affiliated to the International Association of Constitutional Law
In March, the Ministry of Justice announced the creation of a commission charged with the task of looking into the creation of a Bill of Rights for the United Kingdom. The creation of the commission—and the enactment of the Bill of Rights that it anticipates—has been a long time coming. The possibility of a domestic bill of rights has been regularly mooted by successive governments frustrated at being on the receiving end of judgments under the Human Rights Act 1998. The creation of the commission inevitably raises a number of questions. One set of such questions, concerning the composition of the panel and the method by which its members were selected, are considered in a separate blog post. This post, meanwhile, is concerned with two other issues raised by the establishment of the commission: its terms of reference, and the options open to it.
Terms of reference
The Bill of Rights commission was foreshadowed by the Coalition Agreement, which, in this area as in many others, sought to paper over divisions of opinion between the Conservatives and the Liberal Democrats by establishing a review. In their 2010 general election manifesto, the Lib Dems undertook to ‘[e]nsure that everyone has the same protections under the law by protecting the Human Rights Act’. The Conservative Party, meanwhile, said that it would ‘replace the Human Rights Act with a UK Bill of Rights’. That somewhat opaque manifesto position inevitably fell to be read against more direct statements by Conservative spokesmen, some of which evidenced strong scepticism about the HRA. For instance, David Cameron said that the HRA should be replaced with a British Bill of Rights in order to ‘define the core values which give us our identity as a free nation’ while facilitating a ‘hard-nosed defence of security and freedom’. The implication was that the HRA precluded a sufficiently hard-nosed approach in such areas. The further implication was that a domestic Bill of Rights would strike the balance differently between individuals’ rights (particularly those of such undesirables as terror suspects) and the interests of a the ‘law-abiding majority’ (a constituency almost as precious to politicians of all stripes as ‘hard-working families’).
Cameron’s above-quoted comments were issued some time ago, in 2006. However, they remain a contemporary reference point, at least for the present Attorney-General, and the Conservatives have continued, since assuming office, to imply that a Bill of Rights would be some sort of panacea that would allow the balance between individual rights and the public interest to be revisited. A case is point is the Prime Minister’s reaction to R (F) v Secretary of State for the Home Department  UKSC 17, in which the Supreme Court upheld a declaration of incompatibility concerning s 82 of the Sexual Offences Act 2003. The requirement that certain sex offenders be indefinitely subject to ‘notification requirements’, with no prospect of reprieve in the event of rehabilitation, was held to be a disproportionate breach of Article 8 ECHR. This judgment, said the Prime Minister, was ‘offensive’ and flew ‘completely in the face of common sense’. He also said that a Bill of Rights commission would be ‘established imminently because I think it’s about time we started making sure decisions are made in this Parliament rather than in the courts’.
Against this background, the Commission’s terms of reference look decidedly odd. Alongside a requirement to advise on reform of the Strasbourg Court, the Commission’s principal task is to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’. It must also ‘examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties’. This appears to leave little, if any, room for doing the sort of thing anticipated by David Cameron’s reaction to the sex offenders case. It was implicit in his remarks—and has been similarly implicit in the sceptical rhetoric of other Conservatives—that a British Bill of Rights might confer upon politicians (and so Parliament) greater latitude, thereby enabling them to strike a different balance between individuals’ rights and (their conception of) the public interest.
The solution to this conundrum, of course, lies in the politics of coalition. While Lord McNally, the Lib Dem Justice Minister, regards the ECHR as ‘part of our DNA’, it has been reported that the Conservative Party may undertake a policy review separate from that to be conducted by the Bill of Rights Commission—presumably with a view to bringing forward, for the 2015 election, proposals more radical than those that would be possible under the Commission’s terms of reference. Indeed, a recent Policy Exchange paper floated precisely such possibilities—including withdrawal from the jurisdiction of the European Court of Human Rights or even from the Convention itself; one of its authors now finds himself on the Bill of Rights Commission. The Conservatives do not, however, speak with one voice on this issue. In 2006, the Justice Secretary, Kenneth Clarke, is reported to have said that the proposal for a British Bill of Rights was ‘xenophobic and legal nonsense’. And, more recently, the Attorney-General, Dominic Grieve, said that the Convention rights ‘reflect deeply held British values on the rights of the individual against arbitrary or excessive state power’.
Against that background, an obvious question arises. Given the constraints inherent in its terms of reference, and leaving aside, for the time being, the possibility of a separate Conservative Party examination of more radical policies, what options are open to the Commission? It seems likely that the Commission will propose that a UK Bill of Rights should extend to certain rights—the most obvious being the right to trial by jury for certain types offences—that are not covered by the ECHR. In the light of the fact that the Convention acts a ‘floor’ rather than a ‘ceiling’, such an ‘ECHR-plus’ model would be unproblematic per se.
But of course HRA-sceptics are not agitating for an ECHR-plus model; rather, they contend for the adoption of an approach that would allow UK lawmakers greater freedom when it comes to trading off individual rights against other interests. Is there any scope for such an approach, bearing in mind the limitations imposed not just by the Commission’s terms of reference but also by law? The Attorney-General certainly thinks so. In an article published on the ConservativeHome website in 2009, endorsing Lord Hoffmann’s Judicial Studies Board lecture criticizing the Strasbourg Court, Dominic Grieve made it clear that while he has no difficulty with the text of the Convention, the same is not true of the way in which it is judicially interpreted and applied.
He argues that ‘there is no duty in the ECHR to follow Strasbourg case-law, and the obligation on the UK to respect Strasbourg Court adverse decisions, in a particular case to which it is a party, is an international treaty obligation and not a legally enforceable matter at all’. This statement conflates two propositions, both of which are, in any event, indefensible. On the one hand, the Convention certainly does require states to abide by the Court’s decisions: Article 46(1) provides that, ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’ And, more generally, Article 1 provides that, ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ On the other hand, there is the question of enforceability. Grieve appears to take the view that whatever obligations exist under the Convention are legally unenforceable because they are (merely) international obligations deriving from a treaty. Of course, questions about the ways in and the extent to which such obligations are enforceable is a complex question, but imply, as Grieve does, that we ought to be ultimately untroubled by Convention obligations because of their source in international law is disappointing, to say the least.
Grieve’s article also provides some insight into what the Government might have had in mind when it instructed the Bill of Rights Commission to ‘examine the operation and implementation of these obligations’. The possibilities fall under two main headings: interpretative and remedial.
On the interpretative level, it is possible that a UK Bill of Rights might encourage, or direct, British courts to follow the Strasbourg jurisprudence less slavishly than they have sometimes been inclined to. As is well known, section 2 of the Human Rights Act 1998 merely requires UK courts to ‘take into account’ Strasbourg jurisprudence; yet, as is also well known, British courts normally treat themselves as bound to follow the European Court’s interpretation of the Convention. Of course, if a matter falls within the ‘margin of appreciation’, there is some room for manoeuvre on the part of national authorities (including national courts). So, for instance, a Bill of Rights might conceivably direct domestic courts to consider the relevance, if any, of the margin of appreciation concept before deciding whether it is necessary to follow Strasbourg decisions relating to other jurisdictions. If, however, the European Court has rendered an interpretation of the Convention in a case that is salient and to which the UK was a party, it is hard to see what wriggle room an appeal to the margin of appreciation would be capable of creating.
This explains why British judges have sometimes reluctantly followed on-point Strasbourg jurisprudence with which they disagree. Perhaps the best example of this phenomenon is furnished by Secretary of State for the Home Department v AF (No 3)  UKHL 28, in which the House of Lords followed the Grand Chamber’s decision in A v United Kingdom (2009) 49 EHRR 29 concerning the fairness, in Article 6 terms, of special advocate proceedings. Most notably, Lord Hoffmann fell into line with Strasbourg only through gritted teeth. Its decision, he said, ‘was wrong and … may well destroy the system of control orders which is a significant part of this country’s defences against terrorism’. Nevertheless, he followed it because the UK ‘is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention.’ It is clear, then, that on a proper understanding of the legal position, the scope for interpretative latitude is limited. Of course, the position would be different if, as Dominic Grieve advocates, the Strasbourg Court made greater use of the margin of appreciation doctrine. In such circumstances, the opportunities would be greater for differential domestic interpretations of the Convention. But that is an approach that could only be brought about at a European level, not through the adoption of a British Bill of Rights.
What, then, of the remedial options that the Commission might explore? Here, too, Grieve’s article raises some possibilities that perhaps offer a clue as to the types of things that the government would like the Commission to consider. First, referring to the so-called fast-track amendment procedure under section 10 of the Human Rights Act, Grieve argues that, ‘It is wrong that primary legislation can be altered by Statutory Instrument if found incompatible with the Human Rights Act.’ It is unclear whether this sentiment reflects general discontent with Henry VIII powers, or whether, bizarrely, Grieve considers such powers to be particularly egregious in circumstances where they are used to ensure that UK law complies with international human rights standards. If the former, then it will be interesting to see whether this is manifested in government reluctance to secure and retain Henry VIII powers in other spheres.
Secondly, a more substantially, Grieve—referring to the way in which he perceives courts to have discharged their interpretative obligation under section 3 of the Act—says that it is wrong that courts should ‘have power to stand a statute on its head’. The proper reach of the interpretative obligation is, of course, a contentious matter. Whether, for instance, the House of Lords went too far in the seminal case of Ghaidan v Godin-Mendoza  UKHL 30 is a question that invites disagreement. But the debate about the lengths to which courts are (under section 3) or should be (under a Bill of Rights) required to go in terms of rights-consistent interpretation is not one that can take place in isolation from the wider context. Under the present scheme, if consistent construction is impossible, a declaration of incompatibility under section 4 is issued, in effect, as a matter of course. And, in such circumstances, the government—assuming, that is, that it is not prepared to play fast and loose with its obligations under the ECHR—is, in effect, required to amend the law. Even if British courts—like their New Zealand counterparts—were denied explicit declaratory powers in such cases, the courts’ inability to render a consistent construction would amount to a de facto declaration that UK law was deficient judged in Convention terms. To contend, then, that the courts’ interpretative powers should be weakened is to presuppose that this would carve out for lawmakers a degree of latitude for which the Convention simply does not provide.
The bottom line is very simple. For as long as the United Kingdom is a party to the ECHR, its freedom as a matter of (international) law is constrained by that instrument and by the way in which the Strasbourg Court interprets it. None of this is to suggest that either the Strasbourg Court or the Human Rights Act is perfect. There are undoubtedly aspects of the former (such section 6, which concerns the scope of the Act) that could usefully be changed or clarified; and it is widely recognized that the Court (including the way in which judges are appointed to it) is in need of institutional reform. However, the suggestion which is (at least implicitly) made by those HRA-sceptics who advocate a British Bill of Rights—that the adoption of such an instrument would open up an opportunity for rebalancing rights and ‘responsibilities’, or for greater trading off of individuals’ rights against those of the ‘law-abiding majority’—is inaccurate. Significant latitude could be created only by withdrawing from the ECHR—a step which would carry legal complications of its own, and which would be reputationally devastating for the United Kingdom.
And there is, of course, a bigger point that lurks beneath all of this. Those who put their faith either in legislative reform or in the pursuit of nuclear options such as withdrawal from the ECHR implicitly assume that the political branches ultimately have sole control in this area. Given the development of the notion of common law constitutionalism, and certain judges’ strikingly robust remarks about the legal fundamentality of certain constitutional rights and values, that assumption is a somewhat naïve one. But that is an issue for another day.
Mark Elliott is a Fellow of St. Catharine’s College and a Senior Lecturer in Law at Cambridge University.