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Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Graham Gee, Senior Lecturer at the University of Birmingham, and Dr Grégoire Webber, Canada Research Chair in Public Law and Philosophy of Law at Queen’s University. You can read the other contributions in this series here. Posts on the topic are welcome.
The animated debate over the future of the Human Rights Act is, in many respects, a sign of a flourishing democracy and a widely shared commitment to human rights and the rule of law. The Government’s manifesto commitment to repeal the HRA and to replace it with a British Bill of Rights has prompted a lively debate within and beyond political and legal circles. We celebrate this. Although not agreeing with many of the claims made by the Act’s supporters, we welcome reasoned, informed, and passionate defences of the status quo, and indeed have learned a great deal from them. (See for example, Mark Elliot’s measured analyses here, here and here). At the same time, the debate—especially amongst academic lawyers—risks losing perspective and becoming so frenzied as to make it difficult for the case for reform to get a fair hearing. (For a notable exception, see Aileen McHarg’s piece in the aftermath of the election.)
The debates that we have in mind are not only the more considered musings that fill the pages of law journals or posts on blogs such as this, but also more informal debates on social media, in opinion pieces as well as the casual conversations occurring in corridors of law schools up and down the country. As we see it, there is the danger of a one-sided conventional wisdom taking root. It is true that conventional wisdom is sometimes conventional because it is wise, but even then it ought to remain open to challenge and question. In this spirit, we commend the editors of this blog for making a concerted effort to invite colleagues with a range of viewpoints to contribute to this series on the HRA. In this post, we set out some of our concerns about some aspects of the current debate about the HRA.
Making the Case for Reform, Repeal, and Withdrawal
We agree with defenders of the status quo that the case for the reform and repeal of the HRA (and the possibility of withdrawal from the ECHR) has not been well made. Some of the fault rests with political actors who have argued for repeal or reform with arguments too closely cast in reaction to an unwelcome Strasbourg or domestic judgment or in a manner otherwise liable to easy rejoinder. Some of the fault also rests with think-tanks and research institutes, which have played an important role in developing constitutional reform proposals over the last twenty-five years, but which have been slow to address concerns that cross party lines about the HRA. There is plenty of fault to go around, however, and some of it lies with the failure of legal academics sympathetic to aspects of the case for reform, replacement, or repeal to lay the necessary intellectual groundwork.
This failure is all the more notable because the support of legal actors, including academics, is an important factor in refashioning the constitution along more juridical lines. Their arguments have emboldened significant sections of judicial thought. It is less clear to us that those opposed to an expanded judicial role have exerted a similar sort of influence on judicial or political thought, and this despite the opportunity presented by a sizable number of politicians’ concerns about the HRA, the ECHR, and the Strasbourg Court.
There are several possible explanations for this. Some academics might not be aligned with the government of the day, might have thought the prospect of a majority Conservative government far-fetched, with repeal of the HRA a likely casualty of any coalition negotiations, or might share concerns about the HRA but fear that a British Bill of Rights will be just as bad and possibly worse. We also suspect that there are some who share very real concerns about the HRA, and yet have come to accept the legal orthodoxy that the HRA is an untouchable part of the UK’s constitutional arrangements or, rather more worrisome, an orthodoxy in academic thought that one challenges at one’s peril.
One of the consequences of the failure to make a strong intellectual case for reform is that it has allowed for “myth-busters” to present the view that the only myths in need of busting are those made by politicians opposed to the HRA. Without doubt, there are anti-HRA myths in need of busting, with the “illegal immigrant’s pet cat” perhaps the best example. There are also pro-HRA myths in need of correcting, although one will not find them confronted on a webpage devoted to providing “human rights information” to inform reasoned debate.
One such “myth” implies that to question the HRA is to be sceptical of human rights. This is sometimes captured by the rhetorical questions: Which one of the rights in the ECHR would you remove? and Which of the judgments of the Strasbourg Court would you undo? Contrary to what is implied by these questions, there is a rich debate about how best to protect rights. In the academic arena, one of the features of this debate is the general recognition that court sceptics are not rights sceptics.
This same recognition does not readily carry across to academic views on the political arena. Some academic discussion sometimes reduces the political case against the HRA to an expression of a narrow-minded fear of prisoners, rapists, immigrants, and terrorists, not to mention foreign judges. That the political case against the HRA builds, in part, on enduring debate about a tension between democratic self-rule and gouvernement des juges often seems to get short shrift.
With some justification, supporters of the HRA are often quick to highlight the sometimes over-wrought, out-of-proportion criticisms that politicians have made of the HRA, the ECHR, and individual decisions of the Strasbourg and domestic courts. These political criticisms at times verge on the hysterical. It strikes us that something similar can be said of some of the claims made by some of the HRA’s supporters. Observers of the debate would be forgiven for thinking that human rights in the UK can only be guaranteed by the HRA, rather than through a patchwork of ordinary legislation subject to the ordinary rules of statutory interpretation together with the traditional workings of the common law. Some of the commentary loses sight of the fact that the HRA is, in the final analysis, positive law in respect of which there might be scope for improvement. Even more alarmist are the suggestions that HRA repeal or withdrawal from the ECHR would render the UK a human rights backwater. Consider the invitation that is sometimes made to likening a post-withdrawal UK to Belarus because both would be non-members of the Convention, an analogy about as serious as likening present-day UK to Russia merely because both are members of the Convention. Human rights records do not stand or fall on membership in the Council of Europe.
Taking a longer view, it is staggering that the possibility of repealing the HRA and returning to the position in 2000 should cause such consternation. Rather lost in the debate is the fact that it is possible for countries with long and rich traditions of democracy and the rule of law under a Westminster system to manage without a judicially enforced bill of rights (Australia) or with a much weaker statutory bill of rights (New Zealand) or without supervision by an international court (e.g. Australia, Canada, New Zealand).
In our view, academic engagement in public debate must preserve an openness to unconventional arguments. There is a proud contrarian and devil’s advocate tradition in academic circles, where the intellectual intimacy that arises from ongoing exchange encourages ideas to be tested and to stand or fall on their merits rather than on their popularity. In this respect, academics should be especially wary of any inclination to groupthink that could derail our collective capacity to maintain a forum for intelligent thought. That one would vote against a proposal in a referendum or in the legislature is not a reason to dismiss it as unthinkable or as beyond the bounds of acceptable academic discourse.
In this light, we question the dismissive references to the Government’s plan resting on a “paper thin” Commons majority and on only 37% of the votes cast at the election. Insofar as one wishes to engage in this sort of reasoning, it should be noted that it neglects the fact that momentous constitutional change has been introduced on slimmer parliamentary majorities (e.g. the second reading vote on what became the European Communities Act 1972). It also understates the level of votes cast for parties supportive of either repeal or reform of the HRA (i.e. votes for the Tories, UKIP and DUP combined achieve just over 50%). We express some surprise, too, at the rather over-eager attempts to articulate some novel obstacles to repeal (e.g. creative readings of the Salisbury Convention).
We worry that some patterns in the current debate about the HRA close down rather than open up the scope for good faith argument. There are important questions to consider about the possibilities for retaining or repealing, reforming or replacing the HRA as well as whether to remain in or withdraw from the ECHR. The devolutionary dimensions of HRA reform are real and important; the workings of ss. 3 and 4 of the Act are in need of re-evaluation after more than a decade of shaping the relationship between courts and Parliament; and the role of domestic courts in breaking with Strasbourg precedent is in need of careful treatment. These and others are questions about which people can and do reasonably disagree. That disagreement is best approached in a climate that fosters open and free contributions.
Graham Gee is a Senior Lecturer at the University of Birmingham.
Grégoire Webber is Canada Research Chair in Public Law and Philosophy of Law at Queen’s University and a Visiting Senior Fellow at the London School of Economics.
(Suggested citation: G. Gee and G. Webber, ‘HRA Watch: Reform, Repeal, Replace? Conventional Wisdom and the Human Rights Act’ UK Const. L. Blog, 15th Jun 2015 (available at http://ukconstitutionallaw.org))