The extent of the interpretative space which exists to accommodate ‘the domestic’ within the meaning of the Convention rights under the Human Rights Act 1998 (HRA) is one of the core constitutional controversies of the HRA era. Dominic Raab’s – soon-to-be reanimated (?) – Bill of Rights Bill 2022-23 (BoRB) continues a decade-long trend of suggesting a HRA replacement which would be more accommodating of ‘quintessentially UK rights’. Can the BoRB achieve its apparently parallel aims of diminishing the domestic relevance of the case-law of the European Court of Human Rights (ECtHR) while upholding the UK’s obligations under the ECHR?
The supervisory role of the ECtHR, its emphasis on subsidiarity and the employment of the margin of appreciation combine to ensure that the space available to national authorities to pursue distinctive and divergent policy choices within the framework of the Convention system is considerable. Within this space however, domestic institutions do not enjoy carte blanche to interpret the Convention rights as they see fit. Nor is the HRA a freestanding instrument. It is an instrument designed for the specific purpose of giving effect to ‘the Convention rights’ in domestic law. The rights it protects cannot, therefore, be understood as creatures purely of domestic law. The operation of the HRA (and any replacement instrument which revolves around maintenance of the Convention rights underpinned by the UK’s ongoing membership of the ECHR system) needs to be understood in this context.
The domestication and adaption of the Convention
It is worth recalling that the HRA is nonetheless a distinctively domestic constitutional solution. The HRA did not deliver wholesale adoption of the ECHR; certain rights were not domesticated (Article 13 for instance) and the ECHR rights that were given ‘further effect’ were not to have direct effect. Instead, their application in the domestic context would be contingent on sections 3, 4 and 6 of the Act. The maintenance of parliamentary sovereignty was – and remains – a central feature of the HRA scheme. (As is well known, the HRA affords no judicial ‘strike down’ power, no legal obligation results from a declaration of incompatibility, and the Act clearly envisages Parliament legislating in apparent contravention of the Convention’s requirements.) Implementation of the HRA was not therefore a straightforward act of replication, or of constitutional transplantation.
In the courts’ consideration of the ECtHR case law, s.2(1) also seemed to leave space for adaption of the Strasbourg case law in its translation into domestic law; the Strasbourg case law should be ‘taken into account’, rather than applied or followed. The then Lord Chancellor defended this approach on the basis that it would allow for a state of interdependency to develop between the national and supranational systems; domestic courts’ readings of the Convention rights would be informed by the Strasbourg case law, while the Strasbourg court itself would benefit from the local application of the Convention rights by UK courts.
Judicial maximisation of space for ‘the domestic’?
As a result of the integral HRA link to the ECHR and domestic separation of powers concerns, judicial approaches which sought to maximise the ‘domestic’ elements of HRA adjudication – which looked to exploit the space left by the HRA for creative, expansionist, or ‘British’ readings of the Convention rights in domestic human rights adjudication – have not been commonplace.
Dualist conceptions of the HRA – typified by Lord Hoffmann’s suggestion in McKerr that while the Convention rights under the HRA have international origins, they are creatures of domestic statute, whose interpretation and application are matters solely for domestic courts – have not been widely reflected in judicial decision making under the HRA. The superior courts have tended instead towards recognition of the Strasbourg Court as having the final say on the meaning and application of the Convention rights. The resulting scope for a ‘domestic’ take on those rights – even in those circumstances where the margin of appreciation applies and/or where Strasbourg has not yet adjudicated in relation to a proximate dispute – is not broad. (As to the latter, the Supreme Court has recently held that it is not for domestic courts to engineer their own solutions in such uncertain terrain, they must also be ‘confident’ that the ECtHR would resolve the dispute in a similar manner.)
Nor have the bold suggestions of Lord Justice Laws – that the Human Rights Act would provide a democratic endorsement to the common law’s recognition of constitutional rights – come to fruition. While the common law remains a vehicle through which rights might be protected in domestic law – as evidenced in Osborn, A v BBC, and so on – it cannot be said to have developed to the extent that common law rights can be said to match the range of the Convention rights given effect by the HRA, or the remedial capacity found in the HRA’s provisions.
Integrating the domestic and the international
Following an early period of considerable deference to the ECtHR case law (an understandable judicial strategy in the early post-implementation years but one which – as Brice Dickson has written – had a significant ‘internationalising’ effect on domestic rights protection) something approximate to an interplay or dialogical relationship between UK courts and Strasbourg has emerged. Strasbourg decisions might not be necessarily determinative of domestic adjudication, but they – as directed by the HRA – remain the primary authorities by which the Convention rights under the HRA should be understood.
It does not follow that UK courts are entirely responsive to (or as the narrative often goes, subservient to) the European Court of Human Rights – as Colin Warbrick has suggested – the Strasbourg case-law requires interpretation by domestic courts to be coherently applied in the domestic setting. The business of translating the Convention jurisprudence into the domestic order is not a passive role. Application of the Strasbourg case law will require its meaning and consequences for the domestic legal order to be explained, may require reconciliation of divergent or apparently conflicting authorities, may require judges to elaborate on or recontextualise previous decisions, and so on. When a court undertakes these activities in relation to other domestic authorities, it is uncommon to hear complaints that the court is abdicating its role or acting as a proxy for the original decision-maker. While these reasoning activities may not provide obvious illustrations of domestic discretion, they are in practice the central process via which the Convention rights are translated into the domestic system.
Alongside these routine illustrations of the space for the domestic in the application of the HRA, more tangible illustrations can be found of the discretionary latitude available where domestic courts determine not to apply potentially applicable Strasbourg case law. The Strasbourg jurisprudence may not be determinative of a domestic dispute if – for instance – it were to compel an outcome which would be ‘fundamentally at odds’ with the United Kingdom’s separation of powers, if it is ‘inconsistent with some fundamental substantive or procedural aspect of our law’ or if the court opts to defer on democratic grounds to the legislature’s considered view as to the appropriate balance to be struck between individual rights and societal interests. But the nature of the HRA’s linkage to the Convention system does mean that those flagship examples of ‘giving a lead’ to Strasbourg (Horncastle, Animal Defenders International, and so on) are likely to be relatively rare.
The benefits of the current position are reasonably clear. They include: its relative certainty, for applicants and public bodies; its relative stability in the incremental development of domestic law; its provision of an effective means by which the Strasbourg court can be alerted to the specificities or quirks of domestic law; the UK’s improved track record before the European Court of Human Rights; and the provision of a rights instrument – in the context of a system which otherwise prefers weaker forms of judicial review – with real normative backbone.
Legislating to maximise ‘the domestic’?
Yet if the linkage with the Convention system is perhaps a key benefit of the HRA scheme, it is also its core weakness. The broad benefits of the HRA model – many of which are contingent on the integral linkage the Act has with the Convention system – are invisible to (or otherwise ignored by) critics of the HRA. The narrative of legitimate interplay between the domestic and Strasbourg systems has been supplanted by one relating to the abandonment of local decision-making autonomy and the excessive influence of ECtHR decisions in (what should be) domestic decision-making.
As such, efforts to reform the HRA have sought – in various ways – to expand the space for domesticated interpretations of the Convention rights. These have ranged from the implausible (determining that Strasbourg judgments should be advisory only), to the symbolic (declaring the UK Supreme Court to be the ultimate (judicial) arbiter of the Convention rights in domestic law (BoRB, clause 1(2)(a)), to the borderline ridiculous (suggesting that jurisprudence from literally anywhere might be preferred to the jurisprudence of the Strasbourg court in determining the meaning of the Convention rights in the domestic context).
In common, these proposals seek to install a jurisdictional or conceptual distinction between those rights as applied by the Strasbourg court and those rights as applied by domestic courts. The BoRB seeks to reinstate the dualist division between the domestic and the international which the HRA sought to dissolve, and to adopt some variant of the Hoffmann thesis as the governing principle of the ongoing linkage between the UK and the ECHR (generating rights that may be international in origin, but that are distinctly domestic in application).
The BoRB is similarly concerned to engineer increased space for the domestic in the UK’s human rights regime. It seeks to expand this space by suggesting that the Convention rights should continue to form the backbone of the UK’s statutory human rights regime, but that they should do so while being potentially shorn of the decades’ worth of Strasbourg case law which articulates their core meanings and extent.
The Convention rights under the BoRB proposals initially look to be qualitatively different to their HRA counterparts. While the text of the Convention rights would be incorporated, mandatory consideration of the Strasbourg jurisprudence would be replaced by an (implicit) option to consider decisions of the European Court. The BoRB contains no s.2(1) HRA equivalent and declares that decisions of the ECtHR “are not part of domestic law” (clause 1(3)). To reinforce the general tenor, departure from the Strasbourg court’s reading of a Convention right is explicitly contemplated by the Bill of Rights Bill (clause 3(3)(b)).
Under the BoRB proposals, a court ‘determining a question which has arisen in connection with a Convention right’, must consider the text of the relevant Convention right(s), may consider the preparatory materials on which the Convention is based (clause 3(2)(a)) and may consider any common law right that is similar to a Convention right (clause 3(2)(b)). The Bill is careful to avoid reference to the ECtHR case law in its primary clause on the interpretation of the Convention rights. Additionally, the potential relevance of the Strasbourg case law in specific fields is potentially reduced yet further by the Bill’s stipulations in relation to freedom of speech, positive obligations, and so on (clauses 4-8).
In its overall stance in relation to the Strasbourg case law, the BoRB seeks to diminish the prominence of ECtHR decisions in domestic rights adjudication. In a number of ways its clauses acknowledge of a series of positions already reflected in the HRA case law (and the HRA itself): the Strasbourg jurisprudence does not bind domestic courts; the HRA does not preclude reliance on the common law (or comparative law, or the ECHR’s travaux préparatoires); the HRA has not been interpreted as empowering domestic courts to ‘leap ahead’ of Strasbourg. But in labouring the point relating to domestic divergence from the Strasbourg case law (clause 3(3)(b)), the BoRB clearly suggests an ongoing, potentially central, role for the Convention jurisprudence. For a court to recognise it was departing from a Strasbourg position, it would be required to ‘take into account’ the jurisprudence of the ECtHR. Consideration of the expansion of a domestically applicable right – in which circumstances the BoRB requires ‘no reasonable doubt’ that the Strasbourg court would do the same (clause 3(3)(a)) – similarly necessitates consultation of the Strasbourg jurisprudence. Bizarrely, this latter clause also asks us to view the Strasbourg jurisprudence – otherwise denigrated by the government for its elasticity and expansionary tendencies – positively, as a legitimate brake on the potential rights expansionism of domestic courts (how this impacts upon the status of the Supreme Court as authoritative interpreter of rights under the BoRB (clause 1(2)(a) is not clear).
Thus, on the one hand the BoRB requires us to believe that the Strasbourg jurisprudence would be of only minimal relevance to its new scheme. On the other, consultation of that self-same body of jurisprudence is integral to determining whether a domestic court might be more generous than Strasbourg in its reading of the (domestic) Convention rights or might otherwise take a route which diverges from the view of the Strasbourg court. Between these two positions, the (implicit) default would appear to be something not dissimilar to the state which currently persists.
The Convention rights under the BoRB appear at first glance to be empty shells but contain the prospect of rather closer engagement (and alignment) with the Strasbourg case law than the government would openly admit. The BoRB undoubtedly promises the dilution of Strasbourg influence in the domestic context across a range of specific contexts (as well as much confusion and clarificatory litigation besides), but at the general level the BoRB’s objective of delivering ‘quintessentially UK rights’ within the parameters provided by the Convention rights promises more than it looks likely to deliver.
My thanks are due to Dimitrios Kagiaros and Gavin Phillipson for their comments and suggestions.
Roger Masterman, Professor of Constitutional Law, Durham Law School
(Suggested citation: R. Masterman, ‘The Convention Rights in the Human Rights Act and under a Bill of Rights: Domestic, European or Both?’, U.K. Const. L. Blog (23rd November 2022) (available at https://ukconstitutionallaw.org/))