Tag Archives: Human Rights Act

by | March 21, 2013 · 5:13 pm

Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?

helen1The Commission delivered its Report – A UK Bill of Rights? – The Choice Before Us – to the Government in December 2012. It is an odd document, dominated by the lack of agreement in the Commission as to the role that any human rights’ instrument in Britain should play. That was unsurprising since at the inception of the Commission the Coalition partners appeared to want it to play two different roles – defending or attacking the HRA. From the very outset the Commission and the idea of a Bill of Rights (BoR) was relied upon by Cameron and other senior Conservatives to allay anger in the Conservative party, and among some voters, directed at decisions made under the Human Rights Act. David Cameron announced the Commission’s inception in March 2011 at Prime Ministers’ Questions as a reaction to criticism of the decision of the Supreme Court that sex offenders should be able to challenge their inclusion on the Sex Offenders’ register. He indicated that a BoR would address the concerns expressed (17.3.11; see the Telegraph in relation to R and Thompson v SSHD). The idea that a BoR could right the wrongs of the HRA – would provide a panacea for the HRA’s ills – had apparently been embedded in the Conservative party psyche for some years: David Cameron in a speech to the Centre for Policy Studies in 2006 Balancing freedom and security – A modern British Bill of Rights said that the HRA should be repealed: “….The Human Rights Act has a damaging impact on our ability to protect our society against terrorism…. . I am today committing my Party to work towards the production of a Modern Bill of Rights”. In contrast, the 2010 Liberal Democrat election manifesto promised to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

This piece will suggest that the ‘panacea’ notion was always an illusion. It will argue that the polarised nature of the Commission in political terms, and its remit, inevitably meant that Cameron’s apparent expectations of the goods its Report would deliver were always likely to be disappointed, but that its key proposal – that there should be a new BoR – might prove advantageous in future for the Conservative party.

The majority proposal of a new Bill of Rights

The Commission was obviously constrained by its terms of reference, which most significantly included the following: 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” (see Ministry of Justice18.3.11). If some senior Conservatives considered that the BoR could be used to restrict rights, that remit meant that it was obviously unlikely to deliver that result.

The Commission found that the strongest argument, and the one advanced by the largest number of their respondents, was that the UK already has a bill of rights in the shape of the HRA (A UK Bill of Rights? – The Choice Before Us, Overview, para 68). But, in a decision criticised by the minority (Prof Philippe Sands QC and Baroness Helena Kennedy) the majority in the Commission did not accept that therefore enactment of a new Bill of Rights was unnecessary since: ‘there is a lack of public understanding and ‘ownership’ of the Human Rights Act’ (Report, para 80) which they found was ‘equally, if not even more, evident in relation to the European Convention on Human Rights and the European Court of Human Rights’. In other words, the majority did not accept that the HRA was already playing the role of a BoR and could just continue to do so.

The majority in the Commission did not think that a public education programme about the HRA (para 7.36) or ECHR was the answer because public perceptions were not likely to change (para 12.8); so they found that there was a strong argument for a fresh beginning in the form of a new BoR (para 12.7), but without recommending repeal of the HRA. Seven out of the nine Commissioners therefore recommended introduction of a Bill of Rights: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” (para 84) Two of the Liberal-Democrat nominees in the minority, Helena Kennedy and Philippe Sands, in their separate paper in Vol 1, disagreed with the proposal for a new BoR; they also disagreed with the majority on the issue of support for the HRA and pointed out that the current arrangements were more strongly supported in Wales, Scotland and Northern Ireland than in England. But although the majority of the Commission gave support to the introduction of a new BoR (para 12.7), the role it should play in terms of creating a ‘fresh beginning’ remained unclear, as discussed below.

A polarised Report

The uneasy compromise reached between the two parties in setting up the Commission was reflected in its membership – split between nominees from each party – and in the fragmented nature of the Report itself, which contains no less than eight separate papers by Commission members or groups of members, dwarfing the sections of the Report that the majority managed to agree on. Indeed, it would not be too much of an exaggeration to say that seeking to discover any majority proposals in the Chapters in Volume 1 among the mass of descriptive material, discussion of the views of respondents, and the separate papers, is a strangely onerous task. There are two volumes running to 514  pages combined, but aside from the short ‘over view’ section at the beginning of Volume 1, it is hard to find more than about 15 pages in the body of the Report dealing with the proposals, and even those pages are largely concerned with the views of the respondents. Clearly, lack of unanimity meant that the Commission had to rely on majority views from respondents. However, the majority departed from those views in relation to the key proposal that there should be a new BoR rather than relying on the HRA as a BoR.

The separate papers reveal that the ideas of the Commission members as to the role a Bill of Rights should play are, overall, not reconcilable with each other. As Helena Kennedy and Philippe Sands put it in their separate paper: “the fault lines amongst us are real and deep”. On the one hand, a number of the Conservative nominees, reflecting views expressed at various times by Cameron, Grieve and May, appear to consider that it should be utilised to enhance Parliamentary autonomy and escape from the ‘absolutism’ of the ECHR, or from the ECHR altogether; on the other, the view of the Liberal Democrat nominees could be characterised as being that rights’ protection should be enhanced or maintained, either by means of a new BoR or via the HRA.

Baroness Kennedy and Philippe Sands’ minority paper entitled “In Defence of Rights” opposed the idea of a new BoR, but said: “We remain open to the idea of a UK Bill of Right were we to be satisfied that it carried no risk of decoupling the UK from the Convention”, a proposition they were not prepared to be associated with. They did not support a new BoR because their work on the Commission had “alerted [them] to what they believe is the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” – a view expressed by a number of their colleagues on the Commission (ie certain of the Conservative nominees) (para 12.5). Lord Faulks QC and Jonathan Fisher QC in a paper entitled ‘Unfinished Business’ found: “In the period since our appointment as members of the Commission on a Bill of Rights it has become increasingly clear that a key issue, if not the key issue, has not been adequately considered by the Commission and reflected in the terms of its report. The issue concerns how the UK should respond to the judicially activist approach taken by the European Court of Human Rights to the ECHR over the last 30 years”. They concluded that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights.”

Given such polarisation of ideas in the Commission as to the role of the HRA, ECHR and any new BoR, it is unsurprising that the ideas put forward for the content of any BoR were highly tentative and cautious, and that proposals for a BoR, as opposed to the HRA, put forward at various points in pursuit of the ‘BoR as panacea’ notion in particular by Dominic Grieve, did not find their way into the Commission’s proposals.

Would the ‘proposals’ if realised in a BoR create a difference from the HRA?

While the majority on the Commission agreed that there should be a new BoR, they were clearly unable to agree on its content. So the discussion below struggles to identify any clear recommendations from the majority that would differentiate such a BoR from the HRA. In general there are no ‘proposals’ in the sense of firm recommendations – the majority would only go so far as to identify matters worthy of consideration if a BoR was ever in contemplation.

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

The problem, from the anti-HRA viewpoint espoused by a number of senior Conservatives, is partly that the interpretations of the Convention rights at Strasbourg on a number of contentious issues – in particular prisoners’ voting rights, aspects of counter-terrorism law and deportation of non-citizens – are ones that are not assented to by the Westminster Parliament, or in some instances by judges in the House of Lords/Supreme Court, (SSHD v AF (no 3) (2009)) but which may have effect in UK law (see eg Theresa May’s speech to the conservative party conference in Oct 2011) or in effect constrain Parliament (eg compare PM Qs 24th Oct 2012 cols 922-3 with the Voting Eligibility (Prisoners) Draft Bill Nov 2012, Cm 8499).

From this viewpoint the effects of ss2 and 3 HRA combined, or of ss2 and 6, are part of the problem. S2 HRA can operate in conjunction with ss3 or 6 to allow a Strasbourg decision, that happens to bear on a matter currently in front of a domestic court, to have legal effect in domestic law (as occurred in AF no3), before the executive has a chance to react to the decision. While the government is bound under Article 46 ECHR by final Strasbourg decisions, the executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might.

Senior Conservatives have proposed changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, presumably partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty. In 2009 Dominic Grieve said that the equivalent of s2 HRA in a BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Grieve has argued that the HRA had been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended”. Instead, he said, a new bill of rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court: “We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions” (Grieve Middle Temple Lecture, 2009). He has also said: ‘there is no duty in the ECHR to follow Strasbourg case-law’ (Conservativehome blog 2009). Commission member Anthony Speaight said on this in evidence to the Constitutional Reform Select Committee in 2011: ‘the court…makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right….’. Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. He has also said on s3 that it is wrong that courts should ‘have power to stand a statute on its head’ (Conservativehome blog 2009).

Unsurprisingly, the Commission’s proposals did not meet these concerns. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under s2; it was clearly the intention underlying s2 that the jurisprudence would not be viewed as, in effect, binding (see Klug and Wilbore ‘Follow or Lead?’ (2010) 6 EHRLR 621). But the stance taken towards s2 in the jurisprudence overall bears little relation to the wording it employs. It was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, (eg Lewis ‘The European Ceiling on Human Rights’ [2007] PL 720) which until recently remained the dominant approach (Manchester CC v Pinnock (2010)). On the other hand, in R v Horncastle (2010) the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as Parliament originally intended. The Commission noted that there was a substantial body of opinion that wanted to enable it to be made clearer that courts were free to depart from Strasbourg (at paras 56 and 57). The Commission noted that JUSTICE had reflected this position: “there has been a longstanding debate on whether section 2 [of the Human Rights Act] requires our judges to be bound by the jurisprudence of the European Court of Human Rights. Although there is a clear line of case law which suggests our judges consider themselves so bound, there is nothing in the Human Rights Act 1998 which requires this approach…The judges themselves appear to be moving away from this unduly restrictive approach…Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudence.” (para 56)

But although, as JUSTICE noted, it cannot be said that the judges have confined themselves only to ‘taking account’ of the Strasbourg jurisprudence, the Commission did not propose a change to the position under s2: ‘There was also a clear majority in favour of maintaining the requirement in the Human Rights Act on UK courts to ‘take into account’ relevant judgments of the European Court of Human Rights with three quarters of those responding on this issue wanting to maintain the current formulation. However, a number of those taking this view did so on the basis that our courts were now correctly interpreting the Act’s wording in this respect having failed on some occasions to do so in the past’ (para 58).

The Commission proposals were somewhat equivocal as to the key current domestic ECHR enforcement mechanism in s6 HRA, recommending in its ‘over-view’ that consideration should be given to broadening the definition of ‘public authority’ so that private sector organisations providing public services would count as ‘public authorities’ (para 97) although in the Conclusions chapter it merely stated that “the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward” (para 12.26).

Grieve had proposed that the s10 HRA fast-track procedure for responding to a s4 declaration should be abolished (British Academy Forum (2010)) which would be one means of limiting the impact of s4, which has come to be viewed as creating a de facto obligation upon the executive to act, even though as a matter of law a s4 declaration can be disregarded. But the Commission proposed no change to ss4 or 10, finding that s4 had performed successfully (para 12.25).

Overall, no ideas for significant changes to the interpretation and implementation of the rights in the UK were put forward by the majority to warrant consideration in relation to any BoR. The Commission concluded that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (para 95).

Changes to the listed rights?

Any aim of senior Conservatives of seeking to weaken the ties to Strasbourg via a BoR would not be realised via changes to the listed rights, as far as this Report is concerned, which was no doubt inevitable, given the Commission’s remit. The Commission said that it did not oppose the concept of additional rights in a BoR in principle (para 12.18). When listed rights were referred to in the Commission’s proposals, the reference was, it appears, to the list of ECHR rights in Sched 1 HRA (para 12.11) possibly with some additions. The Commission considered the inclusion of a right to jury trial, but the Report found that there were problems regarding the forms that a right to trial by jury could take (paras 8.41, 8.44). It also looked at the possible inclusion of rights to administrative justice and the creation of limits on the power of the state to impose administrative sanctions without due process of law, such as fines for speeding (British Academy Forum (2010)). The Commission merely concluded that consideration should be given to inclusion of such rights (para 8.44), if there was to be a BoR.

The free-standing anti-discrimination Protocol, Protocol 12 ECHR has not been ratified by the UK and there are no indications at present that the current government intends to ratify it. None of the speeches of Conservative spokespersons before or after the 2010 Election made mention of the possibility of protecting the further rights under Protocol 12. The Commission found that if a BoR was under consideration in future “the most obvious candidate for inclusion” was Protocol 12 and the “right to equality and non-discrimination currently enshrined in the Equality Act 2010″ (paras 8.15, 8.23 and 91).

Various groups put forward arguments to the Commission for specific additions to the current HRA Sched 1 rights, such as the inclusion of certain socio-economic rights (eg Children’s Rights Alliance advocating the inclusion of children’s rights). But the Commission did not recommend that particular “socio-economic” or environmental rights should be added to a bill of rights: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.” (paras 91and 8.21) Similarly the Report noted that “Approaching 100 respondents to our consultations were in favour of the incorporation into any UK Bill of Rights of rights contained in international instruments which the UK has already signed but not fully incorporated into our domestic law” (para 8.45), but did not make a proposal that such rights should be included.

So in terms of the list of rights covered, any Bill of Rights based on these proposals could look something like an ‘HRA plus’ (term used by JCHR), but not plus much. Chapter 8 of Vol 1, which considered these rights, was concerned more with the views of respondents to the Commission, than with clear proposals.

The question whether a BoR should give greater guidance to judges on balancing competing rights was answered in the negative: ‘On balance our conclusion, in line with that of the majority of respondents on this issue, is that if there were to be a UK Bill of Rights the balancing of competing rights within such a Bill, where such occurred, would be better left to the courts not least because of their ability to weigh the competing considerations against the facts of the particular case before them.’ (para 8.51)

The Commission considered that changes to the wording used to express the rights could be employed to create a distinctively ‘British feel’ to the instrument in order to address the public’s lack of allegiance to the HRA. It was not proposed that the wording of the rights themselves should see any radical change but the Commission considered that if a BoR was under consideration it would be “desirable in principle” that its wording should reflect “the distinctive history and heritage of the countries within the United Kingdom.” (para 86 and 8.8)

Relationship between the ‘proposals’ and the concerns about the HRA identified by the majority

One of the firmer conclusions of the majority was that “the key argument is the need to create greater public ownership of a UK Bill of Rights than currently attaches to the Human Rights Act” (para 12.11). However, the proposals that emerged would be unlikely, if realised in practice, to address that need, taking account of the context – the apparently deep public dissatisfaction with the HRA. They are so modest and cautious (even leaving aside the devolution context which clearly provided a problematic back-drop to the Commission’s work) (Chap 12, 12.3, 12.4 and Chap 9) that they might be said to amount in effect to a proposal to re-badge the HRA in a BoR, despite the Commission’s acceptance that it has become discredited in the eyes of the public. A key question, unexplored in the Report, is – why is there dissatisfaction with the HRA? Of course there was no public information campaign prior to its introduction, leaving a vacuum which created room for a narrative hostile to the HRA to take hold. Lord Lester, speaking as a member of the Commission, has attributed the nature of that narrative to a prolonged media attack on the HRA which has at bottom the purpose of protecting their own commercial interests; he said on this issue to the Political and Constitutional Reform Committee in 2011: “some sections of the media—self-interested, God bless them—have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act…” (Answer to Q 59). He indicated that the hostility might spring from restrictions “on their right to invade personal privacy” created by the HRA (Answer to Q 65).

For example, the idea – part of the media campaign against the HRA – that human rights’ concerns stand in the way of Britain’s ability to combat terrorism, has found a particular focus in relation to Abu Qatada (see eg The Sun 15.4.12). David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the Qatada case as illustrating the need for reform, he said ‘we have gone through all reasonable national processes…yet we are still unable to deport [or detain him]’. Thus, parts of the media and senior members of the Conservative party have taken the stance – possibly coincidentally – that the Human Rights Act makes dealing with suspected terrorists harder, putting lives and national security at risk; and the lines between the actual impact of the HRA in this respect in legal terms, and what would occur in any event under the ECHR at the international level, have become blurred, perhaps intentionally.

Thus if a BoR was to be introduced, based on these proposals, which would play a role very similar to that of the HRA, it would appear probable that parts of the media might attack it as a merely re-badged HRA, leading again to public dissatisfaction with the new BoR. But conversely and unpalatably it might appear to follow that if a new BoR was introduced post-2015 under a Conservative government, not based on these proposals, and disassociated from the ECHR, it would be welcomed by parts of the media, meaning that it might be more likely to command public acceptance, at least in England.

Conclusions

It is concluded that there was never any real basis for considering that the Commission might propose a BoR which would answer to the expectations of a BoR expressed by Cameron in 2011. Clearly, the split in nominees, on party lines, and the Commission’s remit, always suggested that the proposals for a BoR that eventually emerged were not likely to do so. It would appear that the role a number of Conservatives apparently wanted the BoR to play, and the proposals likely to emerge from that Commission, were never likely to cohere with each other. It seems unlikely that there was ever any real expectation from the point of view of the Conservative leadership that the proposals would lead to a new BoR that might cure the ills of the HRA. Thus, deployment of the notion of a BoR for the last few years as a panacea for the ills of the HRA has arguably always been an illusion, designed to calm right-wing concerns about non-repeal of the HRA, since repeal was almost certainly impossible in the context of the Coalition. In a much-reported speech Theresa May recently made it clear in relation to the Qatada saga that repeal of the HRA and withdrawal from the ECHR would be on the table if the Conservatives gained a majority in 2015. “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?” she said. No mention was made of the Commission’s Report on the BoR: the role Cameron had previously outlined for it appears to have been quietly forgotten. In other words, senior Conservatives seem to be distancing themselves from this Report, unsurprisingly, and the debate appears to be shifting from the ills of the HRA to those of the ECHR at Strasbourg.

This piece has argued that the Commission did fulfil the role of simultaneously preventing conflict between the Coalition partners over the HRA for a time and calming Conservative concerns regarding decisions under the HRA. But in so far as there were real expectations  that a BoR would provide an answer to the ‘problem’ of the HRA, the Report might appear to be disappointment to the Conservative leadership since if its proposals (or ideas it put forward that could warrant consideration) were realised in practice it clearly would not provide the panacea apparently hoped for. But on the other hand, the majority of the Commission did propose a new Bill of Rights, creating a momentum behind the BoR idea which might be advantageous post-2015 to a Conservative government if one is returned and pushes forward with the proposals recently floated by Theresa May regarding the HRA and ECHR. The proposal of a BoR could help to pave the way to repeal of the HRA; it might allay concerns that Britain would become ‘a pariah state’ (Dominic Grieve) if it withdrew from the ECHR, and the BoR itself could act as a Trojan horse in terms of restriction of rights (Michael Fordam QC Report, para 7.32).

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’   UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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by | March 7, 2013 · 9:59 am

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)

 

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by | March 4, 2013 · 3:11 pm

Colm O’Cinneide: Human Rights, Devolution and the Constrained Authority of the Westminster Parliament

a_ocinneideThe debate over the place of human rights in UK constitutional law continues to run and run. The Home Secretary, Theresa May MP, has recently criticised the manner in which UK judges are interpreting the right to family life protected by Article 8 of the ECHR. A private members bill tabled by Tory MP Charlie Elphicke, the Human Rights Act 1998 (Repeal and Substitution) Bill, which would de-incorporate Convention rights and replace them with diluted ‘British’ replacements, received its Second Reading on the 1st March 2013. Furthermore, at the time of writing, the Mail on Sunday is quoting Theresa May again to the effect that the next Tory election manifesto will include a commitment to withdrawing from the jurisdiction of the European Court of Human Rights, de-incorporating Convention rights, or some such equivalent measure.

As a consequence, it may be a good time to highlight the fact that changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK.

The HRA itself is a piece of primary legislation which applies to all public authorities throughout the UK and can be amended or repealed by the Westminster Parliament. The UK’s international relationship with the Council of Europe and the European Court of Human Rights also comes squarely within the sphere of reserved powers. However, human rights are not per se a reserved function, and there exists a separate and distinct ‘devolution dimension’ to the UK system of rights protection. The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues (S. 6(2)(c) and s. 24(1)(a) of the Northern Ireland Act 1998; s. 29(2)(d) and s. 57(2) of the Scotland Act 1998; s. 81(1) and s. 94(6)(c) of the Government of Wales Act 2006). They can also take measures to give further effect to the UK’s international human rights obligations when acting within the scope of their powers, including but not confined to those that arise under the ECHR (para. 3(c) of Sch. 2 of the Northern Ireland Act 1998; para. 7(2) of Schedule 5 of the Scotland Act 1998; and in general Schedule 5 of the Government of Wales Act 2006).

The existence of this ‘devolution dimension’ imposes some constraints on the freedom of the Westminster Parliament to reconstruct UK human rights law as it sees fit. For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters. Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions.

Thus, for example, if the Westminster Parliament wished to root out the ECHR rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal from Convention rights from the devolution framework. Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA, the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.[1]

Furthermore, the political context is very different in the devolved regions when it comes to human rights. The recent report of the Commission on a Bill of Rights noted that ‘there was little, if any, criticism of the Strasbourg Court, of the European label of the Convention, or of human rights generally in Scotland, Wales or Northern Ireland’ (p. 163), while Philippe Sands and Helena Kennedy in their minority report suggest that ‘existing arrangements under the Human Rights Act and the European Convention on Human Rights are not merely tolerated but strongly supported’ in the devolved regions (p. 266). In addition, as Christine Bell has discussed on this blog, Northern Ireland, Scotland and Wales are in the course of developing their own unique approaches to human rights. This makes it unlikely that the devolved legislatures will be willing to consent to any Westminster legislation which sought to make significant changes to how human rights are protected within the sphere of devolved functions. Indeed, in giving evidence to the Commission on a Bill of Rights, the Scottish Government made it clear that it considered that the Westminster Parliament lacked the legitimacy to determine the scope of human rights protection in Scotland (see p. 166 of the Commission’s report).

Additional issues arise in respect of Northern Ireland. The Belfast Agreement specifically required that the ‘UK government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention’ (Rights, Safeguards and Equality of Opportunity, para. 2.). In addition, as Brice Dickson and Colin Harvey have recently discussed on this blog, a separate Bill of Rights process is underway in Northern Ireland, whose roots also lie in the provisions of the Belfast Agreement. As a result, any attempt by Westminster to alter or amend existing human rights law which applies to Northern Ireland (whether relating to devolved functions or to reserved functions such as national security) is likely to be viewed as an unwanted interference with the fragile constitutional settlement that has been constructed there on the foundations laid down by the Belfast Agreement.

Of course, the Westminster Parliament is free to alter or amend existing UK human rights law as it applies to the sphere of reserved functions, as recognised by Anthony Speaight QC in a thoughtful paper on devolution attached to the final report of the Commission on a Bill of Rights. However, even if Westminster were only to legislate in this field in respect of reserved functions (and exempted Northern Ireland from the scope of application of the proposed new law), devolution would still have the potential to create troubling inconsistencies in UK human rights law.

For example, if Westminster were to de-incorporate Convention rights and replace the HRA with a new ‘British’ Bill of Rights containing home-grown rights standards that applied in the sphere of reserved functions, Convention rights would still be applicable within the sphere of devolved functions. This could generate some complex legal issues where devolved functions in areas such as criminal justice and social welfare overlap with reserved powers such as immigration control. (These complexities would obviously be exacerbated if the entirety of Northern Irish law, including law relating to reserved functions, was exempted from the scope of the new ‘Bill of Rights’.) It would also mean that Convention rights would continue to be applied by UK courts in the context of the devolved regions, ensuring that the Strasbourg jurisprudence would continue to exert some direct influence on the development of UK law.

Alternatively, Westminster could simply choose to ignore the devolved legislatures and push through a new human rights law. However, this could generate a constitutional crisis if one or more of the devolved legislatures and/or governments were to cry foul, and it would in all probability breach the terms of the Sewel Convention. In any case, as already mentioned, the devolved legislatures might be able to limit the effects of such a measure by enacting their own devolved version of the HRA.

In general, the ‘devolution dimension’ cannot be readily ignored or sidelined in the ongoing human rights debate, as the Commission on a Bill of Rights recognised in its final report. The current parameters of the devolution settlement impose substantial legal and political constraints upon the power of the Westminster Parliament to alter existing UK human rights law. This will not come as a surprise to legal experts who are well aware of the limits to parliamentary sovereignty, as analysed by Mark Elliott, Nick Barber and others. However, discussion of these constraints have been largely absent from parliamentary or media debates on the HRA and ECHR. In particular, there has been little recognition that Convention rights have become woven into the fabric of the unwritten UK constitution in multiple different ways, which may prove very difficult to unravel.

Philippe Sands and Helena Kennedy have suggested that certain of their colleagues on the Bill of Rights Commission viewed the constraints imposed by devolution on the freedom of action of the Westminster Parliament as a case of the ‘tail wagging the dog’. There is a danger that a similar attitude may blind politicians in Westminster to the reality that the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.

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

Suggested citation: C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)

 

[1] See the research paper written by Anthony Speaight QC and attached to the report of the Commission on a Bill of Rights, ‘Devolution Options’, pp. 243-256, especially at p. 250.

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by | February 26, 2013 · 9:11 am

David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases

davidmeadIn his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.”

This short post summarises some of my own “work in progress” which applies Lakoff’s idea of framing, or “conceptualising”, to the law specifically when human rights issues come to the fore. My primary aim in doing so is to seek views on whether it offers anything new and coherent. I vacillate between thinking that the argument it presents seems rather like the emperor’s new clothes and thinking there might somewhere be a relatively rich seam to be mined.

Not being much of a legal theorist or legal reasoner, it has dawned on me several times that I may be barking not up the wrong tree, but up a non-existent tree. That said, the decision – by either counsel or judge – about how to “conceptualise” the case in hand, or more precisely, the facts of the case in hand, doesn’t seem to be given much attention in legal literature. Yet, the way in which any legal scenario is conceptualised, that is to which area of law the factual matrix is best or most appropriately linked, can go a long way to determining the outcome or ultimate disposition, exactly as it can with framing contentious political questions. This happens in most cases at an almost subliminal level and for the most part is unlikely to be disputed, and unlikely to affect the outcome. That’s not always the case. For a plaintiff wrongly to decide – or to be wrongly advised – that a case raises a public law issue, rather than being simply a private law dispute – public sector employment contracts for example – can have serious consequences, as it did in, say, Evans v University of Cambridge.

In the human rights field, how the matter has been framed or conceptualised has the potential to affect how the case is resolved, if not the actual outcome in every instance. The remainder of this blog outlines some of the ways in which this might occur. The fuller article will plot a formal typography. Issues and concerns surrounding the conceptualisation of a case is neither new nor unique to human rights cases – or even public law. This much, I hope, is obvious. We might think of arguments over administrative vs. judicial hearings, in the days of Nakkuda Ali and Ridge v Baldwin, or categorising civil wrongs as actions on the case or damages as pure economic loss. The point is more that it has the potential to have greater effect, simply because of the issues in play and the public nature of the rights at stake.

First and most obviously, a case may not be framed as raising a rights-issue at all. The pre-HRA case of Sultan Khan in 1996 exemplifies this well. There, the House of Lords did not see the placing of a bug on a suspect drug dealer’s house as being about privacy at all. It was, in their eyes, simply a case about the admissibility of evidence. Secondly, there are cases where the courts do not see the facts as engaging a right at all. A good example would be the employment law case Pay where the EAT did not consider that being dismissed by the probation service for engaging in sado-masochistic sexual activity outside of and unconnected to work, raised Article 8 issues at all. Another would be Gillan. There, a half-hour stop and search under s.44 of the Terrorism Act 2000 was held by the House of Lords not to be a deprivation of liberty (within Article 5) and they doubted if it engaged the right of privacy in Article 8. In both, the European Court held (Gillan v UK) or in Pay v UK assumed otherwise – though Mr Pay lost on the facts. It’s crucial, of course, that the engagement issue is “correctly” disposed of, if for no other reason than that – in the case of qualified rights – the burden of showing the proportionality of the measure then falls on the state. Whether the facts are framed as to prefer one right over another is the third way in which conceptualisation rears its head. Was Mendoza really a case about equality and non-discrimination – or is it possible to see it as raising questions about the allocation and regulation of that scarce socio-economic resource, housing supply – albeit in the private market? The extent to which a court is prepared to defer to the primary decision-maker may depend on such categorisations. Last, whether we – and judges – view a case as being about private rights or about public rights, and values, is important too – and will clearly affect the outcome. Of course, the Occupy cases like Samede are about how private landowners can use their own land – but are they not also about how groups of citizens, perhaps disenfranchised, are able to utilise their public rights of free speech and protest? In an area I have written about recently – police searches by consent ([2012] Crim LR 97) – seeing the only issue as one of giving the police licence to do that which would otherwise be trespass and not as raising public law issues of accountability, transparency and power does not fully convey the position when the police come knocking.

Framing is not new – nor confined to law. We see it every day in newspapers – fitting an item into our pre-existing world view or sensitivities, or even expectations. Was Hilary Mantel’s LRB piece, really an attack on royalty – and on Kate Middleton – or was it a comment on the workings of the press, something concealed in the press reports themselves? The press of course “frame” the human rights debate too – by selective inclusion and language, and even perhaps deliberate conflation of that two-headed European beast, the EU and the ECHR. Framing and conceptualisation in the law though is qualitatively different. By its nature, litigation has the potential to juridify social relations and scenarios – they exist no longer on the street or at work but are legally enshrined and given legal form  – and not, of course, simply for that one case. Deciding, to take another example, whether a claim for misusing private information is a bastardised equitable claim or a new type of tort will dictate whether damages are can be refused for future claimants on a discretionary basis. It’s important we work at seeing the law through the right lenses.

David Mead is Professor of Public Law & UK Human Rights at the University of Essex

Suggested citation: D. Mead, ‘”Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases’ UK Const. L. Blog (26th February 2013)(available at http://ukconstitutionallaw.org).

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by | January 24, 2013 · 11:46 am

Richard Ekins: Rights-consistent interpretation and (reckless) amendment

RichardEkins_profileDiscussion about s 3 of the Human Rights Act 1998 (HRA) tends to focus on the scope of s 3(1).  My interest in this post is in 3(2)’s direction that the section “applies to primary and subordinate legislation whenever enacted”.  I suggest that this decision to extend s 3 to statutes whenever enacted amounted to an uncertain and reckless amendment to the statute book (that is, to all statutes in force at the time the HRA came into effect in October 2000).

What “it is possible to do” under s 3(1) may be quite different in respect of pre and post-HRA statutes.  For statutes enacted after the HRA, the section grounds a strong presumption that Parliament intends to legislate consistently with the ECHR.  For statutes enacted before the HRA, at the time the enacting legislature acted there was no such (strong) presumption; indeed, the legislative act might well predate the ECHR, perhaps by several centuries.

If one presumes that Parliament does not intend to change the law in an unclear fashion, one might reason that in respect of pre-HRA statutes, s 3 directs judges to resolve any open interpretive question in favour of a rights-consistent interpretation, but not otherwise to overturn or change any settled interpretive judgment.  This would be all that it was “possible to do” when the enacting legislature had not acted in light of a strong presumption of conformity to the ECHR.  On this view, enacting s 3 would not change the statute book as it stood at October 2000.  However, the courts have never questioned that Parliament intended s 3 to change the meaning of pre-HRA statutes.  What argument there has been about the temporal scope of s 3 has concerned whether the new meanings its application warrants apply to actions and events taking place before the HRA’s commencement.  The judicial answer, in due course, was that they do not.  It has been common ground throughout the case law that the enactment of s 3 overturns or changes what were otherwise clear, unambiguous meanings prior to the HRA’s commencement.

There were reasons for this strong conclusion.  The section extends to statutes whenever enacted, without any qualification such as “unless the context otherwise demands”.  Qualifications of this kind are common to Interpretation Acts, which apply to statutes whenever enacted but which do not purport to amend them.  An Interpretation Act sets out a partial interpretive regime relevant to every statute, which may overturn unsound interpretive methods (say, literalism) and settle otherwise open questions, but does not purport to change the object of statutory interpretation or to change what statutes have always meant.  Having said this, one might think that in respect of s 3 any such qualification would have been redundant because the section already refers to what may be “possible”, plainly implying that not everything is possible.  Nonetheless, there are strong reasons to conclude that s 3 was intended to change the meaning of pre-HRA statutes.  The point of the HRA was to help bring the United Kingdom into line with the ECHR, understood as a body of international law authoritatively interpreted by Strasbourg, and hence to avoid the embarrassment of Strasbourg challenge.  The legislature may well have intended to change the meanings of pre-HRA statutes by extending the application of s 3 to statutes whenever enacted.  Thus, Parliament acted to amend the statute book to this extent.

It was of course open to Parliament to amend the statute book in this way.  But it was a reckless use of legislative authority.  Parliament in 1998 amended every statute to the extent of its inconsistency with the ECHR, as authoritatively interpreted by Strasbourg, subject to the limits of what was ‘possible’ under s 3(1).  It did not promulgate the law as amended.  Indeed, it did not consider the reasons for each amendment that it made and it did not choose each amendment.  Instead, it chose an indistinct set of amendments, the content of which was not open to it, considered by it, or chosen by it.  The legislators may have assumed that the United Kingdom was largely in conformity to the ECHR, so that very few legal changes would be required.  Any such assumption was irresponsible.  The legislature should grasp the content of the legal changes that it makes before it makes them.  To do otherwise is to fail to exercise its authority in response to reasons.  It is hard to imagine a less responsible legal act then to amend every statute by means of an opaque formula (the obscure s 3(1) taken together with the vague ECHR and often unstable Strasbourg jurisprudence) when one has no way of knowing, and has shown no inclination to discover, precisely how one is changing the law.

This analysis is relevant to the question of how Parliament should go about amending or repealing s 3.  If Parliament were to decide that s 3 (as interpreted) is unsound – because inimical to the rule of law say – it might choose to repeal the provision outright or to replace it with an alternative formulation.  The repeal of s 3 would revive the interpretation of pre-HRA statutes, which the enactment of s 3 had otherwise displaced.  This would be a relatively clear change and it would be open to Parliament to consider the law it would be acting to make by such an action and to choose it responsibly.  Still, for the choice to be responsible it would have to be preceded by careful deliberation about the substance of the relevant changes, for there might be good reason, in some or many cases, to preserve the post-2000 interpretation, notwithstanding the abrogation of s 3.  If such were the choice then that lawmaking choice ought to be given clear statutory effect, which would require detailed textual amendment on point.  Thus, repealing s 3 would be no simple legislative act: the rule of law would call for careful, extended thought and then precise, comprehensive action.

The repeal might be taken also to change the meaning of post-HRA statutes, removing the interpretive direction that grounds the (often surprising) interpretations of those statutes.  Alternatively, one might reason that those interpretations were grounded in inference about the intent of the enacting legislature, such that repeal of s 3 ought not to undermine that inference in respect of statutes already enacted (plainly it would remove the grounds of the inference for subsequent statutes).  Any repeal ought to settle this point clearly.

Amending s 3 to introduce some new formulation (say the choice of words in s 32 of the Charter of Rights and Responsiblities Act 2006 (Vic)) might have the same effect as outright repeal (it would depend on the terms of the new formulation) or it might substitute for s 3 some intermediary, alternative rule.  In the latter case, the amendment would change the existing statute book in ways that would be difficult to predict.  This would go the wisdom of amendment rather than repeal, for it may be that the legal consequences of the former are too opaque to undertake responsibly.  Also, at the very least and in sharp contrast to the enactment of the HRA itself, in making any such change Parliament ought to enact a detailed transitional scheme to avoid (or at least minimise) confusion.

Interestingly, s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA), which was in some ways the precursor to s 3 of the HRA, is silent on the question of whether it applies to statutes enacted before the NZBORA.  Yet the courts have never questioned that it does so apply and indeed in some cases, notwithstanding their rejection of the relevant HRA jurisprudence, have been open to understanding the NZBORA’s enactment to amend those past statutes – an amendment which is, as I say, imprecise, unclear and irresponsible.  Contrast s 4 of the Interpretation Act 1999 (NZ), which provides explicitly that the Act applies to enactments whenever enacted unless the enactment provides otherwise or its context requires a different interpretation – a formulation which is intended to disavow any intention to change the law by changing (rather: restating) some interpretive “rules”.  The Interpretation Act acknowledges what the NZBORA and HRA do not, namely that acting to change the meaning of a statute is to amend it, and amendment should not be haphazard.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Rights-consistent interpretation and (reckless) amendment’ UK Const. L. Blog (24th January 2013) (available at http://ukconstitutionallaw.org)

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by | December 20, 2012 · 9:38 am

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,

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by | December 19, 2012 · 3:02 pm

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.

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by | · 2:55 pm

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

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by | December 7, 2012 · 8:28 am

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).

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by | November 14, 2012 · 4:35 pm

Tom Hickman: The Return of Abu Qatada (to the streets of London)

The Abu Qatada saga is proving to be a very expensive and very embarrassing headache for the British Government. Following his narrow victory in Strasbourg in January, in which he succeeded only under Article 6, many assumed that the Government would secure the necessary concessions from the Jordanian Government that would enable him to be returned. Instead, yesterday he was back on the streets of London rather than the streets of Amman, on bail, after SIAC ruled on Monday that any return to Jordan would still violate Article 6.

Abu Qatada’s victory has left the Home Secretary—who rashly stated in April that Abu Qatada would soon be on a plane back to Jordan—with egg on her face. The Government has said it will appeal SIAC’s ruling and the Prime Minister has lamented that he believed his Government had obtained the “right assurances” from the Jordanian Government.

Apart from the cost and the embarrassment, the saga is of great importance in constitutional terms because it poses one of the most significant threats to the UK’s human rights legislation, prompting calls for scrapping the Human Rights Act and re-defining our relationship with the Strasbourg Court.

Although such calls have been noisily repeated since Monday, SIAC did not decide any issue of principle, nor indeed did the case turn on assurances given by the Jordanian Government (no matter what the Government says).

The point at issue was very narrow. There was no dispute as to the legal test to be applied: it was agreed that the Commission should ask itself whether there is a real risk that evidence derived from torture would be used upon retrial of Abu Qatada in Jordan (It will be recalled that Abu Qatada was convicted in his absence of involvement in a series of explosions in 1998 and a foiled conspiracy in 2000 both against Western and Israeli targets in Jordan). There was no dispute that there would be a retrial in Jordan.  There was no dispute that there was a real risk that the statements made by two individuals who had been co-defendants in the proceedings had been given under torture. The question purely and simply boiled down to whether there was a real risk that those statements would be admitted in the retrial.

Thus, one of the most important and high profile human rights cases turned entirely on one of the most arcane issues of recent years: a question of Jordanian criminal procedure on the admissibility of evidence of co-defendants in the Jordanian State Security Court.

Questions of foreign law are becoming increasingly prevalent in public law cases. Foreign law issues have in the past mainly been confined to private law disputes, where contract or tort actions are pursued in the UK courts but where foreign law applies. UK courts and tribunals are perfectly comfortable examining foreign law and there are very well established ways of doing it.

SIAC considered expert evidence from two Jordanian lawyers. The UK Government relied upon a lawyer who used to practice in the State Security Court. Abu Qatada’s legal team relied upon expert evidence from the most senior serving member of the State Security Court. The court accepted the evidence of the latter.

There were two material points. On point one, SIAC held that the two former co-defendants could not give fresh evidence under oath in the State Security Court but that their previous statements to the Jordanain prosecutor could be adduced under the Article 148 of the Jordanian Code of Criminal Procedure in the retrial (“CCP”) (These are the statements which it is said were made under torture.)

On the second point, SIAC held that the prevailing approach of the State Security Court to exclusion of evidence which is claimed to be the product of torture is to require individuals to prove it. An amendment to the Constitution in 2011 prohibiting reliance on evidence obtained by torture had not altered this approach (it would, SIAC held, probably require a decision of the Court of Cassation for the approach to change). There was thus at least a real risk that the statements would be admitted because the passage of time meant the burden of proof would be “difficult to discharge” and allegations of torture had previously been rejected, despite significant evidence to the contrary.

On this basis SIAC ruled against the Home Secretary, and then released Abu Qatada on bail given the absence of any reasonable prospect of imminent removal.

Questions are being asked. The most immediate is: can the Government appeal? The answer is: with great difficulty. In English law questions of foreign law are treated as questions of fact. Appeal from SIAC lies only on questions of law. Not only was SIAC rigorous in its approach to the foreign law issue, the Government can hardly have been confident about its expert evidence. As SIAC recorded, the arguments advanced by the Government’s expert had not been included in his evidence to the Strasbourg Court and the opinions of his on which the Government relied had been “formed relatively recently”, i.e. conveniently since Strasbourg’s ruling. The Government’s expert also acknowledged that other defence lawyers that he had consulted did not share his views, and they were untested and not representative of past practice. By contrast Abu Qatada’s expert, apart from being better qualified and well regarded by the British Government, had consistently propounded his views as well as, remarkably, having provided “unstinting assistance” to the British Government since the Strasbourg ruling.

It should also be emphasised that the only other issue in the case was an assessment of risk based on the expert evidence, and questions of risk are also questions of fact.

In short, whilst it is not inconceivable that a question of law might be found here, the judgment provides thin gruel for the Government’s lawyers. SIAC took a conventional approach to making findings of foreign law on which the case turned.

The next question is: how can Abu Qatada be returned? The answer to this question is that it would require an amendment to the CCP to alter the burden of proof. The Government is not in a particularly strong position to press for this given that the position of Jordanian law as it stands is not significantly different from the approach contended for by the Government and accepted by the House of Lords in A (No 2) [2006] 2 AC 221, that is to say, proof of torture on balance of probabilities. The only other options appear to be an undertaking by the prosecutor not to rely on the evidence of the two former co-defendants or not to re-try Abu Qatada. Both these options would also require amendments to the CCP and may be unrealistic.

Given the limited options, the next question is: is there a problem with human rights law? There is no doubt that in this exceptional case the Government is stuck between a rock and a hard place. Some may question Strasbourg’s decision in Abu Qatada v UK that the use of evidence obtained by torture automatically constitutes a flagrant denial of justice in a foreign state irrespective of the significance of the evidence to the trial and the legal protections in the country to ensure that such evidence is excluded. Prior to Abu Qatada v UK, the Strasbourg Court’s position was that the use of such evidence “raises serious issues as to the fairness of the proceedings”. The further step taken in Abu Qatada v UK, that its use is inevitably a flagrant denial of justice, however it comes about, results in the paradox that a person has a right in this country not to be subject to a trial in a foreign state in which there is a real risk that evidence deriving from torture will be deployed; whereas a person in this country has no equivalent right in respect of a trial in this country, that is to say, it is not the law here that a hearing is automatically unfair if there is a real risk that evidence obtained by torture would be admitted. The fact that the Strasbourg jurisprudence may be moving towards recognising the latter right does little to reduce the oddity, not least because it still gives rise to the question of how ‘domestic’ and ‘foreign’ rights could be the same.

But an exploration of the pros and cons of the Strasbourg position would require a much more thorough analysis than can be given here. The Strasbourg jurisprudence is aimed at real and practical problems in respect of states in which torture is a deeply ingrained part of the system, and known to be so by the UK and other Contracting States. From SIAC’s account of the evidence against Abu Qatada in Jordan it seems doubtful that even a higher threshold would much assist the Government in his case. The confessions of the two former co-defendants would, it seems, form a central part of the case against Abu Qatada and there are very serious question marks indeed over those statements, which, nonetheless, are probably now beyond resolution one way or the other. Insofar as Abu Qatada remains at risk of a trial in which those statements are deployed as the case against him it is difficult to object to a human rights law which refuses to deport him. Objecting, nonetheless, is what many people are doing.

Tom Hickman is a barrister at Blackstone Chambers and a Reader in Law at University College London.

Suggested citation: T. Hickman, ‘The Return of Abu Qatada (to the streets of London)’,  UK Const. L. Blog (14th November 2012) (available at http://ukconstitutionallaw.org). 

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