offensive’ and flew ‘completely in the face of common sense’. He also said that a Bill of Rights commission would be ‘established imminently because I think it’s about time we started making sure decisions are made in this Parliament rather than in the courts’.

Against this background, the Commission’s terms of reference look decidedly odd. Alongside a requirement to advise on reform of the Strasbourg Court, the Commission’s principal task is to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’. It must also ‘examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties’. This appears to leave little, if any, room for doing the sort of thing anticipated by David Cameron’s reaction to the sex offenders case. It was implicit in his remarks—and has been similarly implicit in the sceptical rhetoric of other Conservatives—that a British Bill of Rights might confer upon politicians (and so Parliament) greater latitude, thereby enabling them to strike a different balance between individuals’ rights and (their conception of) the public interest.

The solution to this conundrum, of course, lies in the politics of coalition. While Lord McNally, the Lib Dem Justice Minister, regards the ECHR as ‘part of our DNA’, it has been reported that the Conservative Party may undertake a policy review separate from that to be conducted by the Bill of Rights Commission—presumably with a view to bringing forward, for the 2015 election, proposals more radical than those that would be possible under the Commission’s terms of reference. Indeed, a recent Policy Exchange paper floated precisely such possibilities—including withdrawal from the jurisdiction of the European Court of Human Rights or even from the Convention itself; one of its authors now finds himself on the Bill of Rights Commission. The Conservatives do not, however, speak with one voice on this issue. In 2006, the Justice Secretary, Kenneth Clarke, is reported to have said that the proposal for a British Bill of Rights was ‘xenophobic and legal nonsense’. And, more recently, the Attorney-General, Dominic Grieve, said that the Convention rights ‘reflect deeply held British values on the rights of the individual against arbitrary or excessive state power’.

Options

Against that background, an obvious question arises. Given the constraints inherent in its terms of reference, and leaving aside, for the time being, the possibility of a separate Conservative Party examination of more radical policies, what options are open to the Commission? It seems likely that the Commission will propose that a UK Bill of Rights should extend to certain rights—the most obvious being the right to trial by jury for certain types offences—that are not covered by the ECHR. In the light of the fact that the Convention acts a ‘floor’ rather than a ‘ceiling’, such an ‘ECHR-plus’ model would be unproblematic per se.

But of course HRA-sceptics are not agitating for an ECHR-plus model; rather, they contend for the adoption of an approach that would allow UK lawmakers greater freedom when it comes to trading off individual rights against other interests. Is there any scope for such an approach, bearing in mind the limitations imposed not just by the Commission’s terms of reference but also by law? The Attorney-General certainly thinks so. In an article published on the ConservativeHome website in 2009, endorsing Lord Hoffmann’s Judicial Studies Board lecture criticizing the Strasbourg Court, Dominic Grieve made it clear that while he has no difficulty with the text of the Convention, the same is not true of the way in which it is judicially interpreted and applied.

He argues that ‘there is no duty in the ECHR to follow Strasbourg case-law, and the obligation on the UK to respect Strasbourg Court adverse decisions, in a particular case to which it is a party, is an international treaty obligation and not a legally enforceable matter at all’. This statement conflates two propositions, both of which are, in any event, indefensible. On the one hand, the Convention certainly does require states to abide by the Court’s decisions: Article 46(1) provides that, ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’ And, more generally, Article 1 provides that, ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ On the other hand, there is the question of enforceability. Grieve appears to take the view that whatever obligations exist under the Convention are legally unenforceable because they are (merely) international obligations deriving from a treaty. Of course, questions about the ways in and the extent to which such obligations are enforceable is a complex question, but imply, as Grieve does, that we ought to be ultimately untroubled by Convention obligations because of their source in international law is disappointing, to say the least.

Grieve’s article also provides some insight into what the Government might have had in mind when it instructed the Bill of Rights Commission to ‘examine the operation and implementation of these obligations’. The possibilities fall under two main headings: interpretative and remedial.

On the interpretative level, it is possible that a UK Bill of Rights might encourage, or direct, British courts to follow the Strasbourg jurisprudence less slavishly than they have sometimes been inclined to. As is well known, section 2 of the Human Rights Act 1998 merely requires UK courts to ‘take into account’ Strasbourg jurisprudence; yet, as is also well known, British courts normally treat themselves as bound to follow the European Court’s interpretation of the Convention. Of course, if a matter falls within the ‘margin of appreciation’, there is some room for manoeuvre on the part of national authorities (including national courts). So, for instance, a Bill of Rights might conceivably direct domestic courts to consider the relevance, if any, of the margin of appreciation concept before deciding whether it is necessary to follow Strasbourg decisions relating to other jurisdictions. If, however, the European Court has rendered an interpretation of the Convention in a case that is salient and to which the UK was a party, it is hard to see what wriggle room an appeal to the margin of appreciation would be capable of creating.

This explains why British judges have sometimes reluctantly followed on-point Strasbourg jurisprudence with which they disagree. Perhaps the best example of this phenomenon is furnished by Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, in which the House of Lords followed the Grand Chamber’s decision in A v United Kingdom (2009) 49 EHRR 29 concerning the fairness, in Article 6 terms, of special advocate proceedings. Most notably, Lord Hoffmann fell into line with Strasbourg only through gritted teeth. Its decision, he said, ‘was wrong and … may well destroy the system of control orders which is a significant part of this country’s defences against terrorism’. Nevertheless, he followed it because the UK ‘is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention.’ It is clear, then, that on a proper understanding of the legal position, the scope for interpretative latitude is limited. Of course, the position would be different if, as Dominic Grieve advocates, the Strasbourg Court made greater use of the margin of appreciation doctrine. In such circumstances, the opportunities would be greater for differential domestic interpretations of the Convention. But that is an approach that could only be brought about at a European level, not through the adoption of a British Bill of Rights.

What, then, of the remedial options that the Commission might explore? Here, too, Grieve’s article raises some possibilities that perhaps offer a clue as to the types of things that the government would like the Commission to consider. First, referring to the so-called fast-track amendment procedure under section 10 of the Human Rights Act, Grieve argues that, ‘It is wrong that primary legislation can be altered by Statutory Instrument if found incompatible with the Human Rights Act.’ It is unclear whether this sentiment reflects general discontent with Henry VIII powers, or whether, bizarrely, Grieve considers such powers to be particularly egregious in circumstances where they are used to ensure that UK law complies with international human rights standards. If the former, then it will be interesting to see whether this is manifested in government reluctance to secure and retain Henry VIII powers in other spheres.

Secondly, a more substantially, Grieve—referring to the way in which he perceives courts to have discharged their interpretative obligation under section 3 of the Act—says that it is wrong that courts should ‘have power to stand a statute on its head’. The proper reach of the interpretative obligation is, of course, a contentious matter. Whether, for instance, the House of Lords went too far in the seminal case of Ghaidan v Godin-Mendoza [2004] UKHL 30 is a question that invites disagreement. But the debate about the lengths to which courts are (under section 3) or should be (under a Bill of Rights) required to go in terms of rights-consistent interpretation is not one that can take place in isolation from the wider context. Under the present scheme, if consistent construction is impossible, a declaration of incompatibility under section 4 is issued, in effect, as a matter of course. And, in such circumstances, the government—assuming, that is, that it is not prepared to play fast and loose with its obligations under the ECHR—is, in effect, required to amend the law. Even if British courts—like their New Zealand counterparts—were denied explicit declaratory powers in such cases, the courts’ inability to render a consistent construction would amount to a de facto declaration that UK law was deficient judged in Convention terms. To contend, then, that the courts’ interpretative powers should be weakened is to presuppose that this would carve out for lawmakers a degree of latitude for which the Convention simply does not provide.

The bottom line is very simple. For as long as the United Kingdom is a party to the ECHR, its freedom as a matter of (international) law is constrained by that instrument and by the way in which the Strasbourg Court interprets it. None of this is to suggest that either the Strasbourg Court or the Human Rights Act is perfect. There are undoubtedly aspects of the former (such section 6, which concerns the scope of the Act) that could usefully be changed or clarified; and it is widely recognized that the Court (including the way in which judges are appointed to it) is in need of institutional reform. However, the suggestion which is (at least implicitly) made by those HRA-sceptics who advocate a British Bill of Rights—that the adoption of such an instrument would open up an opportunity for rebalancing rights and ‘responsibilities’, or for greater trading off of individuals’ rights against those of the ‘law-abiding majority’—is inaccurate. Significant latitude could be created only by withdrawing from the ECHR—a step which would carry legal complications of its own, and which would be reputationally devastating for the United Kingdom.

And there is, of course, a bigger point that lurks beneath all of this. Those who put their faith either in legislative reform or in the pursuit of nuclear options such as withdrawal from the ECHR implicitly assume that the political branches ultimately have sole control in this area. Given the development of the notion of common law constitutionalism, and certain judges’ strikingly robust remarks about the legal fundamentality of certain constitutional rights and values, that assumption is a somewhat naïve one. But that is an issue for another day.

Mark Elliott is a Fellow of St. Catharine’s College and a Senior Lecturer in Law at Cambridge University.

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Aileen McHarg: Axa General Insurance Ltd. v. The Lord Advocate

The Inner House of the Court of Session has handed down its much-anticipated judgment in  Axa General Insurance Ltd. v. The Lord Advocate [2011] CSIH 31.  Probably the most important decision on the validity of devolved legislation to date, it concerns whether Acts of the Scottish Parliament (ASPs) are subject to review on common law grounds in addition to the specific grounds set out in the Scotland Act, and resolves a conflict of authority in the Outer House on this point.  The case was brought by four insurance companies in respect of the Damages (Asbestos-Related) (Scotland) Act 2009, which provides that pleural plaques and certain other asbestos-related conditions constitute non-negligible personal injury which is actionable under Scots Law.  The Act was passed in response to the House of Lords’ decision in the English case of  Rothwell v. Chemical Insulating Co. Ltd. [2008] 1 AC 281, which held that damages were not recoverable, since although evidence of exposure to asbestos, pleural plaques do not in themselves produce any harmful symptoms nor do they contribute to the development of other, harmful, asbestos-related conditions.  As well as claiming a breach of Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR) (a challenge based on Article 6 was not renewed on appeal), the insurance companies argued that, in reversing Rothwell, the Damages Act was irrational at common law.  The Inner House unanimously agreed with the Lord Ordinary (Lord Emslie) that the Act was not invalid on either ground.  However, they took a different view on the availability of common law grounds in principle.  The case also makes important rulings in relation to title and interest to bring, and more unusually to defend, challenges to ASPs.

Title and Interest

The respondents argued that the petitioners were not ‘victims’ in respect of the A1P1 challenge, nor did they have sufficient title and interest in respect of the common law challenge.  The Inner House rejected both contentions.  On the former point, since the insurance companies were in practice the ones who would bear the costs of actions based on the 2009 Act, they were sufficiently directly affected by it to be classed as ‘victims’ under Art 34 ECHR.  On the latter, the court considered that a broad approach to questions of title is appropriate in matters of public law.  In passing legislation, the Scottish Parliament has a duty to members of the public to act in conformity with the law.  Hence, following Wilson v IBA 1979 SC 351, individual members of the public who are adversely affected by legislation are entitled to challenge it, provided that they can qualify interest to do so.

On the other hand, the Inner House upheld the petitioners’ objection to the decision to allow eight individual sufferers from pleural plaques to enter the process as respondents, on the basis that being a beneficiary of legislation does not confer title and interest to defend it against a challenge to its validity.  Rather, the appropriate contradictor is the promulgator of the legislation or their representative, in this case the Lord Advocate, and other interested parties should enter the process as interveners.

Article 1, Protocol 1

The Inner House accepted that the petitioners’ property rights, in the form of their capital assets, were engaged by the legislation, although they rejected the claim that the ‘immunity’ from suit conferred on them by Rothwell itself counted as an asset.  They also accepted, unlike Lord Emslie, that there had been an ‘interference’ with the petitioners’ property in terms of A1P1.  However, they had no difficulty in finding that the interference was justified.  The petitioners argued that, in granting damages to the ‘worried well’, the legislation served no legitimate public interest, and that placing the costs of such a policy on insurance companies imposed a disproportionate burden on them.  Not surprisingly, the court rejected both arguments.  The Scottish Government and Parliament were entitled to take the view that the Rothwell decision amounted to a social injustice, and that the anxiety caused by confirmation of exposure to asbestos was a matter worthy of monetary compensation.  Moreover, the decision to place liability on employers and their insurers rather than, for example, setting up a public compensation fund was not disproportionate.  Insurers take the risk that the law might develop in ways adverse to their interests, and A1P1 does not always require that compensation be paid in order to justify interference with property rights, especially in cases where the state is concerned to rectify what it sees as a social injustice as between categories of its citizens.

Common Law Grounds

In Adams v. The Scottish Ministers 2003 SLT 366, Lord Nimmo Smith held that ASPs were a form of legislation which was sui generis, but which had more in common with primary than secondary legislation, and hence could be challenged only on the grounds set out in the Scotland Act.  In Axa, at first instance, Lord Emslie disagreed.  Although accepting Lord Nimmo Smith’s characterisation of ASPs, he took the view that all statutory bodies were subject to control by the courts at common law, unless there was something in the governing statute to exclude review, which was not the case here.  ASPs could therefore be challenged on the full range of common law grounds, including irrationality, albeit the intensity of review would be limited.  Drawing an analogy with cases involving subordinate legislation which had been subject to Parliamentary approval, irrationality challenges would not be available ‘short of the extremes of bad faith, improper motive or manifest absurdity,’ which standard was not met in this case.

The Inner House in Axa steered a middle course between these two positions.  While the judges agreed that ASPs are essentially in the nature of primary legislation, much more proximate to Acts passed at Westminster than to subordinate legislation, even that subject to Parliamentary approval, there is nothing in the Scotland Act which gives ASPs the status of Acts of the UK Parliament.  The recognition that ASPs are sui generis thus called for a new approach to their review.  The traditional grounds of common law review are not, without modification, apt for them.  While, illegality review is available, in terms of breach of the limits on legislative competence set out in the Scotland Act, ASPs are not apt for review for procedural irregularity, nor for irrationality, even in its extreme sense.  But this does not mean that the Court of Session could never strike down ASPs on common law grounds.  In particular, if a case were made out on grounds of ‘bad faith’ or ‘improper motive’, which are not truly aspects of irrationality, the court might well hold itself entitled to intervene.  Similarly if the Scottish Parliament were to take an exceptional measure of the kind contemplated by Lord Steyn in R (Jackson) v. Attorney General [2006] 1 AC 262 it might be challengeable at common law.

Again, however, no such exceptional case was made out here.  Indeed, the court went out of its way to emphasise that, even if an irrationality challenge had been available, it would have failed.  Although, they said, the House of Lords’ reasoning in Rothwell might in retrospect seem compelling, it was not inconceivable that the decision might have gone the other way.  Indeed, for a significant period prior to the decision, insurers had de facto accepted liability for pleural plaques, and this was something that the Scottish Parliament was entitled to take into account as a matter of political judgment.

Conclusion

On the substantive validity of the Damages Act, the Inner House is surely correct.  The insurance companies have declared their intention to appeal, in the apparent belief that their arguments will be viewed more sympathetically by the Supreme Court than by the Scottish courts. (See the discussion here.) However, this seems unlikely, as to strike down the Act would be tantamount to saying that legislation is not permitted to alter the common law of negligence.  On the issue of principle, the Inner House’s approach is interesting.  While the decision is welcome to those of us who have argued that the Scottish Parliament is not just another statutory body, and that ASPs are properly to be regarded as primary legislation,* it provides further evidence that primary legislation is not per se immune from judicial review.  Notwithstanding the court’s claim to be adopting an approach tailored to the sui generis nature of ASPs, it appears to have been strongly influenced by the developing theory of common law constitutionalism, and in particular the House of Lords’ decision in Jackson, which is quoted from at length.  The decision rejects, for instance, the relevance of arguments based on the reviewability of Acts of the pre-Union Parliament of Scotland or of colonial legislatures.

Given the doctrinal and theoretical importance of this issue, the prospect of an appeal to the Supreme Court is probably a good thing.  Nevertheless, it will mean further delay in meeting claims from pleural plaques sufferers, some of whom may die in the meantime.  This underlines the real objection to loose judicial talk in cases such as Axa and Jackson about the possibility of striking down legislation in extreme cases.  The danger is not so much that an extreme case will ever materialise (although, as Mullen has argued, there is always a risk, once the possibility of review is admitted, that the threshold for intervention will be lowered in future).  Rather, leaving the door to the courts open just a chink encourages speculative challenges which give the powerful another route by which to promote their political interests.  Sometimes delaying implementation, or even frightening off the opposition, might be as good as a substantive victory.  In other words, judicial sabre-rattling may change the way the political game is played, even if battle is never actually joined.

*   See, e.g., A McHarg ‘What is Delegated Legislation?’ [2006] PL 539; T Mullen ‘The Axa Insurance Case: Challenging Acts of the Scottish Parliament for Irrationality’ 2010 SLT 39; A Page ‘The Scottish Parliament, Pleural Plaques and the Court’ 2010 JR 139.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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Robert Hazell: Royal Wedding: congratulations, or commiserations?

While we must all be happy for Prince William and Kate Middleton on their wedding day, we must also be aware of the heavy burdens which will be thrust upon them. Prince William was born into the Royal family and had no choice; but for Kate there was a choice.  She could have remained a private person; but from now on she will become public property.

Members of the Royal family do not enjoy some fundamental human rights which the rest of us take for granted:

  • They have very little privacy.  The rest of us have a right to private and family life.  William and Kate will be pursued by photographers wherever they go.  Their children will also be the subject of intense media interest.  Celebrities choose to be in the public eye; Royals have no such choice.
  • They have no choice of career.  William’s choices are effectively limited to military service or charitable good works.  Senior members of the Royal family cannot go into business.  Kate has already given up her job in preparation for the wedding
  • They have no freedom of speech.  Prince William is not free to say what he thinks, in particular on anything remotely political.  Although Kate is less restricted, she also has to be extremely careful not to be drawn into political or public controversy
  • They have no freedom of religion.  If Prince William or Kate were to become a Roman Catholic, he would have to step out of the line of succession and renounce any claim to the throne
  • Members of the Royal family are not free to marry whom they wish.  Royal marriages require the consent of the sovereign; and that consent depends upon government approval.  Government approval was withheld from King Edward VIII’s proposed marriage to Wallis Simpson in 1936; and from Princess Margaret’s proposed marriage to Peter Townsend in 1955.

The burdens of monarchy were clearly brought out in the film The King’s Speech.  That depicted graphically the loneliness of the position, the constant pressure to put on a good public performance, and the difficulty of finding close confidants with whom to share the burdens.  To that must now be added the insatiable demands of the modern media, who will be watching their every move.  We wish them well; but we should also understand what burdens they assume in our name.

Robert Hazell is Professor of British Politics and Government at UCL, and Director of the Constitution Unit.

This post originally appeared on The Constitution Unit’s Blog. (http://constitution-unit.com/)

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