Gavin Phillipson: Constitutional Principles and the Human Rights Act: Moving Beyond One-Way Street Approaches

 I’ve been thinking recently about the relationship of the Human Rights Act with the existing principles of the UK constitution – themselves not always easy to pin down or agree upon of course. I realise that I’d unconsciously taken the view, in some of my previous writings, that this relationship operated as a basically one-way street: it was about, and only about, how far the HRA transformed the existing constitution. And as one of the enthusiasts for the HRA, I’d been eager to argue for that effect to be of maximum possible extent.  But increasingly recently I’ve been wondering – and have started to write about – the opposite question: how far the HRA itself must be read in the light of pre-existing constitutional principles. And my thought so far is that this question not only tends open up what we might crudely call a ‘legal v political constitutionalism’ divide in scholarship, but that it poses something of a paradox for that divide too.

Under the traditional UK constitution, the key principles were the political accountability of the Executive branch to Parliament, and of the sovereign Parliament to the people, while the judges were confined to a modest role in policing a narrow, formal conception of the view of law, in the shadow of parliamentary supremacy. So how far has the HRA changed this? A very large question of course, not to be tackled in a single article, let alone a single blog post, but what I want to point out here is how approaches to this question – including how it is posed – cannot help but fall into – or open up – the legal-political constitutionalism divide I’ve mentioned. I think we can sketch two basic contrasting views, which of course bear directly upon not only a range of specific interpretive issues raised by the HRA, but also the assessment of the overall significance of the Act. These interpretive issues, all of which are keenly contested, include in particular, (a) the role of judicial deference in reviewing decisions of the elected branches, (b) the extent to which the courts can re-define the meaning of legislation to conform with the Convention rights, and (c) how far courts have an obligation to develop protection for those rights even in the sphere of private common law (the ’horizontal effect’ debate). But the difference between the two views is not simply the different answers they give to these specific questions, although they do tend to give different ones; from it also follows two sharply opposing analytical perspectives through which the interface between the HRA and traditional constitutional principles is itself approached. (Before going any further I must add the rider that these two contrasting approaches are relatively crudely sketched here and that there are many important nuances I would have acknowledged (at least in footnotes!) are thereby glossed over. In particular, some judges and scholars have taken rather minimal readings of the HRA seemingly for ‘small c conservative’, rather than political constitutionalist reasons) .

Under the first view, associated with the school referred to variously ‘as liberal normativists’ or ‘legal constitutionalists’, the HRA amounts to a hugely significant re-orientation of the UK constitution away from its traditional majoritarian basis. On this view, the HRA, despite its relative weakness as a merely statutory ‘Bill of Rights’, formally subject by its provision to parliamentary supremacy, marks a signal change in the judges’  previous ‘procedural’ role, and a major re-balancing of the three arms of government in favour of the judiciary. In turn, under this view, the interpretation of the HRA itself should be driven by the overriding objectives of ensuring maximal protection for, and further development of, the Convention rights and be strongly informed by the Convention’s implicit requirement that questions concerning rights are primarily for judicial determination, as they are at Strasbourg.

It is well known that, particularly in relation to the three interpretive issues mentioned above, the Act allows for a degree of judicial choice between the use of what may be crudely termed its ‘pro-rights’ provisions (s 6(1), 3(1) in particular) and  its ‘pro-majoritarian’ aspects (s 6(2), 3(2)) and 4) – and thus gives rise to a sliding scale of judicial power. Under the rights-driven interpretative approach, the dial of judicial power is generally turned to the maximum. The result is that the judicial role becomes elevated to such an extent as to give rise to what has been referred to as a ‘bi-polar sovereignty’, with the rule of law and protection of fundamental rights given equal or near-equal status with the supremacy of Parliament to which they were previously so firmly subordinated. Under this view, then, the HRA plays a major road in re-conceptualising – even transforming – the UK constitution.

In sharp contrast, under the second view, associated with the ‘political constitutionalist’ school, the HRA has a much narrower role and a primarily practical one: it is there simply to give British citizens access, in domestic courts, to the rights that previously only Strasbourg could enforce. In turn this means that, when assessing and interpreting the HRA, instead of asking how far the Act should change our view of the constitution, such a view instead assumes that traditional constitutional principles must shape our view of the HRA. Such views tend to stress the continuing operation of what can be termed ‘the constitutional constraint’ on judges, represented by the separation of powers and the primacy of Parliament’s democratic role. Under this view, the courts must grant considerable deference to the elected branches of government, continue to develop the common law only incrementally, and take particular care to ensure that ‘interpretation’ of legislation never tips over into effectively re-writing it.  Conor Gearty has been particularly active in arguing for this viewpoint.

While remaining broadly on the ‘legal’ rather than ‘political’ shores of constitutional scholarship, I have started to perceive more of a need to consider the ‘fit’ of the HRA within the existing constitution, particularly where its provisions are ambiguous. For example, in a forthcoming article with my colleague Alex Williams at Durham, ‘Horizontal Effect and the Constitutional Constraint’ (MLR, 2011), we argue that the horizontal effect puzzled posed by the HRA cannot ultimately be solved simply by consideration of the provisions of the Act itself or even of the Convention rights. Rather, given the paradox set up by section 6(1) and (3)’s inclusion of judges within those public authorities bound to act compatibly with the Convention rights taken together with the Act’s presumably deliberate silence on private law and common law, we must turn to existing constitutional principles governing the role of the judiciary, which (we argue) provide the ‘constitutional constraint’ of incrementalism; this supplies the necessary definition of and limitation upon the judicial role in developing common law compatibly with the Convention rights.

Of course, in the end, either view is incomplete on its own.  To focus only on how the HRA changes the constitution misses the inevitable question of how far the constitution governs how we approach the HRA in the first place. But, equally, to argue that interpretation of the HRA’s provisions must be governed by traditional principles is a very partial view: first it leads one into the kind of doctrinal messes we’ve seen when judges have tried to water the section 6(1) head of judicial review down into a muddled kind of heightened Wednesbury; but second, of course, going too far in reading down the plain terms of the HRA – an Act of Parliament – risks disrespect to Parliament’s sovereignty – the first principle of the traditional constitution.  And this leads us to the possible paradox I mentioned at the beginning of this essay. Those who, through interpretation of the HRA, seek to turn down its dial of judicial power are in the end appealing to principles of the UK constitution – the separation of powers, and a particular view of parliamentary democracy – and asserting that Parliament cannot change these things; rather, legislation like the HRA which seemingly seeks to do so finds itself in turn simply re-interpreted by those principles. (An example would be the way that their Lordships in Bellinger read the limits of the interpretative obligation imposed by section 3(1) HRA in the light of the limits to the judicial role prescribed by the constitutional background as they saw it).  The paradox I sense, then, goes something like this: enthusiasts for the Act – ‘true blue Convention lawyers’ as Gearty once dubbed us – essentially rely on parliamentary sovereignty in order to assert that Parliament can, and has, transformed the traditional constitution through enacting the HRA – and yet are often not major fans of that doctrine. Conversely, those ‘political constitutionalists’ who resist such an expansive reading of the Act’s constitutional significance seem to rely in doing so on Parliament’s inability to change certain constitutional fundamentals; and yet it is the political constitutionalists who, broadly speaking, are most supportive of a traditional view of parliamentary sovereignty, under which any and every principle other than the basic sovereignty of parliament itself is open to change by Parliament. I can think of various possible ways of debunking this seeming paradox myself but am eager to see what readers have to say.

It seems obvious that the solution to the polarity of the ‘two views’ on this issue I’ve sketched above is a more sophisticated reading of the relationship I’m considering, whereby the HRA is both interpreted through existing constitutional principle while viewed as simultaneously starting to change those principles over time. It certainly seems to me that one’s overall constitutional leanings are always going to condition how one perceives the relative balance between those two contradictory tendencies. In the absence of a formal mechanism for constitutional change in the UK, analysing and justifying the process and direction of such change is always going to be a murky and contested business.

Gavin Phillipson is Professor of Law at the University of Durham. Some of the above thoughts will be fleshed out in a forthcoming chapter in Leigh and Masterman, The UK’s Statutory Bill of Rights:  Constitutional and Comparative Perspectives (2012, British Academy).