Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Dr Cormac Mac Amhlaigh, Lecturer in Public Law at the University of Edinburgh. You can read the other contributions in this series here. Posts on the topic are welcome.

So we finally we have some clarity. Of the many statements, quasi-proposals and rumours affecting constitutional reform which had been swirling around during the term of the last coalition government, we now know which will see the light of day as official government policy. With the surprise Conservative majority government, it is now clear that the Human Rights Act will be repealed and replaced with a British Bill of Rights and there will be a referendum on EU membership by 2017 at the latest. Given that many of these issues had already been touted by one part of the coalition, many, if not most, of the constitutional and political implications, and particularly the difficulties, of these proposals have already been thrashed out in different forums such as the recent report co-edited by my colleague Tobias Lock, as well as, of course, on the pages of this blog. I have read and benefited from these excellent insights and so have nothing to add here to the substance of these issues.

Rather this post will focus on the question of whether, given its significant constitutional status, something more than a quasi-consensus amongst the members of an administration with a (slender) majority in one of the Houses of Parliament is required for the repeal of the Human Rights Act. In particular, it will analyse the case for holding a referendum on repeal of the Human Rights Act, an issue which has been the subject of an online petition, due to its status as a ‘constitutional essential’ of the British constitution.

Referendums have been a prominent part of the recent constitutional landscape. They were held prior to the devolution of powers to the regional parliaments and assemblies in 1998, for changes to the voting system in 2011 as well as on the question of Scottish independence in 2014, and a referendum will be held to determine whether the UK should secede from the EU. However, alongside an emerging practice of referendums as a method of political decision-making, they also serve democratic imperatives. In a recent book, my Edinburgh colleague (and co-editor of this blog) Stephen Tierney has mounted a defence of the legitimacy of referendums on major constitutional issues against a backdrop of scepticism in constitutional circles regarding their use as a form of political decision-making. The use of the referendum, Tierney notes, coincides with increasing international recognition that people are entitled to participate in decisions that affect their lives. Whereas this is, of course, relevant to any political process, he argues that it is ‘all the more vital at the constitutional level, and in particular, in respect of fundamental constitutional decisions that implicate the very identity of a constitutional people.’ (186). As such, popular involvement in decision-making on constitutional matters by voting directly on the amendment proposed through a referendum lends the decision ‘enhanced democratic legitimacy.’ (185)

Referendums, can, of course, be subject to abuse, and Tierney specifies further conditions beyond a basic poll which are necessary to achieve the enhanced democratic potential of referendums, arguing that they must be seen as the ‘legitimate expression of the collective will of the people’ (43) through processes of ‘authentic deliberation’ (34). Authentic deliberation involves informed citizens reflecting on the pros and cons of constitutional reforms, enjoying the possibility of expressing their views as well as being exposed and listening to the views of others. In order to achieve these aims, Tierney proposes a deliberative process made up of a series of stages involving the input of a mix of voters and elites at different stages of a referendum process including the decision to hold a referendum, agenda setting and the campaign stage. (51) These stages should, in turn, be subject to principles of deliberation including participation, public reasoning, equality as parity of esteem and consent and collective decision-making. (45)

In order to benefit from the enhanced legitimacy of deliberative constitutional referendums some sort of indication of how and when they are to be used is necessary. The initial decision to submit an issue to referendum is, perhaps, the most important in the various stages of deliberative constitutional referendums and is also the one most susceptible to abuse. As Tierney notes, part of the charge of the illegitimacy of referendums relates to the issue of elite domination and particularly their unprincipled use by political elites to serve their own ends. This has led referendum sceptics such as Lijphart to argue that ‘when governments control the referendum, they will tend to use it only when they expect to win.’ (cited by Tierney at 103). On this view, elites nominally ‘out-source’ significant political decisions to citizens on democratic grounds but in fact control the process throughout thereby ensuring that they get the answer they want along with an unwarranted veneer of added democratic legitimacy.   Given the largely political nature of the British constitution, such that ‘every British referendum is […] discretionary and ad hoc’ (104), the risk of elite domination in the UK context is particularly acute.  One way to temper potential abuse by elites, particularly regarding the initial decision to hold a referendum, is to create a legal requirement for a referendum for any constitutional amendment such as in the case of the Australian, Danish, Irish, Japanese and Swiss constitutions (105). An alternative arguably more suited to the British context is to envisage a norm of democratic political morality whereby only certain ‘constitutional essentials’ require a referendum to be amended or repealed. This idea is not entirely alien to current constitutional practice and underpins, at least in part, the decision to hold referendums on various aspects of devolution and particularly the Scottish Independence Referendum.

This, then, begs the question of what constitutes a ‘constitutional essential’. As Feldman has illustrated in a recent article (“The nature and significance of ‘constitutional’ legislation” (2013) 129 LQR 343) the identification of ‘constitutional essentials’ in any constitution, written or unwritten is not easy. However, there are a number of indicators from comparative and domestic constitutional practice which give clues as to whether a particular matter relates to the essence of a constitution or not. For example, any constitutional provision which attempts to immunize certain constitutional provisions from repeal would be an obvious candidate for a constitutional essential such as the Bill of Rights and the federal nature of the German state included in the famous ‘eternity clause’, Art. 79(3), of the German Constitution. Another indicator of a provision which is ‘essential’ to the constitution would be any provision requiring especially onerous amendment procedures such as supermajorities of the Houses of Parliament or referendums such as, for example, Art. 168 of the Spanish Constitution which requires a referendum to be held to amend certain parts of the Constitution including its Bill of Rights. In the British context, an obvious candidate for the ‘constitutional essentials’ of the British constitution would be the various constitutional statutes which now form part of the contemporary British constitution (alongside, perhaps, certain other common-law principles).

As famously outlined by Laws LJ in Thorburn v. Sunderland City Council [2002] EWHC 195 (Admin), and given much considered study in the pages of this blog, (see for example here and here), constitutional statutes are distinct from ordinary statutes in that they are immune from implied repeal. They are also subject to a more constitutional, ‘purposive’, interpretation than ordinary statutes as the Supreme Court illustrated in cases such as Robinson v. SSNI [2002] UKHL 32 and H v. Lord Advocate [2012] UKSC 24.

In terms of distinguishing constitutional statutes from ‘ordinary’ statutes, in the Thorburn decision, Laws LJ stated that:

‘a constitutional statute is one which (a) conditions the legal relationship between citizen and the state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we could now regard as fundamental or constitutional rights.’ (para. 62).

He went on to list a number of examples including the devolution statutes, the European Communities Act 1972 and, of course, the Human Rights Act 1998. Feldman has critically analysed this taxonomy, questioning whether the list provided by Laws LJ is accurate and/or exhaustive according to his own definition (Feldman 2013 above). However we do not need to investigate this wider issue to conclude, with Feldman, that the Human Rights Act unambiguously qualifies as a constitutional statute; ‘both because it regulates the relationship between state and individual in a general, overarching manner, and because it extends protection of at least some fundamental, constitutional rights which overlap with the convention rights’. (Feldman, 2013: 346-7) Thus, if the Human Rights Act unambiguously qualifies as a constitutional statute, it is arguably a ‘constitutional essential’ requiring a deliberative constitutional referendum for its amendment or repeal.

Furthermore, the ‘staged’ process of information and deliberation in any such referendum process would go some considerable way in addressing the concerns of the Bill of Rights Commission regarding public ‘ownership’ of the Human Rights Act in its Final Report of 2012. As is well known, the Commission gave a qualified yes to the question of whether the UK needs a Bill of Rights albeit with dissenting voices amongst its ranks. The issue of ‘public ownership’ (or more precisely the lack thereof) loomed large in their justification for a new UK Bill of Rights (paras. 30-36) leading them to recommend that any new Bill of Rights should be drafted by a Constitutional Convention which ‘would be the most desirable place to consider the promotion of a UK Bill of Rights within the context of a wider constitutional review’ (para. 77), something, they note, that David Cameron was enthusiastic about (at least back in 2012). It is not necessary to agree with the conclusions of the Commission on the question of the necessity of a UK Bill of rights to see how a deliberative constitutional referendum process could considerably rehabilitate the status and role of human rights in the public imagination along the lines envisaged by the Bill of Rights Commission and thereby contribute significantly to resolving the problem of ‘public ownership’ of human rights in the UK more generally.

Vernon Bogdanor has gone as far as to suggest that a referendum is now required by convention under the UK constitutional ‘when a wholly novel constitutional arrangement is proposed’. (HL Select Committee on the Constitution, Referendums in the United Kingdom (HL 2009–10, 99) evidence by Vernon Bogdanor, 45-6). The current government has already committed to holding a referendum on EU Membership whose law, like the Human Rights Act, has become a significant part of the British constitution through a constitutional statute. If it is to avoid the charge that it is bringing the referendum under the UK constitution into disrepute through ‘Bonapartist’ tendencies, or succumbing to a Lijphartian cynicism surrounding the elite domination of referendums, it would do well to recognize such a convention, at least with respect to the amendment or repeal of constitutional statutes and, in particular, the Human Rights Act.

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

Suggested citation: C. Mac Amhlaigh, ‘HRA Watch: Reform, Repeal, Replace? A Referendum on Repeal of the Human Rights Act? Why not?’ UK Const. L. Blog (25th May 2015) (available at http://ukconstitutionallaw.org)