Monthly Archives: December 2012

Ryan Goss: What is the Bill of Rights Commission’s ‘strong argument’?

GossThis week’s report from the Commission on a Bill of Rights was entitled ‘The Choice Before Us’. In framing that choice, a majority of the Commission concluded that, ‘on balance, there is a strong argument in favour of a UK Bill of Rights’. In this post, I explore and test that ‘strong argument’ as it is developed in the Commission’s report. I ask whether the argument developed in the report is as strong as the majority might like us to believe.

The report does not articulate its ‘strong argument’ in a particularly pithy way  (perhaps this is a result of the fractured nature of the Commission’s report – there are minority views on particular points as well as separately-explained-but-concurring majority opinions, and a series of additional opinion papers). Instead, a series of constituent sub-arguments appear to form the central ‘strong argument’ spoken of by the majority. It is to these sub-arguments that I turn. In doing so I draw on the Overview and the substantive section of the report.

The majority begin by noting that ‘the other 46 signatory states to the European Convention on Human Rights generally have their own written constitution, their own national bill of rights written in their own words or both’. This observation, the majority states, would only be ‘a piece of academic curiosity, if there were widespread public acceptance of the legitimacy of our current human rights structures’. At this point we might pause briefly to wonder whether the Commission inquired into the levels of ‘widespread public acceptance’ of human rights structures in the other 46 states (the lengthy comparative sections in Chapter 5 certainly give no detailed consideration to levels of ‘public acceptance’ in other comparable jurisdictions). Without such consideration, the Commission’s sub-argument in this regard risks confusing the existence of national bills of rights with the widespread public acceptance of those bills of rights.

The report develops its concern about public acceptance by holding that ‘there is a lack of public understanding and “ownership” of the Human Rights Act’ and of the European Convention on Human Rights. The ownership argument appears to be twofold. First, the majority report concludes that there is a lack of understanding about the current human rights arrangements. Second, there is the suggestion that the current arrangements are ‘widely regarded by the public as “foreign” or European’.

Some might think that concerns about ‘lack of understanding’ and ‘regard’ could be addressed by improving understanding about existing arrangements rather than by far-reaching constitutional reform. Not the majority. Those members of the commission found it ‘hard to persuade themselves that public perceptions are likely to change in any substantial way as a result [of better public education and understanding], particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media’.

Instead of education, therefore, the majority issues a carefully-caveated call for a new British Bill of Rights incorporating and building ‘on all of the UK’s obligations under the European Convention on Human Rights’. Here we must pause again to consider the Commission’s logic: the problem, as identified by the Commission, is poisoned public understanding in a politicised and polemical environment. The Commission does not think a public education campaign about the existing system can overcome such politicisation, but is nonetheless apparently confident that ‘some commentators and some sections of the media’ will restrain their polemicism when it comes to a new structure built on and incorporating the old structure. A triumph of hope over experience?

Naturally the notion of a Bill of Rights built on and incorporating existing rights leaves plenty of room for ambiguity. The Commission, for example, suggests that a Bill of Rights might ‘define more clearly the scope of some rights and adjust the balance between different rights’. One wonders if such definition and adjustment could easily be done consistently with the UK’s obligations in Strasbourg. We might also wonder whether the apparent concerns about ‘Europeanness’ and ‘foreignness’ would truly be addressed by a new structure built on and incorporating the existing relationship with Strasbourg. (The separate opinion of Lord Faulks QC and Jonathan Fisher QC develops the sceptics’ arguments).

The majority also suggests that, while any Bill of Rights ‘should have at its core the rights currently in the European Convention’, the language of the Bill need not be ‘identical’ to that of the Convention. Instead, the Bill of Rights could be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’. If the Commission is right and the public discourse is so politicised and polemical that the public cannot be educated about the existing system, we might wonder about the extent to which the public can be educated about the details of the language of a proposed Bill of Rights. Moreover, it is admirably optimistic for any group of lawyers to argue that two differently-drafted sets of rights could be practically identical in effect. Either the two sets of rights are different, in which case the UK risks placing itself in contravention of the UK’s obligations in Strasbourg (which may or may not be a problem, but is something which must be honestly confronted), or the two sets of rights are identical, and the British people would be being sold the same old rights in different clothing (one might wonder what the ‘polemical’ commentators and media analysts might make of such a manoeuvre).

The Commission is careful to identify reasons to proceed slowly and respectfully of existing constitutional arrangements. But if there is indeed ‘a choice before us’, the future of human rights protection in the UK deserves open and honest discussion of the alternatives, and the arguments for and against major constitutional change. Unfortunately, as the Commission itself notes seemingly without irony, ‘it is not always easy to disentangle…what are tactical positions rather than fundamental beliefs’.

There may be an argument made in the majority’s report. But is it a strong argument?

 

Ryan Goss is a Junior Research Fellow in Law, Lincoln College, Oxford

Suggested citation: R. Goss, ‘What is the Bill of Rights Commission’s ‘strong argument’?’   UK Const. L. Blog (20th December 2012) (available at http://ukconstitutionallaw.org,

1 Comment

Filed under Constitutional reform, Human rights

Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

a_ocinneideThe Commission on a Bill of Rights has reported. As expected, its members did not reach agreement on a common set of conclusions. Seven of the nine commissioners took the view that there were ‘strong arguments in favour of a UK Bill of Rights’, on the basis that it would represent a ‘fresh beginning’ and provide a way of  side-stepping the  ‘highly polarised debate’ that now surrounds the HRA. In their view, such a Bill of Rights should provide ‘no less protection than is contained in the Human Rights Act’, and be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’ in order to attract  ‘greater public ownership’ and popular legitimacy than the HRA currently enjoys. However, two commissioners, Baroness Kennedy QC and Philippe Sands QC, disagree: in their view, the majority have failed to identify any real shortcomings in the functioning of the HRA, the case for introducing a new Bill of Rights has not been made, and there is a real risk that the majority’s conclusions will be used to justify attempts to ‘decouple’ the UK from the ECHR system of rights protection and to dilute rights protection for non-citizens and other vulnerable groups.

Media and political reaction to the Commission’s report has been largely hostile. Many commentators have already written it off in Sadiq Khan MP’s phrase as a ‘dog’s breakfast’, and it may disappear into political limbo. However, public lawyers will find much in the report to sink their teeth into, even if not everything in it will be to their taste.

To start with, the Commission’s report engages seriously with the complexity of UK human rights law while attempting to stay within its constrained terms of reference. As Adam Wagner has suggested, it has produced an ‘interesting health check of the human rights system as it is functioning today, warts and all’. It shows considerable sensitivity when it comes to the devolved regions, and correctly makes the point that any move towards drawing up a UK Bill of Rights must proceed gradually and take place within the context of a wider constitutional debate. The majority also make the important point that most Council of Europe member states have national bill of rights which often protect rights to a similar or even a greater degree than the ECHR while also attracting a high degree of ‘public ownership’, in contrast to the HRA.

However, the majority then leap to the conclusion that a UK Bill of Rights couched in suitably resonant language could come to enjoy a similar status. This is a big assumption. Not all national bill of rights have enjoyed a charmed existence – for example, the Canadian Bill of Rights 1960 failed to attract popular affection or to protect rights to any meaningful degree. Everything depends on the content of a Bill of Rights, its mode of enactment and the substance of the legal protection it provides for human rights – and the majority report is remarkably vague when it comes to these key points.

For example, the majority provide little detail as to how any UK Bill of Rights might function in concrete legal terms. They suggest that the ‘mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act’ and in particular should contain a similar mechanism to the declaration of incompatibility provided for under s. 4 HRA. However, by mentioning s. 4 while conspicuously omitting any reference to s. 3 HRA, this conclusion obscures more than it illuminates when it comes to the key question of how much freedom should courts have to interpret legislation in a manner that complies with human rights principles. Crucially, the report is also silent on the key legal issue as to whether Convention rights as interpreted by the European Court of Human Rights should continue to be applied by national courts in tandem with any new national provisions, as is the case in every other member state of the Council of Europe.

The majority does reach a clear conclusion that socio-economic and environmental rights should not be protected under any future UK Bill of Rights, on the basis that it is ‘undesirable in principle to open up to decisions of the judiciary issues which, in their view, are better left, to elected legislatures’. In contrast, it concludes that a Bill of Rights could protect some additional rights such as the right not to be discriminated against on the grounds of ‘innate characteristics’, such as gender or ethnic origin. However, this specific right is already effectively protected under EU law and the Equality Act 2010, and the report sheds little light on what other rights could be protected that are not currently covered by the HRA.

In general, the majority report reads like a summary of the limited common ground shared by the seven commissioners who agreed to lend their names to it. The differences it glosses over are graphically illustrated by the separate papers written by various members of the Commission which are attached to the main report. These papers present a fascinating diversity of views, and highlight the tenuous nature of the common ground shared by the majority.

For example, Martin Howe QC sets out in detail in a paper entitled ‘A UK Bill of Rights’ how he thinks such a Bill of Rights could be worded using the language of the common law so as to provide better protection for basic civil and political rights than currently exists under the ECHR/HRA. However, he also suggests that such a Bill of Rights could legitimately grant non-nationals a lesser degree of rights protection than currently exists under the ECHR/HRA. Furthermore, in a subsequent paper entitled ‘Entrenchment of a UK Bill of Rights’, he agrees with Anthony Speaight QC that the judicial power to re-interpret legislation under s. 3 HRA should be significantly pruned back. In other words, Howe’s proposal would provide a significantly lower level of legal protection for rights than is currently available under the ECHR/HRA.

In contrast, in a joint paper entitled ‘Unfinished Business’, Lord Faulks QC and Jonathan Fisher QC show little interest in working out the intricacies of how a UK Bill of Rights might be designed. Instead, they make it clear that, in their view, the function of any home-grown UK Bill of Rights would be to limit the influence of what they consider to be the ‘judicially activist’ European Court of Human Rights. Their paper cites a grab-bag of sources, including the Mail on Sunday letters column and some rather selectively interpreted judicial writings, to make the case that the case-law of the Strasbourg Court has diminished respect for human rights in the UK, and present the proposed Bill of Rights as a first step in altering this narrative.

A third and radically different perspective is provided by Lord Lester QC in a paper headed ‘A Personal Explanatory Note’. Lord Lester both defends the Strasbourg Court against its critic and argues that the HRA is ‘a well-drafted and subtle compromise respecting both Parliamentary sovereignty and the need for effective legal protection of fundamental rights’. In his view, a home-grown Bill of Rights would build upon the achievements of the HRA, by approaching European human rights law ‘through UK law rather than around UK law’ and rooting human rights protection in deep British constitutional soil.

In other words, the majority disagree sharply on the key questions on the purpose and function of any future UK Bill of Rights and its relationship with the ECHR system of rights protection. However, they nevertheless agree that a UK Bill of Rights would represent an improvement on the status quo, on the basis that it would have a better chance of attracting public ownership. This conclusion seems to be based on a considerable faith in the symbolic appeal of any such future Bill of Rights and its capacity to bridge the current sharp divide that exist between supporters and opponents of the current state of UK human rights law. As Baroness Kennedy and Philippe Sands point out in their powerfully-argued dissenting opinion, entitled ‘In Defence of Rights’, it is ‘difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain’.[1] Furthermore, as I have argued elsewhere, it remains open to question whether a UK Bill of Rights could in fact resolve all the current controversies that surround human rights law.

In general, it is hard to avoid the impression that the Bill of Rights debate has moved on from when the Commission was initially established in March 2011. It seems to have served as a learning process through which Tory politicians and think-tanks in particular have identified what they consider to be the real enemy, namely the alleged judicial activism of the Strasbourg Court. This is graphically demonstrated by an article published in the Daily Telegraph by the Justice Secretary (and Lord Chancellor) Chris Grayling MP on the day that the Commission published its report, where he promised only to ‘read and digest’ the Commission’s report while making it clear that the real problem as he sees it with human rights law is that the Strasbourg Court ’has overstepped the mark’. Mark Elliott, David Feldman and myself writing on this blog have highlighted the potentially serious consequences of Grayling’s suggestion that ‘it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters’. However, it is clear that the real debate is now focused upon the UK’s relationship with the ECHR, and not on whether a new UK Bill of Rights is necessary or desirable.

Colm O’Cinneide is a Reader in Law at University College London. 

Suggested citation: C. O’Cinneide ‘The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?’  UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org,

[1] Kennedy and Sands also make the important point that political and public attitudes towards the ECHR/HRA are not as uniformly antagonistic as the majority assume, especially when viewed from the perspective of the devolved regions.

Leave a comment

Filed under Constitutional reform, Human rights

Cormac Mac Amhlaigh: Whether You Agree With its Conclusions Or Not, the Bill of Rights Commission Hit On An Important Issue For Human Rights and the Future of Britain.

cormacSo the Bill of rights Commission has produced its final report after a 21-month long study into the state of human rights in British law, tackling the major question of whether Britain needs a Bill of Rights.  The  reaction from the legal fraternity has been marked by, well, slight disappointment.  The biggest news of the report seems to be less its content and more the fact that it failed to reach unanimity on  the questions in its terms of reference, such was the disagreement among its members about how to proceed.  For some this was inevitable given the competing factions and vested interests which led the creation of the commission in the first place.

On the million dollar question of whether Britain needs a bill of rights, the plurality (given that there was no consensus) gave a qualified yes.  One of the main reasons for this conclusion was the fact that the other obvious candidate for the title of Britain’s bill of rights, The Human Rights Act 1998, lacked sufficient ‘ownership’ by the public at large .  A domestic bill of rights which, significantly, would build on, rather than replace, the rights contained in the Human Rights Act, would go some way in fostering popular engagement with human rights.

For some, not least the dissenting minority report of the commission, the necessity of a bill of rights is at best superfluous and at worst a smoke screen for more sinister motives such as undermining the rights already protected under the European Convention of Human Rights or a prelude to the UK’s withdrawal from the Convention.  Whichever interpretation of the motivations of the plurality’s recommendations in the report, it does hit on an important issue.

Historically, bills of rights, as much as written constitutions, have been the product of a rupture with the past and the symbol of a brighter future.  The French Declaration of the Rights of Man and the Citizen and the Bill of rights stitched into the US constitution as a series of amendments were part of the process of transition from the ancien regime to the founding of a new political community.  More recently the German and Italian constitutions’ robust bills of rights, the myriad bills of rights of post-colonial constitutions, and those of the former soviet bloc countries and the new South Africa were all part of a transition from past tyranny to a more just future.

In this sense, bills of rights have played a strong identificatory function, a robust statement of the identity of a newly founded political community. The identity of this new community was marked by what it was not; a rejected ‘other’ be it a tyrannical monarch on the other side of Atlantic, as in the US case, or closer to home as in France, brutal dictatorships as in Germany, Latin America or the ex-Soviet countries or an odious regime such as apartheid in South Africa.

This identificatory function of a bill of Rights is something which the Human Rights Act, or indeed the Bill of Rights commission itself, would have difficulty fulfilling. Whereas copying and pasting from international human rights instruments into a domestic bill of rights as the Human Rights Act essentially does is not uncommon (see the ex-Soviet state constitutions and the myriad post-colonial constitutions), the nature and passage of the human rights Act, an ordinary Act of parliament passed pursuant to an election manifesto, was not quite the wide-ranging deliberative ‘constitutional moment’ which could have discharged this identificatory function.  The bill of rights commission itself, while proposing a constitutional convention amongst its recommendations, could not have hoped to discharge this function either, so limited was its remit, membership and visibility among the wider public.

The identificatory function of a bill of rights is considerably complicated in an increasingly dis-United Kingdom.  One of the reasons for the equivocation in the opinion of the plurality as to when such a bill of rights should be created in the report was the fact that with a referendum on Scottish independence looming, and a parallel bill of rights process for Northern Ireland ongoing, that the question of drafting a bill of rights  for the UK as a whole, would require the resolution of the constitutional question of the shape of the United Kingdom into future.

However, the identificatory function of a bill of rights is crucial to this shape given that it constitutes a statement of the kind of political community the current (and future) UK is; one that upholds the rule of law and human rights or one that does not.  As such, the question of a bill of Rights for Britain is inextricably bound up with the question of the future form of the UK, and like the question of form, is not one that will go away anytime soon.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.   

Suggested citation: C. Mac Amhlaigh,  ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an important issue for human rights and the future of Britain.’   UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org

1 Comment

Filed under Constitutional reform, Human rights

Mark Elliott: Judicial review – why the Ministry of Justice doesn’t get it

mark1Following the Prime Minister’s declaration of “war” on judicial review last month, the Ministry of Justice has now published a consultation paper in which it sets out, and invites comments on, specific proposals concerning the judicial review process. They include reducing the time limit for seeking judicial review in certain circumstances. In planning cases, the limit would come down to six weeks, and in procurement cases to 30 days. The Government also proposes to reduce the scope for renewing applications for permission to seek judicial review following an initial refusal. In particular, such renewal applications would not be permitted by way of an oral hearing in cases where “substantially the same matter” had already been the subject of a hearing before a judge or where, on the papers, a judge had ruled the claim to be “totally without merit”. Court fees would also go up. Applying for judicial review would cost £235 instead of £60 (as at present), and a new fee (of £215-£235) would apply to oral renewals.

These ostensibly dry proposals do not appear to amount to a “war” on judicial review, not least because there is no attempt to immunize any categories of Government decisions against all judicial scrutiny. But this does not mean that the proposals are trivial. Shorter time limits will undoubtedly make it harder for some challenges to be made, given the time needed to put together some applications. Meanwhile, reducing the scope for challenging initial refusals of permission to seek judicial review arguably assumes that the initial stage is more robust than it actually is. In fact, empirical research by Bondy and Sunkin shows that it is something of a lottery, with significant variation between individual judges’ inclination to grant permission. And while, in the general scheme of things, £235 may not be a huge amount of money (given the other costs often associated with litigation), there is something rather troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.

These aspects of the proposals are considered in more detail by Adam Wagner in a thoughtful piece published on the UK Human Rights Blog. In this post, however, I wish to focus more on the “mood music” associated with the MoJ’s consultation, and will suggest that it inadequately reflects – indeed, distorts – the constitutional significance and role of judicial review.

“Pyrrhic victories”

Part of the Government’s case for making judicial review more difficult is that, compared with a few years ago, far more claimants are now seeking to bring judicial review applications: a phenomenon which, the argument goes, has undesirable implications both for judicial resources and public administration. Much is therefore made of the fact that only a small proportion of applications for permission to seek judicial review are granted; that fewer than half of cases that proceed to a substantive hearing are decided in favour of claimants; and that even those claimants who are successful may win only “pyrrhic victories” – all of which supposedly demonstrates that the judicial review process is, for the most part, an unwelcome and unnecessary distraction from the business of governing.

This argument can be contested in a variety of ways, but here I concentrate on one particular aspect of it – namely, the dismissal of some (perhaps many) successful judicial review claims as merely pyrrhic victories, “with the matter referred back to the decision-making body for further consideration in light of the Court’s judgment”. Given the context (described above) of this claim in the consultation paper, its import is presumably that pyrrhic victories are pointless ones, because the decision-maker might ultimately make the same decision again. But to make such an argument is to miss the point in spectacular fashion.

It is undeniably the case that success on a number – but by no means all – of the judicial review grounds will result in the matter being referred back to the decision-maker in the way described in the consultation paper. But such victories are far from unimportant. Viewed in instrumental terms, it is impossible to know in advance whether any given judicial review victory will be pyrrhic – in the sense of failing to prevent the unwanted substantive decision from being retaken – or not. If, for instance, a court rules that the decision was flawed because a legally irrelevant consideration was taken into account or an improper purpose pursued, the new decision – taken only on the basis of relevant considerations and for statutorily authorized purposes – may or may not differ.

But even this instrumental analysis misses the point – or at least fails to capture the whole of it. For judicial review is about far more than merely helping some claimants to get the decision they want. In normative terms, it discharges a constitutionally imperative function by enabling the Government to be held to rule-of-law based standards of good administration and due process. Viewed in this way, there is no such thing as a pyrrhic judicial review victory: every victory – whatever the eventual outcome for the individual – is a victory for the rule of law.

The “negative effect” of judicial review on decision-makers

The consultation paper contains a second, equally surprising assertion. According to paragraph 35:

“It is not just the immediate impact of Judicial Review that is a concern. We also believe that the threat of Judicial Review has an unduly negative effect on decision makers. There is some concern that the fear of Judicial Review is leading public authorities to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge.”

As well as noting the highly impressionistic nature of this assertion – should not Government policy be based upon more than “belief” and unsubstantiated “concern”? – three specific points may be made in response to it.

First, the argument, even if taken at face value and assessed on its own terms, is lamentably weak. It reduces to the contention that public authorities should be shielded from judicial review to a greater extent than they are at present because of their tendency – if exposed to judicial review – to do things that the law does not actually require of them. The solution to this problem – if it exists – is so obvious as not to require elaboration.

Second, it could just as easily – and, arguably, more convincingly – be contended that the threat – or, putting the matter less pejoratively, possibility – of judicial review may have a positive effect on decision-makers. This point can be made in relation to specific individual cases, an obvious and notable recent example being supplied by the collapse of the Government’s decision to award the West Coast rail franchise to First Group. It is clear that that decision – which had been robustly defended by Ministers – may well have stood had judicial review not been in prospect.

Third, the foregoing argument can be applied in a broader sense. Not only may the prospect of judicial review impact upon particular decisions; it may also influence the approach to decision-making within Government more generally. Looked at in this way, the principles of good administration enforced via judicial review constitute a template of best practice – and one that is taken seriously thanks to its legal enforceability. This is reflected, for instance, in the former Cabinet Secretary’s foreword to the 2006 edition of The Judge Over Your Shoulder, who commended it “as a key source of guidance for improving policy development and decision-making in the public service”. This point cannot be pressed too far. It is, for instance, well-known that public authorities are not particularly good at internalizing judicial decisions within their front-line decision-making processes; but this is hardly a reason for attempting to shield public bodies from judicial review.

Judicial review as an unwelcome irritant

In one sense, the consultation paper says the “right” things about judicial review. It is, for instance, acknowledged to be a “critical check on the power of the State”; and the intention behind the reforms “is not to deny, or restrict, access to justice, but to provide for a more balanced and proportionate approach”. (“Proportionate to what exactly?” one wonders.) But underlying the consultation paper is a mindset that postulates judicial review proceedings as an unwelcome irritant. For instance, it is said (without the provision of any examples) that:

“[They] create delays and add to the costs of public services, in some cases stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery.” 

Similarly, in his media statement accompanying the publication of the consultation paper, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, said:

“We have seen a huge surge in Judicial Review cases in recent years. The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them.”

This reflects sentiments expressed by the Prime Minister in his speech to the CBI in November. Judicial review, like other trappings of the administrative state such as consultations, audits and compliance with EU procurement rules, was cited as a factor that makes the Government “far too slow at getting stuff done”. Being distracted by such matters was not what had made the UK “one of the most powerful, prosperous nations on earth”. And so part of the solution, said Cameron, was to cut back on judicial reviews, “many of which are completely pointless”, thereby “getting a grip” on this “massive growth industry”.

Whatever lip service is paid to the constitutional importance of judicial review in the consultation paper, the mood music is pretty clear. Judicial review is not a Good Thing. Of course, it is hardly surprising that politicians are not fond of judicial review, given that they are among those on the receiving end of such proceedings (not, of course, that this should really bother them that much if many cases are “completely pointless” and victories merely “pyrrhic”). In that sense, the fact that the Government has brought forward these proposals against the backdrop of antagonism towards the courts’ judicial review powers has a certain “Dog Bites Man” quality to it.

Judicial review in its broader constitutional setting

But this surface observation masks a deeper point about the nature of the constitution and judicial review’s place within it. If Parliament is sovereign, then there is clearly no legal inhibition upon its clipping the courts’ wings – whether in the relatively modest ways proposed in the consultation paper, or more profoundly via (for instance) the use of statutory ouster provisions. And there is equally nothing that legally prevents the Executive – its obvious vested interest notwithstanding – from pressing Parliament to enact such legislation. On this view, then, judicial review is fair game, and there is nothing improper – at least in a legal sense – if the political branches modify or curb the High Court’s supervisory jurisdiction.

However, as I have argued elsewhere, the UK’s unusual – including unwritten – constitutional arrangements are defensible and sustainable only for as long as the three branches of Government exhibit appropriate respect towards one another. This requires, among other things, that Parliament and the Executive acknowledge and accept that a key part of the courts’ constitutional role involves securing Government according to law. Indeed, it is increasingly clear that for at least some senior judges – consider, for instance, the by now well-known dicta in Jackson – the absence of such respect for the courts might trigger a wider breakdown in institutional comity.

It is difficult, if not impossible, to predict what would happen were such circumstances to eventuate, precisely because the unwritten constitution is animated and sustained by a fundamental uncertainty, or mystery, about the relationship between different loci of power.  It would, for instance, be going too far baldly to argue that judicial review is a constitutional fundamental such that Parliament is not sovereign – just as it would be going too far to assume blithely that the courts’ powers of judicial review are as constitutionally precarious as an orthodox application of the doctrine of parliamentary sovereignty would suggest. What can, however, be said with relative confidence is that acceptance by the political branches of the courts’ judicial review powers is a crucial component of the implicit institutional comity upon which the British constitution – in the absence of an explicit, formalized constitutional settlement – depends.

The Ministry of Justice’s proposals fall well short of a full-frontal attack upon judicial review, and as such they do not fundamentally threaten that comity. But they reflect both an underlying antagonism towards judicial review and an assumption that the courts’ powers in this area exist only on the terms and to the extent that the other branches are prepared to tolerate them. That assumption is a misplaced one, which exhibits inadequate sensitivity to the delicate, if unarticulated, nature of the UK’s constitutional settlement.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge.

Suggested citation: M. Elliott,  ‘Judicial review – why the Ministry of Justice doesn’t get it’   UK Const. L. Blog (16th December 2012) (available at http://ukconstitutionallaw.org

7 Comments

Filed under Judicial review, UK government

Massimo Fichera and Helen E. Hartnell: All you need is law: Same-sex marriage in Italian courts

Massimo-Fichera_avatar-105x105Helen-E.-Hartnell_avatar-105x105The Italian Corte di Cassazione (CdC) has delivered a judgment which marks a fundamental change of direction in the treatment of same-sex marriage in the Italian legal system.  Case 4184/12, decided on 15 March 2012, illustrates the piecemeal nature of legal developments affecting same-sex marriage, as well as the complex mix of issues that arise in this legal field.  Same-sex marriage bridges private and public law, and implicates family, free movement, and equality (non-discrimination) rights found in national, European and international sources.

To grasp the importance of the CdC’s ruling on family rights and non-discrimination, we must first clarify what this case does not decide by distinguishing it from two earlier Italian court decisions on same-sex marriage in the context of European Union (EU) citizenship and the free movement of persons under Directive 2004/58/EC (formerly 2004/38/EC) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens’ Directive).  That Directive is silent about whether the term ‘spouse’ includes a same-sex husband or wife.  Both prior Italian cases resolved this ambiguity in favor of same-sex couples.

The first case (Cass. Pen. sez. I n. 1328, 19 January 2011) concerned a non-EU citizen who was convicted by the Justice of Peace of Mestre for illegal entry and residence in Italy.  On appeal to the CdC (criminal section), he argued that his marriage celebrated in Spain with an EU citizen should entitle him to EU free movement rights, even when the marriage was between two men.  The CdC agreed in principle, and directed the Justice of Peace to ascertain whether Spanish legislation treats the same-sex partner as a “spouse” and, if so, to recognize the effects of the marriage in the Italian territory.  This was the first time the CdC admitted the possibility that same-sex marriage could have legal effects in Italy, albeit only in regard to immigration issues falling within the scope of the EU Citizens’ Directive.

The second case (Trib. di Reggio Emilia, sez. I civ., ord. 1401/2011, 13 February 2012) concerned a marriage in Spain between a Uruguayan and an Italian man.  When the couple later moved to Italy, the Uruguayan partner applied for a residence permit.  Here the Italian court explicitly ruled that limiting marriage to a man and a woman contravenes the interpretation of the term “spouse” found in the Citizens’ Directive, as well as of the rights to marry and to found a family mentioned in Article 9 of the Charter of Fundamental Rights (EU Charter).  The court clearly stated that once there is evidence that any marriage has been lawfully celebrated in an EU Member State, free movement rights both of the citizen and his/her family member ought to be guaranteed, regardless of the spouses’ national legislation.  But this case, like the CdC’s 2011 decision, only ensures rights under Italian immigration law.

The CdC’s March 2012 decision involves a fundamentally different fact pattern from those earlier cases, and its rationale invokes different legal sources.  This case involves two Italian men who went to Holland, married there, then returned home to Italy and asked the competent Italian authority in Latina to register their marriage.  The Italian authority refused to register the marriage, pursuant to a 2007 Ministry of Interior circular proscribing local authorities from registering same-sex marriages celebrated abroad on ordre public grounds.  On appeal, the Italian pair argued that this refusal violated their rights to marry and to have a family life, as well as the principles of non-discrimination and self-determination.  Their appeal was rejected by the Tribunal of Latina, the Court of Appeal in Rome, and the Corte di Cassazione.  However, the CdC’s decision breaks new ground, even though it does not go so far as to grant same-sex couples the right to marry or to have a foreign marriage registered in Italy.

Unlike the two earlier cases, this Italian same-sex couple’s goal was not limited to securing the handful of immigration rights guaranteed by the EU Citizens’ Directive.  Rather, these Italian men sought full civil recognition in the form of registration of their marriage, predicated on far-reaching rights claims.

This is not to say, however, that either the Italian couple or the CdC ignored EU law entirely in the March 2012 case.  On the contrary, the men argued that Italy’s failure to recognize the marriage they had concluded in another Member State impaired their rights — as EU citizens — to move freely within the EU per Article 21 (1) TFEU, and urged the Italian court to make a preliminary reference to the Court of Justice of the European Union (CJEU) seeking interpretation of Articles 9, 21, 51, 52, 53 and 54 of the EU Charter.  The CdC was not persuaded, however, and refused to refer any questions to the CJEU, pointing to decisions by the ItalianCorte Costituzionale (decision 138/2000 of 2010) and by the ECJ (C-299/95Kremzow; C-328/04 Vainaj; C-400/10 McB; C-256/11 Dereci) which emphasize that the EU Charter only applies to situations that fall within the scope of EU law.  On this issue, the CdC was firm:  the rights to marry and to found a family do not fall within the scope of EU law, since Article 9 of the EU Charter relegates these matters to national law.

The CdC next turned to the question whether there are still reasons, in modern Italian society, to consider same-sex marriage unlawful.  The CdC’s reasoning focuses on the tension between, on the one hand, the traditional concept of marriage, as derived from Roman law and enshrined in international instruments such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, and, on the other hand, recent trends towards giving full recognition to the legal effects of same-sex marriages.

The CdC’s decision draws upon — but ultimately surpasses — two 2010 rulings, one by the Italian Corte Costituzionale and the other by the European Court of Human Rights.  Both of those earlier decisions opened the door a crack towards civil recognition of same-sex marriage, but the courts ultimately hesitated to cross the threshold.  Instead, it was the Corte di Cassazione in March 2012 that stepped through the door, albeit cautiously.

In Decision 138/2012 (April 2010), the Italian Corte Costituzionale (CC) ruled that Articles 3, 29 and 2 of the Italian Constitution cannot be read to mean that the right to same-sex marriage has constitutional ranking in the Italian legal system.  Rather, the CC insisted that Article 29 embodies a “naturalistic” definition of marriage that presupposes gender diversity.  This interpretation was not inevitable, however, since the language of Article 29 is gender-neutral, defines “family” as a “natural society based on marriage”, and proclaims the “moral and legal equality of the spouses”.  In the end, despite acknowledging that the concepts of “marriage” and “family” ought to be interpreted in line with socio-cultural changes occurring over time, the CC shied away from a “creative” interpretation that would radically modify core concepts that had never been contemplated by the drafters, and declared the aim of procreation to be inherent in marriage and worthy of constitutional protection.  Yet despite its hesitation, the CC in 2010 took an important first step towards constitutionalising same-sex marriage in Italy by noting that Article 2 of the Constitution protects gay unions as “social groups” in which all people have the right to develop as individuals.

The decision of the European Court of Human Rights (ECtHR) in Schalk and Kopf v. Austria (June 2010) was more daring than the one reached by the Italian Corte Costituzionale, but the ECtHR also held back from the interpretive brink.  Reading Article 12 of the European Convention on Human Rights and Article 9 of the EU Charter together, the ECtHR stated that it no longer considered that the “right to marry … must in all circumstances be limited to marriage between two persons of the opposite sex.”  Still, the ECtHR was unwilling, given the lack of consensus in favor of same-sex marriage, to impose this interpretation on the Contracting States.  Thus in the end, the ECtHR’s conclusion was similar to that reached by the Corte Costituzionale, namely that the issue falls within the Member States’ margin of discretion, and it is up to their legislative organs to regulate the matter.

The March 2012 decision of the Corte di Cassazione (civil law section) moves a decisive step closer to full recognition of same-sex marriage.  While the CdC did not overturn the outcome of the case and allow the marriage to be registered, it did reject the lower court’s reasoning, which had denied registration on ordre publicgrounds.  Instead, the CdC refuses recognition for the technical reason that the marriage is unable to produce legal effects in the Italian legal system.  By doing so, the CdC departs from its previous stance that gender diversity was a prerequisite to a legally valid marriage.  The CdC also abandons as untenable the position that same-sex marriage is “non-existent”, in view of the fact that some countries now allow same-sex marriage.

Yet however important those steps may be, the real novelty of the CdC’s 2012 decision lies elsewhere.  The Corte di Cassazione states clearly that gay couples have a right to family life on the basis of the equality/non-discrimination provision in Article 3 of the Italian Constitution, which entails treating them on an equal footing with married couples, and that this right can be judicially protected, even absent any action by the legislature.  Thus, Case 4184/12 constitutes a major step in the evolution of the concept of family in the Italian legal system, even while falling short of a breakthrough constitutionalisation of same-sex marriage.

A more detailed analysis of the Italian developments, including comments on stirrings in the Italian legislature, is available here.

Massimo Fichera is a Post-Doctoral Fellow, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity Research, funded by the Academy of Finland.

Helen E. Hartnell is a Professor of Law, Golden Gate University School of Law (San Francisco) and Fulbright Core Scholar, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity (Fall 2012).

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

Leave a comment

Filed under European Union, Human rights

David Feldman: The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?

DFeldmanThe date set for publication of the report of the Commission on a Bill of Rights  approaches.  The Commission was established to consider whether the UK should have a Bill of Rights, and, if so, what it should contain and how it should relate to the Convention for the Protection of Human Rights and Fundamental Freedoms (or ECHR).  The spur for establishing the Commission was perplexity among some people at the ability of the European Court of Human Rights, an international tribunal, to make authoritative, binding judgments about the compatibility of UK legislation with rights under the ECHR.

People’s attention is thus distracted from the merits of issues, such as when prisoners should be deprived of their right to vote, towards procedural matters, such as whether the UK should be required to accept the assessment of a body with four suspicious characteristics: the judges are nearly all foreigners; the Court operates within a European organisation, the Council of Europe (albeit quite different from the EU, a fact which is often not understood); the judges are mistakenly thought to be unelected (untrue: they are elected by the Parliamentary Assembly of the Council of Europe, a body composed of parliamentarians from the 47 member states of the Council of Europe), and some of them have been—horror!—academics; and they are applying rules which have not been laid down by the Queen in Parliament.

Many of these matters have been incisively addressed by Colm O’Cinneide, Human Rights and the UK Constitution  (London: British Academy Policy Centre, 2012) and others (see for example Conor Gearty, ‘Strasbourg has spoken, the case of prisoner voting is closed’.   Here, I shall merely explain why the Court’s judgments bind the UK, and why this does not infringe the UK’s national sovereignty or the legislative supremacy of the Queen in Parliament.

The reason is simple: the Court decides because the UK (among other states) has instructed it to do so, not just once but on many occasions.

The ECHR is an international treaty between (now) 47 states.  The UK signed and ratified the original version over 60 years ago.  It therefore binds the UK in international law.  The UK did not immediately accept the jurisdiction of the Court (and originally the European Commission of Human Rights) over applications by individuals who complain that a state has violated their rights under the ECHR.  That was at first optional.  It was 1965 before a British government declared, under what was then Article 25 of the ECHR, that it would accept the jurisdiction of the Court in relation to individual complaints.  That carefully considered decision was temporary.  Successive UK governments had to decide whether to renew it, and did renew it, every five years until the 1990s.

At that point, a new treaty, Protocol No. 11 to the ECHR, thoroughly renovated the ECHR’s procedural rules.  When negotiating this treaty, the UK agreed with all the other states which were parties to the ECHR that states should all accept, permanently, the jurisdiction of the Court over cases brought against the states by individuals.  The UK’s government signed and ratified Protocol No. 11, which came into operation in 1998.  By virtue of that, the UK as a High Contracting Party voluntarily accepted what became Article 34 of the ECHR:

‘The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’

As a High Contracting Party to the ECHR, the UK also voluntarily accepted what are now Article 44, providing that a judgment of a Chamber of the Court becomes final after three months if not referred to the Grand Chamber (earlier if the respondent state indicates that it will not seek to refer the case to the Grand Chamber), and that judgments of the Grand Chamber are always final, and Article 46.1: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’

This makes four points clear.

First, the Court decides cases against the UK because the UK (among other High Contracting Parties) told it to do so.

Secondly, the Court’s judgments bind the UK in international law because the UK (together with other High Contracting Parties) decided that they should be binding.

Thirdly, this came about as a direct result of an exercise by the UK of its state sovereignty in international law.  It is no more (but no less) a limitation of that sovereignty than any other set of treaty obligations which the UK voluntarily assumes.

Fourthly, it has nothing to do with the legislative sovereignty of the Queen in Parliament.  That is a principle of national, constitutional law, which is of no interest to international law as long as it does not breach, or prevent the UK from meeting, its international legal obligations.  Treaty-making in the UK is a prerogative of the Crown, exercised by (typically) ministers.  They are accountable to Parliament for their actions, and sometimes an Act of Parliament may be needed in order to discharge the obligations which arise from treaties, but ministers’ authority to make treaties does not depend on parliament.  That is one reason why constitutional law in the UK does not allow treaty provisions to create rights or obligations in domestic law without legislation: see Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution 7th edn (Oxford: Oxford University Press, 2011), ch. 5.  By the same token, nothing contained in an Act of Parliament can affect the obligations which bind the UK in public international law.

David Feldman is Rouse Ball Professor of English Law, University of Cambridge, and a Fellow of Downing College, Cambridge

Suggested citation: D. Feldman, ‘The European Court of Human Rights and the UK – Why Should Strasbourg Decide On Our Human Rights?’ UK Const. L. Blog (7th December 2012)(available at http://ukconstitutionallaw.org).

6 Comments

Filed under Human rights, International law, UK Parliament

David Mead: Who You Gonna Call – Mythbusters: the Need For Vigilance in the Great HRA Debate

davidmeadIt’ll be over by Christmas we thought – strongholds taken, fortifications dug in and positions entrenched. “It gives too much power to judges”…”why do we need to have any more European law?”…”like health and safety, only gone madder.” The debate over the HRA and a possible British Bill of Rights has become formulaic and sterile, no quarter ever conceded lest that be seen as a weakness for the other side to steamroller in and on to success. Gavin Phillipson in his recent ‘blogpost in these pages noted the political coalescence against the HRA.  Truth and accuracy have succumbed to hyperbole and straw men, victims of the battle. Becoming tougher on rights and tougher on the causes of rights is only likely to intensify in the run-up to the publication of the Commission on a Bill of Rights report, expected in the next few weeks.

The latest skirmish saw the defeat this week of a ten-minute rule bill proposed by Tory backbencher, Richard Bacon (coincidentally my local MP). His bill, calling for repeal of the HRA, was defeated by 195 votes to 72. As with many of those seeking repeal or arguing for wholesale reform, much of the blame was misdirected – lain instead at the door of the undemocratic European Court and its perceived illegitimacy. That is, it is true, a question – but not one that is integral to resolving the conundrum of the HRA. Another weapon, almost always in the hands of the right, is to claim that the HRA and the ECHR has trivialised support for ‘real’ rights, or as Nick Herbert in his recent Policy Exchange Kingsland Memorial lecture called “the great rights”.

These points , and many more, need to be confronted by all of us who support some form of home-grown system for protecting rights but – and this is the point of this post – do we really offer that support best by creating and propagating our own myths? It is one thing to disabuse readers of The Sun which was urging the government to “Rip Up The Human Rights Act; the cause of rights can only be enhanced by showing underhand tactics for what they are. It is another to found a positive case for retention by being “economical with the actualité”.

Rebuttals and counters put out by supporters of the HRA aren’t immune from charges of partiality. The evening before the ten-minute rule debate, shadow Secretary of State for Justice, Sadiq Khan, put out Ten Myths about the Human Rights Act on LabourList, in an attempt to head off many of the usual suspects that were likely to be arrayed the following day. Khan is right on many points: clearly the HRA is likely to be more protective of rights for no other reason than that the common law can be “overridden by new legislation.” He was right too to highlight media portrayals that present a skewed truth. There was never any hope of Dennis Nielsen ever obtaining hard-core S & M pornography by calling in aid Article 10 – and it was rejected at the permission stage – yet shadow Home Secretary David Davis in an article in The Daily Telegraph in August 2004 asserted he’d been able to do so. These misunderstandings (in best light) – perhaps deliberate falsities – need to be combated. The DCA did so successfully in its Review of the Implementation of the Human Rights Act in 2006 but have these corrections made it in the public psyche – or are we still suffering the equivalent of EU “bent banana” syndrome? Equally, as Khan notes, there is a clear lack of public understanding, but not lack of support it seems – though of course it was the Labour government that simply landed it, without any consultation or public “buy-in”, something on which Alice Donald has commented so forcefully. It must also be sensible to advert to the Tories’ insistence on it being a British Bill of Rights – with its undertones of nationalism and concerns about limiting eligibility – and to assert that the rights in the HRA are rights for all equally, that it’s not simply “lefty claptrap about rights of minority groups”.

As well as these sound points, Khan does run the risk of some own goals, which might allow his rebuttals to be latched onto in turn by opponents as mischief-making and myth-creating. First, to deal with the assertion that “The HRA is foreigners imposing their human rights laws on Britain”, Khan writes that “history shows that it was Brits that wrote the ECHR. They are our human rights laws.” This of course is true of the Convention itself, the role of David Maxwell-Fyfe (later Lord Kilmuir) well-known, so to that extent, the ECHR is if not a British invention then at least very heavily influenced by British involvement. But is that what critics really mean, really complain about? It is not the ECHR that is ‘applied’ in the UK through the mechanism of s.2 but the case-law of the Strasbourg Court. The Convention itself is broadly worded and vague; it is case-law that tells us, to take an example, that the right to life in Article 2 also requires states to carry out an effective investigation into deaths. To that extent Gavin Phillipson and Alex Williams are surely not right (p.897) to argue that the HRA only makes rights binding, not the case law? No, the worry is that it is the jurisprudence of the Court that is being domesticated, either as an interpretative tool under s.3 or as a measure of government legality under s.6. Like all member states, the UK has only one judge at the Court. In that sense, the HRA – and the mirror principle adopted as the touchstone for s.2 – means that it is not unreasonable to assert there has been foreign imposition; simply pretending that the worry is misplaced does not make that worry vanish. Whether it is a good or bad thing is a further normative question – as is whether a panel of largely foreign unelected judges is qualitatively different to and lesser than a bench of home-grown unelected ones, given the universality of human rights …but these are not the questions Khan is grappling with. The fact that s.2 only requires judges to take account of Strasbourg law – and are not bound – does not really meet the objection, given the way the “no more, no less” principle has operated. Neither is Khan considering whether or not in extremis that there be an override power for national parliaments to be able to show their clear disagreement with ex cathedra pronouncements from the Court. On that, as we are seeing with the prisoner vote issue in the UK, there can quite properly be differences of view, yet it does the case for retaining the HRA little good for its supporters’ counter-arguments to be dealt with so easily.

Khan’s other problematic contention is when he counters the assertion that “judges now make our laws, not Parliament”. He gives this short shrift too:

Our Parliament is sovereign – it makes the laws of the land. Courts and judges don’t make laws – they operate within the laws as set by Parliament. Under the HRA, courts can only highlight human rights abuses – the so-called “declaration of incompatibility” – and it’s for Parliament to decide how to respond to such a declaration. While it can ignore the declaration, Parliament can’t be forced to change the law against its will.

It’s here I fear we’d simply have to agree to disagree. I have on these pages blogged about the dialogue model and specifically the downplaying of the impact of transformative readings under s.3. I have heard Francesca Klug and Shami Chakrabarti make the same point at public lectures in the past year: we shouldn’t be overly concerned with how the HRA operates since parliament retains its residual power to make and change law. Judges cannot do so; the most they can do is ‘warn’ by declaring legislation incompatible. That assumes a more pivotal role for s.4 than is usually accorded it, certainly in view of various judicial exhortations that it be a last resort. A more used remedy, certainly more versatile and more valuable to individual litigants, may well be s.3. “May well” because we simply do not know – and that is the problem. Data are not maintained on how far and on how many occasions judges have read words into statutes. If parliament is not aware – and the instances of s.3 being used does not feature in the annual Ministry of Justice report on human rights judgments – how will it know it has to act? It is a fudging of the real issue to maintain all is rosy simply because there is no strike-down power.

The position adopted by Khan here is also partial in that it ignores the wider judicial/political relationship being thrown out of kilter by enhanced proportionality review. It could feasibly be argued – and David Blunkett dedicated some of his career to exactly this – that the real impact of the HRA is in empowering judges to question and to control the substance of ministerial discretion on human rights grounds, so diminishing the scope for unchallengeable political decision-making. There are sound arguments either way – both as to whether judges indeed do so and should do so – but resolving that is not the point. Khan does not simply relegate this element of judicial power, he ignores it. While it could be argued that he is simply trying to deal with the ten most commonly lined-up counters to the HRA, he of course selected those ten. While the question of judicial power in the realm of legislation is undeniably a key one, the number of cases over the past decade where judges have utilised s.3 or s.4 are in low double-figures. That is probably the number of JR cases in a few months that the Administrative Court faces where the question is the proportionality of a minister’s decision. To ignore that crucial aspect is to mislead.

That leads to my final comment. In seeking to defend the HRA against its naysayers, there is no mention in Khan’s account of how the Labour Party in government – albeit before he was elected as an MP in 2005 – undermined the very legislation it brought in. Again, of course, that was not part of Khan’s project – but can half a picture really be true? From the Prime Minister downwards, unfounded and uncorrected assertions were made that the blame for various unpopular events taking place or unfurling – the Afghan hijackers not being deported, the release to kill again of Antony Rice – was the HRA. It is well documented in the JCHR report of 2006 on the DCA Review (above), in fact damningly so, that “…the Human Rights Act has been used as a convenient scapegoat for unrelated administrative failings within Government”. Is it so surprising now that the anti campaign has ascended to such heights when the framers of the Act gave it such a foothold? Dealing with the past, reconciliation, is the only real way to lay secure foundations for the future.

There are many and varied tough choices that need to be made as we move toward a future possibly with a British Bill of Rights rather than the HRA. At the heart of contemporary bills of rights debates is how to devise a mechanism that responds to the benefits that majoritarian decision-making can herald, for accountability, responsiveness and democratic legitimacy, and to the concerns it brings viz. that by definition it does not cater well for minorities – as well as the fact that it is responsive to our wishes only temporarily, at best to those currently able to vote. Human rights should be eternal, not ephemeral. That’s why conferring power on judges who do not need to seek election, let alone re-election, who can rise about party shenanigans, can seem so attractive. This must be especially so when the voting system functions to distort political power.  The pitfalls are again well rehearsed. I’m not proposing a solution but simply wondering whether “the next time you’re faced with a Tory in full flow castigating the HRA”, as Sadiq Khan ended his piece, you really are better off equipped with a myth-making myth-buster of your own?

David Mead, Professor of Public Law and UK Human Rights, University of Essex

 Suggested citation: D. Mead, ‘Who you gonna call – Mythbusters: the need for vigilance in the great HRA debate’ UK Const. L. Blog (6th December 2012)(available at http://ukconstitutionallaw.org).

2 Comments

Filed under Constitutional reform, Human rights, UK Parliament

Event reminder: Neil Walker’s 2012 “Public Law” lecture, Thursday, Queen Mary, Mile End, 6.30 pm

Details here http://ukconstitutionallaw.org/2012/10/15/event-invitation-to-the-2012-public-law-lecture-thursday-6-december-2012-at-6-30-pm/ CPD accredited.

Leave a comment

Filed under Uncategorized