In some countries, bill of rights are venerated
as repositories of those values that are held to be most precious.
In the United Kingdom, in contrast, the Human Rights Act – the closest thing we have to
a bill of rights in the modern sense – has been a source of bitter contention ever since
its enactment. Against this background, the Conservative
Party said in its election manifesto that it would repeal the Act and replace it with
a British Bill of Rights. In this presentation, I will attempt to answer
three key questions that these proposals invite. First, what are the perceived problems with
the Act? Second, how might a Bill of Rights be different?
And, third, what constitutional obstacles might get in the way of the implementation
of the Government’s human-rights policy? The Human Rights Act was passed in 1998 and
came into force in 2000, its aim was to give greater effect in domestic law to the European
Convention on Human Rights. The UK had been a party to the Convention
since the 1950s, but until the entry into force of the Human Rights Act it was often
impossible for individuals to enforce their Convention rights in domestic courts.
The only alternative was to seek redress before the Court of Human Rights in Strasbourg – a
costly and time-consuming option that was by no means practically open to everyone.
The Act is not, therefore, a domestic bill of rights in the usual sense. Instead it is
an instrument that gives certain effects in national law to human-rights standards that
are anyway binding upon the UK internationally. The Act does this by:
obliging public authorities to act in accordance with the Convention rights;
directing the courts to interpret legislation compatibly with those rights where possible;
and allowing courts to issue declarations of incompatibility when legislation cannot
be so interpreted. The Act does not, however, allow courts to
strike down incompatible Acts of the UK Parliament. In this way, parliamentary sovereignty – according
to which the powers of the UK Parliament are legally unlimited – is preserved.
It may seem puzzling, then, that judges are considered (by some) to have too much power
under the Act. After all, Parliament – and so politicians,
not judges – retains the final word. However, the position is not quite this straightforward.
Although, in domestic-legal theory, Parliament still does have the final say – it can, if
it wishes, reverse a judicial attempt to read domestic legislation compatibly with Convention
rights, or ignore a declaration of incompatibility – its capacity actually to do these things
is limited. Notwithstanding that Parliament is sovereign
as a matter of domestic law, the Convention is binding upon the UK as a state in international
law. This means, among other things, that the UK
is legally obliged to secure the Convention rights to everyone within its jurisdiction,
and to abide by the Strasbourg Court’s rulings. For some politicians, this is unpalatable,
both because the judges who, in effect, have the final word are European rather than British,
and because it is a court (rather than Parliament) that has that final word.
And so, for all that it is a deft constitutional measure, the Human Rights Act secures a degree
of lock-in to a pan-European judicial system that some politicians find unacceptable.
What, then, can be done by those – including the present Government – who take that view?
The enactment of a British Bill of Rights has long been held out as a panacea, the implication
being that British rather than European rights will be protected, and that domestic not European
judges will be in the driving seat. Indeed, this is precisely what the Government
appears to envisage. Its manifesto says that the proposed Bill
of Rights “will break the link” between British courts and the Strasbourg Court, and that
the UK Supreme Court will become the the “ultimate arbiter of human rights matters” in this country.
The manifesto also implies that the Bill of Rights may protect a narrower range of rights
than the Convention does, and that some rights will be subject to heavier qualifications
than at present, to enable competing public interests more readily to prevail.
A policy paper published by the Conservative Party in 2014 went further still, suggesting
that the judgments of the Strasbourg Court should be considered merely advisory, rather
than legally binding on the UK. So: can any of these things actually be done?
Whether the political will can be mustered is a question for others to analyse.
But what of the legal position? If – as it is generally still considered to
be – the UK Parliament is sovereign, it can ultimately do whatever a majority of its members
collectively wishes. Parliament is thus legally free to design whatever human-rights system
it wants, or to do away with human-rights legislation altogether.
But any analysis that relied upon such arguments would be grossly na�ve.
For two reasons, the position is more complex. The first of those reasons is implicit in
what I said earlier. It is that for as long as the UK remains a
party to the European Convention, Parliament – for all that it is sovereign – will not
have the luxury of legislating upon a blank legal canvas.
Of course, withdrawal from the Convention is not as unthinkable as it once was. Indeed,
the Conservatives’ 2014 policy paper acknowledged that the changes it proposed might eventually
precipitate Britain’s exit from the Convention regime.
But this surely remains unlikely, at least in the short term.
For the time being, therefore, the Convention will remain a constraining force.
This is not to suggest that the Convention requires the Human Rights Act (although it
does stipulate that national law must somehow supply effective remedies for breaches of
Convention rights). After all, the UK was a party to the Convention
for several decades prior to the inception of the Act.
Moreover, most States that are parties to the Convention do not possess national legislative
instruments that resemble the Human Rights Act – in most such States, national constitutions
and bill of rights, not the European Convention, form the focal point of human-rights adjudication.
Nevertheless, while the Convention does not prescribe domestic incorporation through something
like the Human Rights Act, an alignment between Convention rights and national law is called
for. The central obligation imposed by the Convention
upon States is not to permit aggrieved individuals to litigate in Strasbourg: it is to ensure
that national law and practice are consistent with the Convention rights in the first place.
To suggest, therefore, that the UK’s human-rights regime can exist in glorious isolation from
– and be significantly misaligned with – the Convention is nonsensical.
Indeed, it is legally illiterate to imply that Strasbourg can be legislated out of the
picture by a domestic statute that has no purchase upon the UK’s international legal
obligations. A second constitutional obstacle in the path
of the Government’s proposals is devolution. Once again, as a matter of strict legal analysis,
the UK Parliament can do as it wishes. But just as the application of a wider lens
reveals that its freedom of action is constrained from above by international law, so its latitude
is also limited by the devolved nature of the UK’s contemporary constitutional arrangements.
A fundamental aspect of those arrangements is a constitutional convention – in the sense
of an established and expected constitutional practice – known as the Sewel Convention.
This provides that although the UK Parliament has relinquished no legal authority, it will
resist exercising that authority in certain ways.
In particular, says the Sewel Convention, the UK Parliament will not normally legislate:
on matters with which the devolved legislatures can deal themselves,
or in a way that would alter those bodies’ powers,
unless they consent to such Westminster legislation. In this way, the legal theory of parliamentary
sovereignty gives way to a system in which power is effectively divided between London,
on the one hand, and Belfast, Cardiff and Edinburgh on the other.
How, then, does this affect the capacity of the UK Government and Parliament to implement
changes to human-rights law, bearing in mind that some of the devolved governments have
already signalled strong opposition to such changes?
The Human Rights Act itself is something that only the UK Parliament can amend or repeal.
And if it were to be amended or repealed, this would not affect the devolved legislatures’
powers, since they would remain bound by the devolution legislation to respect the European
Convention on Human Rights. It follows that repeal of the Human Rights
Act against the devolved legislatures’ wishes would disclose no breach of the Sewel Convention
itself. However, the enactment of a British Bill of
Rights would be a different matter. Human-rights law, as distinct from the Human
Rights Act, is not reserved solely to the competence of the UK Parliament.
And this means that the enactment of a Bill of Rights against the wishes of the devolved
legislatures would imply a breach of the Sewel Convention.
This, in turn, means that such legislation would be unconstitutional.
It does not follow that it would be unlawful. Nor does it follow that a court could stop
this from happening. But what does follow is that the unilateral
imposition of a new Bill of Rights by Westminster would, in the first place, be highly unlikely.
To the extent that they have any binding effect, constitutional conventions acquire it from
the strength of the constitutional principle which they institutionalise,
and the corresponding political difficulties that would attend disregard of that principle.
Given the present fragility of the Union, and given that the Sewel convention enshrines
the need for the devolved nations’ autonomy to be be respected,
it would be a brave Government that sought to press ahead with human-rights changes in
the face of opposition from the devolved nations and in a manner that would therefore be unconstitutional.
The upshot, then, is that while the proposed changes to human rights law are not impossible,
their adoption is rendered much more difficult by the multi-layered nature of the UK’s modern
constitution. No longer is it the case that a single, sovereign
Parliament in Westminster calls all the shots. Instead, it sits within a network of sub-
and supra-national constitutional relationships that necessarily condition the exercise of
its authority, even if none of them represents a straightforward challenge to its legal sovereignty.
The bottom line, then, is that unless the Government can secure devolved buy-in to its
proposals, and unless it seeks to resile from the European Convention on Human Rights, its
room for manoeuvre is very limited indeed. Bold promises of change have been made. But
whether they can be delivered in a manner that is legally coherent and constitutionally
feasible is a different matter entirely.