UK Constitutional Law Association

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Joshua Braver: Counter-Interpretation, Constitutional Design, and the Right to Family Life: How the Conservatives Learned to Stop Worrying and Love the HRA (Briefly)

Joshua BraverUK Conservatives and the right wing papers continue to denounce the Human Rights Act (HRA).  Recognizing that the HRA is in crisis, some of its supporters have proposed new education efforts and some have even supported a rebranding in the form of a new Bill of Rights essentially similar to the HRA.  Both these arguments support the position that structural change is unnecessary.  The problem is perception, not the HRA itself.  Opponents are either irrational, misinformed or both.  The irrational, motivated by xeno and europhobia, maliciously spreads outright lies.  The misled, after reading salacious stories in the Telegraph and in the Daily Mail, are enraged that the HRA enables terrorism and also prevents the deportation of illegal immigrants who have committed horrible crimes.

No doubt absurd misunderstandings about the HRA are rampant.  But I will to argue that they and the HRA’s legitimacy deficit are derivative of a deeper structural problem, specifically the HRA’s intermediate constitutional status.  The HRA is neither ordinary nor higher law.  This intermediate status was designed to empower the judiciary to protect rights, but still prevent its domination over political issues.  Parliament too would play a substantive role in the interpretation of rights, and Parliament’s last word over the law was preserved. Ironically, even though it has the formal power to ignore court decisions, so far Parliament has almost always implemented the court’s incompatibility declarations.   My argument is that both the legitimacy deficit of and judicial domination over the HRA can be traced back to its peculiar middling status.  In conflicts between legislatures and courts, constitutional supremacy is a necessary condition for the democratization of rights.  I call this democratization, “counter-interpretation”, which occurs when a legislature interprets constitutional rights independently of and sometimes in conflict with the court.  I illustrate my thesis with the conflict between the courts and Home Secretary Theresa May over the right to family life in 2011 and 2012.  In it, a brief period of de-facto constitutional supremacy led to counter-interpretation; the Conservative party that led the opposition to the HRA briefly invoked it to support their stance on reducing illegal immigration.

General Rights Disagreement, Counter-Interpretation and Constitutional Supremacy

This is a thesis about discourse.  When fighting against a court, parliaments can wield two different languages.  The first is general rights disagreement.  Both the court and Parliament value rights, but disagree over which set of rights are valid.  For example, the UK Parliament asserts a right to violate the HRA because its rights are alien to the English tradition.  By attacking the court, it stands up for traditional English civil liberties.  As David Cameron stated, before he became Prime Minister, “In many ways the Government has a choice between this country’s ancient rights of habeas corpus and the right not be detained without trial; between Magna Carta and the ECHR.”

The second language is counter-interpretation.  The parliament disagrees, not with the right, but with the judge’s interpretation of the right.  Counter-interpretation legitimates constitutional rights because all parties are wielding it.

In this battle over constitutional meaning, the odds are stacked against the legislature.  Courts are more popular, focused, and wield superior expertise. For these reasons, we should not be surprised that the UK Parliament has almost always declined to counter-interpret.  Instead, conservative opponents of court decisions condemn the HRA as “the world’s worst law” and a “charter for terrorists, perverts, malcontents and illegal immigrants.”

However, constitutional supremacy can restructure the incentives.  The intermediate status of the HRA offers both counter-interpretation and general rights disagreement.  By contrast, in the U.S., constitutional supremacy removes the option of general rights disagreement.      The Constitution proclaims itself the “Supreme Law of the Land”, and each officer must take an oath to it.  It is the only language of legitimation.  If the legislature disagrees with the court, its only way to fight back is to counter-interpret.

Hence, counter-interpretation is and has always been prominent in U.S. constitutional history.  Despite extensive and intense opposition to ratification of the Constitution, counter-interpretation began very quickly.  Those who opposed the Constitution now called upon it, claiming to understand it better than those who wrote it.  Jefferson, Madison, Jackson, Lincoln and Franklin Roosevelt all asserted the President’s right to interpret the Constitution independently of and in conflict with the courts.  Prominent activists, such as Frederick Douglass and Susan B. Anthony denounced Supreme Court doctrine as invalid because it violated the people’s understanding of its own highest law.  Without addressing counter-interpretation, one cannot understand the U.S.’ most important moments of constitutional and political change.  This tradition continues today in battles over the meaning of free speech, religious freedom, and abortion.

UK De-facto Constitutional Supremacy

In the UK, through a quirk of coalition politics, we have a natural experiment providing substantial evidence that constitutional supremacy would encourage counter-interpretation of the HRA.  We can view the changes in counter-interpretation in the UK before de-facto constitutional supremacy, during it, and after it fades.  During de-facto constitutional supremacy, conservative counter-interpretation was robust.  As the coalition weakened so too did counter-interpretation leaving the conservative party torn over how best to fight back against the judiciary.

De-facto constitutional supremacy resulted from coalition government. In the 2010 election, the Conservative Party campaigned to “scrap” the HRA, but they were unable to fulfill this pledge because the election produced a hung parliament.  Six days after the election, on May 12th, 2010, The Conservative and Liberal parties formed a coalition government.  Very early into the Coalition, Nick Clegg warned that “any government would tamper with the HRA at its peril.”  In contrast to the Conservative pledge to scrap the Human Rights Act, the Coalition agreement promised a Commission on a UK Bill of Rights that “builds on all our obligations under the European Convention on Human Rights” and also “ensures that these rights continue to be enshrined in British law.”

Coalition policy and discourse was premised on the idea that compliance with the Human Rights Act was mandatory.  Politics granted what law had not.  By law, Parliament could repeal or ignore the HRA; it had an intermediate status subordinate to the Parliament’s supremacy.  However, coalition politics forced the government to treat the HRA as supreme and binding on all parties.  When controversy arose, the Conservatives in government could no longer trample on the HRA.  At the very least, the option of repeal was off the table.  Conservatives would have to find new ways to express their outrage and alter the constitutional policy.  In the case of the Right to Family Life, that new way was counter-interpretation.

On October 14th, 2011, Home Secretary Theresa May promised to introduce new executive rules to reduce immigration at the Conservative Party Conference.  The speech is infamous for the claim that a deportation was prevented because the immigrant had a pet cat.  Little-noted is that May began to shift from the language of general rights disagreement to that of counter-interpretation.  May stated that the new immigration rules would “ensure that the misinterpretation“ of Article 8 of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.”  The problem is not Article 8 itself, but the “British courts” who have interpreted “the right to a family life as an almost absolute right.”  However, the draftsmen intended and the wording indicates that the right is limited: “The meaning of Article 8 should no longer be perverted.”  May would promulgate new executive immigration rules that would reflect the correct interpretation of Article 8 so that when foreign nationals “should be removed, they will be removed.”

On June 19th, 2012, May laid a resolution before the House of Commons to endorse the new immigration rules:

That this House supports the Government in recognizing that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.

May explained that “Parliament had never before been given the opportunity to set out” the meaning of Article 8.  Judges have had to decide the meaning “in each and every individual case, and without the benefit of the views of Parliament.”  The new immigration rules take into account Article 8 and the relevant case law.  It is “in complete compliance with the principles of human rights.”  May emphasized that according to the Convention and the HRA, the right to family life is a limited one.  It must be balanced against the prevention of crime and the UK’s economic well-being.  The problem was that in the balances, judges had given insufficient weight to the public interest.  The Immigration rules clarified the appropriate weigh for judges to balance these competing interests.  Judges would no longer conduct a separate analysis outside the immigration rules, but rather apply the immigration rules to test whether there was an Article 8 violation.

At the end of January 2013, in Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC), the Upper Tribunal of the Immigration and Asylum Chamber refused to defer May’s counter-interpretation because “the rules are those of the Secretary of State not Parliament.”  While Parliament and its statutes are supreme, the executive and its rules are subordinate.  Unlike a statute, May’s rules had not passed through both houses of Parliament.  Even more importantly, Parliament had not given the rules the same scrutiny as they would a statute.  “Only the parliamentary process for” a statute “permits a clause by clause discussion of the measures, with opportunity for amendment and revision.”

In response to and about two weeks after the Izuazu decision, Theresa May pledged to meet the court’s criticisms by introducing a statute to ensure “that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported.”  In an editorial in the Daily Mail, May reaffirmed that the immigration rules had correctly interpreted Article 8:

This is not a dispute about respect for human rights, which I certainly agree is an essential part of any decent legal system.  It is about how to balance rights against each other: in particular, the individual’s right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals.

Furthermore, May lamented that judges’ activism damaged the “notion of human rights” and its prestige among the public: “in the popular imagination, ‘human rights’ are wrongly, but perhaps understandably becoming synonymous with legal dodges that allow criminals to escape proper punishment and to continue to prey on the public.”

The court still stuck to its guns.  Several months after May’s speech, in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the UK Court of Appeal again thwarted May.  The Court differed with the “form but not the substance” of the lower court decision and the Izuazu approach.  Rather than directly clash with Theresa May, the Court of Appeal interpreted the immigration rules to conform to and confirm its pre-existing Article 8 jurisprudence.  According to the Court, May did not want to bend judges to her will, but rather she would accommodate the well-established case law. (I plan to discuss this case further in a subsequent post).  On the surface the court agreed with May, but for practical and immediate purposes the court had almost completely refused to change its approach to Article 8.

At the beginning of 2013, ties between the Liberals and Conservatives were severely strained.  Both sides felt betrayed by the other for not showing full support over key issues.  Conservative backbenchers revolted against the Liberal’s and the Government’s bill to reform the House of Lords.  In retaliation, Liberals refused to support boundary reforms that would have increased the likelihood of future Conservative electoral victories.

In the midst of this strain, on Feb. 28th, 2013, a special election was held in Easterleigh. In the previous election, the Liberal Democratic candidate had narrowly beaten his Conservative opponent.  Conservatives had targeted the constituency as a potential gain for the party, as they had just narrowly lost the seat to the Liberal Democrats in the last election.  The race risked exacerbating tensions within the coalition.  The Liberal Democrats won the seat.  It was a dramatic and painful loss for the Conservatives whose candidate came in third behind the UK Independent Party (UKIP), a radically right wing populist party.  It was UKIP’s best electoral performance to date.

Many conservative backbenchers interpreted the election as a warning that their party should not compromise their values to retain the coalition.  UKIP’s victory signaled that the Conservative party must move right to retain its core supporters.  They should take tough stances on crime, immigration and Europe. It also stirred up the beginnings of competition over the party leadership.  Anticipating that Cameron might lose the next election, MPs began to position themselves to replace him.

Less than a week after the Easterleigh election, there was a small flurry of prominent MP proposals concerning the HRA and the ECHR.  The Sunday telegraph reported that the Justice Secretary “‘cannot conceive of a situation where a Tory majority administration would not repeal Labour’s legislation.”  Despite having called for counter-interpretation a few weeks before, May now proposed including in the manifesto an option to withdraw from the European Court of Human Rights altogether.  More recently at the Conservative Party Conference in late September, multiple speakers denounced the HRA, and May promised that “the next conservative manifesto will scrap the Human Rights Act.”  As the coalition’s unity waned, the HRA was no longer treated as supreme.  As the de facto supremacy of the HRA faded, conservative politicians shifted back to the language of general rights disagreement.  Rather than counter-interpret the HRA, they began to call for an exit from it.

Yet, constitutional supremacy still lingers on and so too with it some gasps of counter-interpretation.  On October 22nd, May made good on her promise to introduce a statute codifying her severe interpretation of Article 8 and demanded that judges’ defer to it.  The codification was but one of many measures in the bill designed to reduce illegal immigration, so it received limited attention by May and Parliament in the second reading.  Nonetheless, May again counter-interpreted.  She condemned judges who had ignored Parliament’s opinion, as embodied in the previous immigration rules, on the balance between the right to family life and the public interest.  “This Bill will require the courts to put the public interest at the heart of their decisions.”  The Bill passed overwhelmingly with support from all parties.

Notably, unlike her previous 2011 immigration rules speech in the House of Commons and her February editorial in the Daily Mail, May did not explicitly affirm the validity of Article 8, human rights or the UK judiciary.  This may simply reflect the fact that this time May have limited time to address HRA issues.  Alternatively, the waning of constitutional supremacy may have freed May from paying tribute to what she truly opposed.

The Conservative Party approach to the HRA is now schizophrenically split between two modes.  When trying to govern and create policy that will address the problem of blocked deportation, it counter-interprets.  Since Conservatives lack the votes to repeal the HRA, it can only satisfy its constituents’ demands for solutions to the blocked deportation problem by trying to work within the HRA.  On the other hand, when the party is in campaign mode looking ahead to the election, its language returns to general rights disagreement.  It anticipates the regaining of a majority in government that will have the power to repeal the HRA.

Conclusion

The legitimacy problem of the HRA is not a result of its content, but its structure.  Rights should be supreme over both judges and Parliament.  The HRA gave Parliament the means to assert the final word on the validity of law, but it has failed to structure incentives so this power is wielded on behalf of the rights in the HRA.  Constitutional supremacy would direct the UK Parliament and Conservatives to counter-interpret the HRA rather than trample upon it.  Counter-interpretation is both a good in its own right, and a means to create public ownership over constitutional rights.

What would this supremacy look like?  I can only give a brief sketch here, but I think there are three important features.  First, the text should include a constitutional supremacy clause i.e., but also reserve to Parliament the final word over the meaning of constitutional rights.  Second, to overturn a court ruling Parliament must prove that its actions express a counter-interpretation rather than a derogation of the right.  A variety of mechanisms are possible, but it may include requiring Parliament to have a full and open debate if it wishes to refuse to comply with a court ruling.  That debate should be informed by the work of the Joint Committee of Human Rights, but that Committee would be redesigned to express its own opinion on the HRA rather than echoing judicial doctrine.  Lastly, overturning the new Bill of Rights should require a substantial supermajority in Parliament.  This would discourage political parties from running on overturning the document and redirect their energies towards ensuring that its interpretation fits with their own political commitments.

There are no simple fixes or easy answers in constitutional design, especially in its relationship to constitutional discourse and legitimacy.  No one variable ensures success.  But Theresa’s May’s brief flirtation with counter-interpretation is testament to the great power of constitutional supremacy.  The UK ignores the lesson at its peril.

Joshua Braver holds a J.D. from Yale Law School and is a Ph.D. student in Yale Political Science.

Suggested citation: J. Braver, ‘Counter-Interpretation, Constitutional Design, and the Right to Family Life:  How the Conservatives Learned to Stop Worrying and Love the HRA (Briefly)’ UK Const. L. Blog (6 January 2014) (available at https://ukconstitutionallaw.org/blog/).

2 comments on “Joshua Braver: Counter-Interpretation, Constitutional Design, and the Right to Family Life: How the Conservatives Learned to Stop Worrying and Love the HRA (Briefly)

  1. angela ellis-jones
    January 6, 2014

    I would have hoped that someone lucky enough to be allowed to post on this site would have got right a basic fact like the correct name of the constituency ‘Eastleigh’,NOT Easterleigh!

    You may think that reports in the Mail and the Telegraph are ‘salacious’ simply because they disturb your cherished liberal prejudices.The real question is: are they true? Have you checked them?

    ‘severe’ interpretation of art 8 – is this a derogatory way of referring to an interpretation that protects the British people against those who wish to destroy them or sponge off them,or whose presence in our country is in other ways ‘not conducive to the public good,’ as the law in a more rational and less sentimental age put it?

  2. Pingback: Rule of Law v National Security: The Big Fight Live – News4Security

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