affiliated to the International Association of Constitutional Law
This blog picks up on Nicholas Barber’s blog of September 11, 2011. There he sketched the complicated options for taking a human rights case with respect to the Human Rights Act, the European Convention on Human Rights and the European Court of Justice. He opined: whilst one bill of rights shows caution, three suggests panic.’
In this blog I examine the complications of the similar ‘disorder of legal orders’ (to use Neil Walker’s great phrase), emerging on the domestic rights front. A stochastic set of Bill of Rights initiatives and Human Rights Act devolution dilemmas are driving multiple processes of reform in different directions, towards a wonderfully chaotic panoply of unintended consequences.
From three to eight?
Within the UK three Bills of Rights processes are in train, in addition to Nicholas Barber’s three.
4. A Northern Ireland Bill of Rights. The Belfast / Good Friday Agreement provided for a bill of rights in Westminster legislation providing for ‘rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.’ (See further, advice given by Northern Ireland Human Rights Commission and post by Colin Harvey earlier this year).
5. An all-Ireland Charter of Rights. This was to be considered in a joint initiative of the Northern Irish and Republic of Ireland Human Rights Commissions as also required by the Belfast/Good Friday Agreement, and underwritten by a British-Irish Treaty, although little progress has been made.
6. A UK Bill of Rights. As provided for by the coalition government, a Commission has been tasked with investigating a UK Bill of Rights with terms of reference that are remarkably similar to the NI Bill of Rights process namely, to fashion ‘add-ons’ to the ECHR to form a UK Bill of Rights. (And without complicating things too much, even should this come to nothing AXA General Insurance Limited and others v The Lord Advocate and others (Scotland),  UKSC 46 offers the prospect of building ‘rule of law’ judicial review which, in theory, could begin re-incorporating a range of rights were the HRA dismantled see Adam Tomkins’ blog on the case.)
7. Scottish Rights for Scotland. Regarding a seventh rights framework, we could further add the outcome of a process, one suspects still to run, in Scotland, regarding when and how rights frameworks should apply in this devolved context. The Scottish Human Rights Commission talk of a ‘National Human Rights Action Plan’ rather than a bill of rights (and opposes a UK Bill of Rights, preferring the Human Rights Act). Meanwhile, the Scottish government has focused serious and sustained attention on how to limit the UK Supreme Court’s HRA review of criminal cases – this jurisdiction having resulted as anomalous by-product of the shift of Privy Council ultra vires jurisdiction to the UK Supreme Court (see Walker Report 2010, Advocate General Expert Group Report 2010, McCluskey Report 2011, and Scotland Bill). At present proposals are limited to a new appeals mechanism involving a reference procedure for cases involving convention rights, but underlying this reform lurks continuing pressure for a distinctive Scottish human rights regime policed by Scottish courts. Such impetus is likely to be galvanized if – as they must – UK Bill of Rights proposals require amendment of the Scotland Act 1998 (where the definition of ultra vires incorporates the Human Rights Act). SNP rhetoric with reference to the UK Supreme Court decision of Cadder v Her Majesty’s Advocate  UKSC 43 appears to lean towards mediating and limiting the direct application of European Court of Human Rights’ jurisprudence in Scotland. However, SNP’s independence agenda suggests a more extensive rights regime to perhaps include socio-economic rights. Scotland’s devolved governments have repeatedly taken a different path to England and Wales with regard to socio-economic issues and the recently produced independence document of the SNP talks of new constitutional rights protection for Scotland and provides socio-economic commitments with a ‘rights’ flavour, all of which have relevance to ‘independence lite/devo-max’ outcomes as well as fully blown independence.
8. Welsh rights for Wales? For number eight we must turn to Wales where it is easy to imagine that with the Welsh Parliament which has recently increased its powers, moving towards its own bill of rights (see Liberal Democrat community bill of rights proposal), or national action plan for Wales. The equality duty in the Equality Act 2010 already has a distinctive Welsh dimension and indicates that devolved diversity in rights is already with us but where equality is concerned has managed to come in under the radar (Northern Ireland of course also having an already-differentiated equality duty, and conditioning the powers of the NI Assembly not just on the HRA but on equality).
Although I too paraphrase Oscar Wilde I should make it clear that I do not view bills of rights negatively. However, I would view as misfortune a single UK bill of rights, which watered down the Human Rights Act and negated ten years of Bill of Rights debate and a sensible proposal in Northern Ireland. And the UK Bill of Rights process does seem somewhat careless and unfortunate from whatever political point of view one comes from. Seized on by the Conservative Party apparently to limit judicially protected rights, to ‘get out’ of unpopular ECHR and HRA rulings, and perhaps even strengthen the (UK) union, the terms of reference they cobbled together in coalition contemplate extending EHCR rights and show little thought to devolution, much less any evaluation of whether a bill of rights process will be a force for unity or galvanize (already existing) commitments to devolved rights regimes. Were I an anti-HRA/ECHR conservative I would view such this result as very careless.
Plus, it all seems a quite careless anyway. The Commission is to consult on ‘which rights’, but not on process or enforcement; has a mandate and membership which ‘forgets’ devolution, does not mention or draw on expertise of identical devolved initiatives, and then tacks on a few devolved ‘advisors’ using a mysterious appointments process; apparently uses ‘polarized views on Bills of Rights’ as its key membership criteria; is given an almost non-existent website (buried as a section of the ‘Justice’ department); establishes a once-off time-limited written consultation process with no education dimension and little public purchase (despite lack of public ‘ownership’ being a key rationale for moving from the Human Rights Act, see Grieve); and manifests its divisions on its first, less controversial, task of advising the government on reforms to the European Court of Human Rights, where the Commission’s official advice was supplemented/counteracted by a letter to Ministers from the Chair, both of which were then unilaterally denounced in the press by one of the members (see UK Human Rights Blog). Whew.
Lost in this Bill of Rights mess, it is easy to miss the quite fundamental underlying negotiations that beget and sustain the mess. Two key negotiations in particular are worth noting.
Plural rights for constitutional pluralism, or rights hierarchy for a unitary state?
One submerged negotiation is over a unitary or pluralist conception of the UK current constitutional arrangements. For better or worse, the UK seems to be tracked into a process of incremental constitutional reform that includes on-going negotiation of devolution, and on-going negotiation of rights frameworks and the balance between legislature and judges at both national and devolved levels. It is unreaslistic to expect such a process to deliver order, a common rights framework, and a neat rights hierarchy from devolved regions and courts, to the ‘UK’ and the UK Supreme Court, all embraced by a ‘we the people’ consensus. The current ‘Bills of Rights’ debates are a by-product of incremental piece-meal reform, but also expose the limitations of such a process. It is difficult to draft ‘we the people’ documents and broker foundational political compromises as to centre v. periphery, legislatures v judges, through processes that pretend to be minor tinkering at the edges. We are indeed a big and complex society or even constellation of societies, and we need a ‘big conversation’.
Navigating the Universal and the Particular
The second negotiation is one over where and how universal human rights are best fashioned and applied. All efforts to implement international human rights standards into domestic law and practice involve an attempt to provide for a particular application of universal rights. The general wording of international human rights standards and the jurisprudence of their implementation bodies all leave considerable room for translating the universal into the particular. In the translation, however, arguments arise as to what constitutes ‘translation’ and what constitutes re-writing.
Underlying the debate as to where and how to protect rights as between European, UK-wide and devolved fora, is a political debate as to who it is will really uphold ‘universal values’ in a locally appropriate way, and who has an agenda to ‘particularize’ rights to their own imperialist/ partisan political image. Thus conservative politicians charge the ECHR as foreign and imperialist in terms of a European paradigm, and assert a UK Bill of Rights as a legitimate ‘more appropriate’ alternative. However, proponents of the HRA suspect a conservative particularist/imperialistproject at play in the UK Bill of Rights debate, and an attempt at ‘watering down’ or even jettisoning the ECHR for narrow political gain.
Meanwhile, the regions (and others) also charge the process as an imperialist conservative party and unionist project from an internal perspective; while attempts to construct differentiated regional rights provision are counter-alleged by the centre to be ‘too locally driven’, not ‘proper rights’, or not rights which can be delivered to devolved regions alone (see Labour government response to Northern Ireland Bill of Rights Advice). Behind these counter-charges lies the suggestion that devolved rights agendas also hide imperialist ambitions, this time of devolution nationalists.
Reframing the issue
So what do I say to this? First of all, I point it out to clarify debates. But to go further I suggest that the following are useful to bear in mind.
1. Attempted imposition of ‘neat’ rights hierarchies will not make the difficulties of ‘what rights, where?’ go away. What is is, and it would be a mistake to assume that a constitutional default position exists. Let’s embrace the negotiation which is an important one over where and how best to protect rights, and what the relationship is and should be between all the UK’s courts and legislatures. If this is the debate let us be honest and explicit about it rather than pretending it can be ‘won’ by setting up or running a circumscribed process.
2. We can never assume or take for granted who best protects and develops universal human rights. There is a tendency to think and argue that universality lies in a similar hierarchy to courts of appeal and legislatures themselves, and that we move from more particularized to more universal as we move from local, to national, to regional, to international legislatures and courts. However, international law makers, courts and tribunals can have their own agendas just as surely as national ones. While it is true that the expression of rights is likely to move from the more specific to the more generalized and abstract as we move from local to national to international, this does not necessarily equate to a movement from the particular to the universal.
3. Judges best win jurisdiction over issues by the ways in which they reason from the universal to the particular, rather than by asserting a place in a legal hierarchy. If local courts are to take themselves seriously and clamour for jurisdiction, they must show themselves capable of engaging with and reaching to universal values when they decide particular cases. There is a difference between local application of universal values, and ignoring those values or seeking to attenuate them. Similarly, international judges have most power to affect the implementation of rights where they take local context seriously. The universal and particular are linked – and a court’s legitimacy in the arena of rights often depends on how it frames its decision in terms of navigating between the two.
4. Most esoterically, but perhaps most importantly, the difficulty of navigating the universal and the particular is always with us. Translating the universal to the particular, and using the particular to build, apply, and even establish the universal is an eternal dialectic. Constant challenge and negotiation is less a problem, and more an important part of how we actually negotiate and come to understand values as universal in the first place.
5. Therefore we should be suspicious of a priori claims to the Universal as linked automatically to the ‘level’ of the rights initiative, and seek to understand how challenge and counter-challenge work. That is the end to which this blog has been written, and so I close.
Christine Bell is Professor of Constitutional Law at the University of Edinburgh.