Dominic Raab's 'Bill of Rights' Bill and the Constitution and human rights

Justice Secretary Dominic Raab has recently announced the government's intentions to reform the structure of the courts in our Constitution with regards to the protection of human rights in Britain.

I have had a brief read through it (only takes 30 mins or so), and I would like to share a few of my thoughts on some interesting aspects of the Bill. I do not believe that it is possible to be a signatory of the European Convention without being bound by its Strasbourg Court. Therefore, if the government intends to repeal the Human Rights Act 1998, I argue that it should also withdraw from the European Convention on Human Rights. Lastly, I end with a discussion on an interesting miscellany of legal concepts that hinge on the relationship between Parliament and the Courts. I hope you enjoy.

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Purpose

"Bill of Rights is intended to repeal and replace the Human Rights Act 1998" — [1(1)]

"This Act clarifies and re-balances re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament" — [1(2)]

It seems that we are not withdrawing from the European Convention. From what I have seen, the Convention rights are listed in the schedule which seem to replicate the present configuration. Other uncontroversial aspects (such as definition and obligation of public authorities) remain analogous.

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Are British courts bound by Strasbourg

"The Supreme Court (and not the European Court of Human Rights) determines the meaning and effect of Convention rights for the purposes of domestic law" — [1(2)(a)]

"The Supreme Court is the ultimate judicial authority on questions arising under domestic law in connection with the Convention rights" — [3(1)]

This is intended to counteract section 2 of the Human Rights Act 1998. Under section 2, the UK courts have a duty to "take in to account" Strasbourg decisions. Of course, in practice, the question is what does this entail? It was never very clear. On one end of the spectrum, in Ullah [2004] UKHL 26, Lord Bingham argued that "national courts [have] to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less". However, more recently, in Pinnock [2010] UKSC 45, Lord Neuberger held that while domestic courts normally follow clear and constant Strasbourg jurisprudence, they do not have to so if Strasbourg was wrong.

The intent here is to make Strasbourg jurisprudence persuasive — but not binding on the British courts. This seems sensible and may clear up a bit of confusion inherent in section 2 of the Human Rights Act. Moreover, on the face of it, this should also be inoffensive to the Strasbourg court as the development of our British jurisprudence should be in line with their own doctrine of the margin of appreciation.

However, there is an insuperable contradiction which I don't think has been addressed in this Bill. The European Convention is ultimately a subject of international law. The Convention was never incorporated into UK law until the Human Rights Act 1998. Until then - as a signatory state - the UK was bound to the terms of the treaty under international law. Only until the Human Rights Act, were rights conferred on individual citizens. Until then, UK citizens had to exhaust all domestic remedies (through the entire UK legal system) before a case reached the Strasbourg Court. Therefore, disregarding the rulings of the Strasbourg Court would still put the UK in violation of the international treaty under this Bill. Under Article 46 of the Convention, the Committee of Ministers would be able to commence proceedings against a member state which failed to comply with a judgment of the Strasbourg Court.

Under the doctrine of Parliamentary sovereignty, the UK courts could decline to be bound by a judgment of the Strasbourg Court and it would have no effect in domestic law. Notwithstanding a decline in (let's say) international reputation and standing, the UK government would suffer penalties as reparation for consequences of the breach. On that footing, the UK government might as well just secede from the Convention. One cannot be a signatory to an agreement whilst also not wishing to be bound by its terms.

The heart of the problem is the constitutional legitimacy of the Strasbourg Court inherent in its "development" of the Convention jurisprudence in line with the nebulous doctrine of the "living instrument". I think it is unacceptable for a foreign court to assume its own jurisdiction unilaterally - as it defines it.

In Lord Sumption's Trials of the State, he outlines how the Convention has — after the UK's accession — morphed into a very different species in which the Convention has been expanded and adapted in ways not originally understood when the UK signed up. Notably, Article 8 has involved the Strasbourg Court broadening the range of interests and rights falling under the "principle of personal autonomy".

The Convention was originally conceived as a partial statement of rights universally regarded as fundamental: no torture, no arbitrary killing or imprisonment, freedom of thought and expression, due process of law and so on. It was not originally designed as a dynamic treaty. It was the Strasbourg court which transformed it into a dynamic treaty in the course of the first two decades of its existence. Its doctrine has been that the Convention is what it calls a 'living instrument'. The court develops it by a process of extrapolation or analogy, so as to reflect its own view of what additional rights a modern democracy ought to have.

The law that has emerged from this system is applied by the Strasbourg court in all forty-seven countries that have signed up to the Convention, with only very limited allowance for differences between their moral values, their political culture or their institutional traditions. Indeed, as a result of a series of controversial decisions of the court, parts of it are applied to military operations by Convention countries in non-Convention states such as Iraq and Afghanistan for which the Convention was never designed and to which it is ill adapted.

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The relationship between the judiciary and Parliament — interpreting the Convention & declarations of incompatibility

"no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights" — [1(2)(b)] 

"Give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament" — [1(2)(b)]

Under Section 3 of Human Rights Act, the UK court's ordinary rules of statutory interpretation were expanded such that a court can deviate from the ordinary interpretation of language in a statute to avoid clashes with the Convention. In Wilkinson [2005] UKHL 30, Lord Hoffman held that section 3 created a form of statutory construction with the presumption that Parliament intended not to interfere with Convention rights. Whilst this may have effected a dilution in the practical reality of parliamentary sovereignty, the standard law-student's rejoinder was that such an arrangement was parliament's mythical intention. From this Bill, it would seem that such abstract presumptions about parliamentary intention would no longer be valid and, accordingly, the modern practice of purposive statutory interpretation would, in this vein, no longer be tenable. 

But, it is worth asking whether the genie is out of the bottle? In Evans v Attorney General [2015] ('Black Spider Memo Case'), the Supreme Court effectively re-interpreted a statutory provision to introduce various 'constitutional' considerations which went against the plain intention of Parliament. The logic here seems to be to "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" [7(2)(b)]. If so, then I do agree with such an objective. It strikes me as a healthy and salutary attempt to increase Parliamentary scope (and thus raising the legitimacy) in the gamut of political issues that reach the court.

In addition, the corollary would be an increased expectation that the High Court would issue more "declarations of incompatibility". These are fairly innocuous procedures intended to alert Parliament to amend or repeal the offending Act — if Parliament chooses to do so. What is interesting is that the government is entitled [11(2)] to notice and to be joined as a party to the proceedings. Again, nothing controversial here.

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Update (2nd July 2022): Adam Tomkins has written (The Herald) defending the repeal of the Human Rights Act 1998 arguing that "our civil liberties are better protected by parliamentary legislation than by judicial decisions". Also "I do not want to live in a country where rights and freedoms are the playthings of judges. I want to live in a country where their articulation and defence is a matter for Parliament".