On an orthodox approach, legislation of the UK Parliament is interpreted by courts, but not reviewed by them against legal standards. The Human Rights Act 1998 enables such review and empowers courts to declare Acts of Parliament in contravention of those standards. In so doing, it advances constitutionalism, in the sense of there being legal limits on governmental power (putting to one side other potential sources of limitation such as the now repealed European Communities Act 1972). However, there may be some tension between the balancing stage of the proportionality test applied in the adjudication of human rights violations and the position that the limits imposed by the Human Rights Act are “legal” in nature.

The UK government now proposes to repeal the Human Rights Act and replace it with a Bill of Rights. This post examines two aspects of the proposed Bill of Rights – the preservation of the declaration of incompatibility (clause 10) and the modification of balancing (clause 7) – through the lens of constitutionalism. The preservation of the declaration of incompatibility means that the form of constitutionalism under the Human Rights Act would continue, even though repeal of s 3 amounts to a significant change more generally. In respect of balancing, it is significant that the proposed Bill of Rights seems to reform the final stage of proportionality, an aspect of the test that sits uneasily with constitutionalism.

Declarations of incompatibility

On the usual understanding, constitutionalism means that the government (including the legislature) is legally limited in its powers. That is hard to square with an orthodox view of parliamentary sovereignty, or the idea that if legislation is passed validly by the UK Parliament, it has to be applied by the courts (even if procured by fraud). In a post on this blog about constitutionalism in the UK, Paolo Sandro refers to the line of cases on ouster clauses, beginning with Anisminic, as showing “a constructive method of statutory interpretation which allows [courts] to avoid open clashes with Parliament”. However, it might be questioned whether court decisions that creatively interpret ouster clauses, without declaring any transgression of a legal limit by the legislature, entail the imposition of legal limits on governmental power in the relevant sense. The same point can be made in respect of s 3 of the Human Rights Act.

The Human Rights Act, together with devolution, forms part of what Vernon Bogdanor has called a New British Constitution. Although the power in s 3 has proved important in practice, from the standpoint of constitutionalism the critical provision is s 4, as it allows courts to declare that legislation is incompatible with human rights. The declaration merely returns the matter to the political sphere for consideration – there is no power to strike down primary legislation, unlike, for example, under the US Constitution – but it is, on one view, sufficient for a kind of constitutionalism that there is review of primary legislation against legal standards that allows it to be determined to be incompatible with those standards. Indeed, the fact that there is no power to strike down legislation immunises the Human Rights Act against some concerns about judicial power in other systems. Thus, the UK model of constitutionalism under the Human Rights Act involves greater dialogue between the judicial and legislative branches than in those systems.

This analysis is supported by the UK Supreme Court’s controversial statement in the UNCRC Reference that the power to make declarations of incompatibility under s 4 of the Human Rights Act “qualifies” parliamentary sovereignty (at [50]). While the Court characterised declarations of incompatibility as generating “opprobrium” (at [52]), an authoritative declaration by the judicial branch that legislative action is incompatible with human rights seems to do even more than generate opprobrium; it constitutes, in substance, a powerful statement of the contravention of legal standards, despite the lack of a strike-down power (see s 4(6)(a)). That is so purely at the domestic level, without any involvement by the European Court of Human Rights, whose rulings are binding in international law under Article 46 of the European Convention on Human Rights (ECHR).

Subject to some notable dissents, constitutionalism is widely seen as desirable because it constrains the arbitrary exercise of power: it subjects the exercise of power by officials to legal standards and prevents overreach by those officials. Because lawmakers, as much as any other government officials, are capable of abuses, the idea is that they should not be exempted from such review. If there are only political controls on the exercise of power by Parliament – particularly in circumstances where the House of Commons is typically dominated by the governing party and the House of Lords can only delay, not veto, legislation – that creates the potential for abuse. In the circumstances of the UK system, with its comparatively few checks and balances, there is a good argument for subjecting exercises of governmental power, including those by the legislature, to legal limits.

That aspect of the Human Rights Act is one that would continue under the Bill of Rights, even as it appears to alter some human rights standards, and to make a significant change by repealing s 3. As with the Human Rights Act, the rights protected in Schedule 1 of the Bill of Rights are drawn from the ECHR, and declarations of incompatibility remain available under clause 10. That clause states that where “a court is satisfied that a provision of primary legislation is incompatible with a Convention right” then the “court may make a declaration that the provision is incompatible with the Convention right”. It may also do so where it is “satisfied that a provision of subordinate legislation is incompatible with a Convention right, and does not quash the provision, or declare it invalid, by reason of the incompatibility” (currently, under s 4 it is only possible to declare subordinate legislation incompatible where primary legislation prevents removal of the incompatibility).

Balancing

Although the Human Rights Act has been a positive development for constitutionalism in the UK – one that has offered a means of addressing arbitrary exercises of power by government officials, including lawmakers – there is another part to the story, and that is the use of proportionality by courts in assessing human rights claims. Specifically, it may be doubted whether the final balancing stage of proportionality (sometimes called balancing stricto sensu) is entirely consistent with an understanding of constitutionalism as entailing legal limits on governmental action. There is at least a tension between constitutionalism and proportionality because it is arguable that the limits imposed on governmental action by courts at the final balancing stage of proportionality are not legal in nature, but rather quasi-political due to the highly discretionary nature of the balancing that takes place.

The test of proportionality in the UK is set out by Lord Reed in Bank Mellat v Her Majesty’s Treasury (No 2) as follows:

it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

at [74].

Proportionality is a controversial test around the world, and has been criticized on a variety of grounds. One issue is that it stipulates a series of overlapping questions. Ariel Bendor and Tal Sela observe that it is akin to a matryoshka doll, “with each stage of the constitutional analysis containing all the preceding ones”, because a law could not pass the third stage if it could not pass the second, or the fourth if it could not pass the second and third (at 538). However, as they go on to explain (at 540-544), the main problem with proportionality is the balancing at its final stage, since the two things being balanced appear to be incommensurable: the severity of the measure’s effects and the importance of the objective. This is an apples to oranges comparison that, being apparently incoherent, seems to devolve into an exercise of pure discretion. Such a discretion is not stipulated by the text of the ECHR, which makes no reference to proportionality, referring merely to limitations on qualified rights “necessary in a democratic society” in respect of various aims.

Aharon Barak acknowledges in his detailed book that an alternative to proportionality is for courts to focus on comparing means and end. Although involving balancing of a certain kind, means-end analysis is different from the final stage of proportionality, which “does not examine the relation between the limiting law’s purpose and the means it takes to achieve it” but rather “examines the relation between the limiting law’s purpose and the constitutional right” (at 344). Means-end analysis is included as part of the proportionality test in its earlier stages, which, properly understood, are not susceptible to the same incommensurability objection as the final balancing stage. Given the difficulties with the final stage of proportionality in particular, it is not surprising that the Bill of Rights takes aim at it with clause 7, headed “Decisions that are properly made by Parliament”.

Clause 7 provides that where a court is “determining an incompatibility question in relation to a provision of an Act”, and “in order to determine that question, it is necessary to decide whether the effect of the provision (whether considered alone or with any other relevant provision or matter) on the way in which the Convention rights are secured strikes an appropriate balance – (i) as between different policy aims, (ii) as between different Convention rights, or (iii) as between the Convention rights of different persons”, or “as between any combination of matters mentioned in sub-paragraphs (i) to (iii)”, the court must “regard Parliament as having decided, in passing the Act, that the Act strikes an appropriate balance” and “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament”.

As Mark Elliott observes, this provision would not appear to have any impact on, for example, the third (necessity) stage of proportionality, since that stage does not involve balancing within the terms of the provision (to the extent that it involves a certain kind of balancing, it is between a policy aim and the means used to pursue it). However, the drafting seems to be drawn widely enough to capture the final stage of the Bank Mellat test (weighing “the severity of the measure’s effects on the rights of the persons to whom it applies” against “the importance of the objective”), since this balancing test could be viewed as balancing a “combination” of a “policy aim” and a “Convention right”. Clause 7 also addresses situations where Convention rights are weighed against each other, which might be thought not to pose the same incommensurability concern as comparing a right and a policy aim.

In view of the problem that the final stage of proportionality may involve an exercise of discretion that is potentially not legal in character, the question arises whether clause 7 would effectively constrain that discretion. The answer is not clear. On the one hand, the requirement to “give the greatest possible weight” to the “principle” that balancing decisions are “properly made by Parliament” – read together with the requirement to regard Parliament as having decided that an impugned Act strikes an “appropriate balance” – might be interpreted as curtailing courts’ ability to conduct their own balancing assessment at the final stage of proportionality. This curtailment might not be quite to the same extent as abolishing the final stage of proportionality altogether, though it could prove difficult in practice for courts to contradict Parliament’s judgment at that stage.

On the other hand, the provision could end up introducing new complexity by inviting courts to consider precisely how much weight is “possible” to give to the principle that it describes. Another possibility is that the provision is interpreted as merely requiring the kind of deference that courts already accord, depending on the issue in question. For example, in SC, the UK Supreme Court commented that “[t]he ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues” (at [161]). Though it would not seem to be what the government intends, courts might conceivably try to absorb clause 7 into this existing understanding of deference.

Conclusion

The attraction of constitutionalism lies in subjecting governmental action – including legislative action – to legal limits, and thereby constraining abuses of power. Due to the s 4 power under the Human Rights Act, courts assess legislation against human rights standards to prevent overreach by the UK Parliament and have the power to declare legislation incompatible with these standards. On one view, that amounts to a kind of constitutionalism, and it is significant that the Bill of Rights proposed by the UK government preserves this feature of the Human Rights Act. However, constitutionalism may also be in some tension with the final balancing stage of proportionality used in human rights adjudication, as it seems to be a quasi-political, rather than legal, limit on governmental power. In this context, it is not surprising that the Bill of Rights targets the balancing stage of proportionality. The likely impact in practice of this attempt to constrain the balancing inquiry remains difficult to assess.

My thanks to Alison Young, Michael Gordon, Aradhya Sethia and Claire Macdonald for their insightful comments. Any errors are mine alone.

Guy Baldwin is a PhD student in constitutional law at the University of Cambridge. You can follow him on Twitter at @GuyJBaldwin.

(Suggested citation: G. Baldwin, ‘The Proposed Bill of Rights and Constitutionalism in the UK’, U.K. Const. L. Blog (29th June 2022) (available at https://ukconstitutionallaw.org/))