Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?

stephenson_scottThe current system for human rights protection in the UK is once again under siege. In the last week, statements were made indicating that the Conservative Party’s manifesto for the next election would include major reforms to current arrangements. Chris Grayling, Justice Secretary and Lord Chancellor, declared that a future Conservative Government would repeal the UK Human Rights Act 1998 ‘and start[] again’, suggesting that it would be replaced by alternative legislation. Theresa May, Home Secretary, announced that the manifesto would include a promise to withdraw the UK from the European Convention on Human Rights.

In response, Mark Elliott, Conor Gearty and Adam Wagner wrote that these proposals might not have the effect that many people assume they would. Some of their arguments concern the ineffectiveness of partial reform—removing one element of the scheme for human rights protection but not both. In this post, I focus on their comments that relate to reform at the domestic level—repeal of the UK HRA followed by either no replacement law or a statute that confers markedly reduced powers on courts.

Mark Elliott and Conor Gearty raise two points about repeal of the UK HRA. First, the UK HRA has expanded the protection of rights at common law. As is well known, prior to the UK HRA many rights were recognised at common law and courts developed rules and principles to give effect to them. The principle of legality is one example, which provides that ‘[f]undamental rights cannot be overridden by general or ambiguous words’. These rights, rule and principles would not only subsist after repeal but also operate in an expanded guise. Mark Elliott states that the UK HRA has accelerated the protection of rights at common law by ‘produc[ing] a kind of alchemy, leading judges to discover what was already implicit in the common law while simultaneously augmenting the common law.’ Enactment of the UK HRA has fostered an awareness of rights throughout the British legal system that repeal is unlikely to mollify: ‘To assume … that repealing the HRA or even withdrawing from the ECHR would rid domestic law of the foreign influences that have supposedly tainted it in recent years betrays a naïve misunderstanding of the nature of our common law constitution.’ This awareness will be reflected in the direction and pace of common law development.

Second, repeal of the UK HRA may prompt courts to employ alternative, more controversial, means of protecting rights. British judges have occasionally suggested that a court might decide to disapply or invalidate a statute in exceptional circumstances. In R (Jackson) v Attorney General, Lord Hope stated that the principle of parliamentary sovereignty ‘is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever.’ The UK HRA has, as Mark Elliott and Conor Gearty note, reduced the need for courts to contemplate this issue with respect to human rights. Judges are supplied with a range of remedial powers to address executive and legislative actions that violate rights, obviating the need to turn to the common law to respond such as through a power of invalidation. Furthermore, Conor Gearty observes that ‘some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene.’ Thus, repeal of the UK HRA might, depending on what replaces it, re-agitate this controversial, untested realm of constitutional law by removing two defusing factors: the provision of statutory remedies and the prohibition on invalidation.

These comments underscore that enactment and repeal are substantively different acts—one is not the mirror image of the other. Putting the doctrine of implied repeal to one side (see Factortame and Thoburn), the UK HRA was deliberately designed not to disturb the power of express repeal. Unlike the human rights instruments of most countries, it is not constitutionally entrenched and is therefore capable of express amendment and repeal through the ordinary law making process. Yet here we see the UK HRA opening a gulf between constitutional form and substance—even if Parliament complies with the constitutional procedure for repeal, the substantive rights are not necessarily withdrawn if courts incorporate them into the common law. Parliament can attempt to abolish common law rights by express enactment, but this may only raise another set of constitutional constraints. Courts may either impede their ouster using the same techniques they have with privative clauses or invoke the second scenario mentioned above (statutory invalidation).

More importantly, the issue raises the question of how courts should interpret a legislative decision to repeal. Not all statutes are alike. Lord Justice Laws has said (in the context of implied repeal) that ‘[w]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’ The UK HRA is undoubtedly a statute of this stature, even beyond the matter of implied repeal. British courts, for instance, took s 3(1) of the UK HRA to constitute a ‘strong adjuration’ to develop a markedly more expansive principle of legality, thereby augmenting the judiciary’s constitutional role.

By extension, does this mean that not all repeals are alike? If the enactment of a statute can affect the common law, should courts take the repeal of a statute, especially one that is constitutional, as an indication of how they should develop the common law in future cases? Should courts interpret a legislative decision to repeal the UK HRA as a similarly ‘strong adjuration’ to abandon the more expansive principle of legality? After all, courts could, if the UK HRA were repealed, continue to interpret statutes in the same manner and even continue to issue informal declarations of incompatibility. But if enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?

While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.

 

Scott Stephenson is a Fox International Fellow at Cambridge University and a J.S.D. Candidate at Yale University

Suggested citation: S. Stephenson  ‘The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?’ UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org)

 

3 Comments

Filed under Human rights, UK Parliament

3 responses to “Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?

  1. Pingback: Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock? – UK Constitutional Law Group | Current Awareness

  2. I have made this comment with regard to other blogs on this issue:

    Those advocating repeal of the HRA 1998, and even withdrawal from the ECHR as the ultimate version of regaining subsidiarity need to ponder perhaps the following one or two inconveniences:

    1. Repeal of the HRA1998 leaves us still in the ECHR, and because our courts (no doubt) would be legislated from acting within the terms of the ECHR, we would see less cases settled here and more having to go to Strasbourg – this was precisely the regime prior to incorporation under the HRA1998. Britain had an embarrassing number of cases against it heard there.

    2. The removal of the facility for a judge to issue a Declaration of Incompatibility re a UK law as regards the Convention would place judges in an impossible situation. Up to 1998, a judge could not cite the ECHR in a judgement, now s/he can and, having passed a judgment, s/he may, nonetheless make a declaration that the law on which the judgment was based is inconsistent with our obligations under the Convention. On which the minister responsible has to make a statement to that effect before Parliament which then has the consider what to do about the inconsistency. I cannot see judges being so compliant that they would rest at all happy with clock-winding-back.

    3. Going the whole hog, of denunciation of the ECHR (Article 58 of same), brings the biggest fly in the withdrawal ointment. For it provides that any case brought concerning a matter which occurred before the date of denunciation will still come within the jurisdiction of the European Court of Human Rights. How long might that be a problem for a go-it-alone UK? Also, have the proponents not considered that those opposed to this idea might well rejoin the Convention on next election to government?

    4. The UK already has denied itself the easiest route to subsidiarity by neglecting to incorporate the Article which provides that we should provide for this. The HRA incorporated A1-12 and 15. Article 13 provides that their should be national tribunals for the settlement of breaches of rights under the ECHR. Whether these should be functions tacked onto levels of existing courts or new machinery the Article does not specify.

    Those in parties which support the ECHR ought, surely, now, to advocate an amendment to the HRA1998 to achieve that aim of subsidiarity which is an integral part of the ECHR?

    And what argument might Mrs May and others have against that as an easier route, and one less fraught with problems for the UK? Unless, of course, it is not the machinery of the Court they dislike, but the actual rights in the Convention…..

  3. Pingback: Press regulation deal is the 'dab of statute' sought by Hacked Off | eJumo

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