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Rebalancing the British Constitution the Future for Human Rights Law

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Rebalancing the British Constitution the Future for Human Rights Law Rebalancing the British Constitution The future for human rights law Jim McConalogue Rebalancing the British Constitution Rebalancing the British Constitution The future for human rights law Jim McConalogue First published March 2020 © Civitas 2020 55 Tufton Street London SW1P 3QL email: [email protected] All rights reserved ISBN 978-1-912581-04-7 Independence: Civitas: Institute for the Study of Civil Society is a registered educational charity (No. 1085494) and a company limited by guarantee (No. 04023541). Civitas is financed from a variety of private sources to avoid over-reliance on any single or small group of donors. All the Institute’s publications seek to further its objective of promoting the advancement of learning. The views expressed are those of the authors, not of the Institute. Typeset by Typetechnique Printed in Great Britain by 4edge Limited, Essex iv Contents Author vi Summary vii Introduction 1 1. Taking back parliamentary democracy 28 2. Reversing judicial supremacy and the ‘constitutional 38 shocks’ of Strasbourg jurisprudence 3. Rekindling the power of the executive to govern 65 and protect 4. Sovereignty and the restoration of British 88 human rights 5. Reclaiming democracy and deliberation – 107 the foundation for future rights Conclusion 124 Notes 127 v Author Jim McConalogue is the editorial director at the think tank Civitas and author of The British Constitution Resettled: Parliamentary Sovereignty Before and After Brexit (Palgrave Macmillan 2019). vi Summary Practical guidance • The repeal of the Human Rights Act (HRA) is now well overdue, given its detrimental impact on the UK constitution. • The UK must withdraw from the jurisdiction of the European Court of Human Rights (ECtHR) in Strasbourg. • By giving up jurisdiction, we would cease to be a signatory to the European Convention on Human Rights (ECHR). • Parliament and the courts would continue to be respectful of the rights entailed in the Convention. This would symbolise the UK’s continuing recognition of the basic aspirational standards set out in the Convention as a basic moral code that may be used to guide decision-making. • Given the need to avoid the dangers of judicial overreach in several areas, the UK should seek to reform the Supreme Court in London into the final appellate court for human rights law. Introduction • The Conservative government’s commitment to ‘update’ the Human Rights Act provides it with a window of opportunity to finally repeal the Act and withdraw from the jurisdiction of the European Court of Human Rights. vii REBALANCING THE BRITISH CONSTITUTION • As a result of many years of campaigning by lawyers, judges, international rights activists and pressure groups, the 1998 Act led to vitally important changes including the enabling of judicial supremacy within the UK constitution. • Against the novelties of the Human Rights Act and the haste of incorporating vastly expansive Strasbourg court jurisprudence, Britain’s unwritten constitution has been severely eroded. • The glaring contradiction between the government withdrawing from an EU legal architecture while seeking to enhance a complementing Council of Europe rights- based system is currently mismatched and in the future, will become unmanageable. • It is increasingly claimed that we need a codified constitution with the Human Rights Act at its heart after Brexit but that has entirely missed the ‘politics of our age’. The public desire after Brexit is to have a stronger democratic process in which applicable rights and laws are derived from a strongly contested debate within the democratic public sphere; they are no longer there to be administered by a foreign court and unchallengeable by the public or left practically unamendable by parliament. • It is time for all parties to move beyond the old Hobson’s choice of the Human Rights Act or a Bill of Rights and to the accept the principles of responsible government. Parliamentary democracy • The enactment of the Human Rights Act and its practice over the last 22 years has unbalanced the Westminster constitution, encouraging a fervent judicialisation of viii SUMMARY politics, with negative consequences for parliamentary democracy. • The theoretical assumptions that ‘declarations of incompatibility’ would enable parliament to decide on rights issues, in practice enabled only courts to decide – with only one declaration resisted by parliament in the entire process. • By abolishing the Human Rights Act, political disagreements on rights by majority-decision would enable a respectful discourse by taking of votes on rights issues and remaining equally respectful of individual opinion for making specific choices. Legislation by a parliament enjoys a greater sense of democratic legitimacy than decisions made by judicial review. Judicial supremacy • The incorporation of the Convention, through the Act, created a questionable new role for British judges in determining policy outcomes. • Britain has been handed down the tenth highest number of Strasbourg court judgements and appears willing to contemplate the gradual emergence of a court with the equivalent jurisdiction throughout Europe of that enjoyed by the US Supreme Court, but without the consent of its electorate. • Over almost 60 years, the UK has received a greater number of judgements (547) than Albania (79), Denmark (51), Ireland (36), Norway (48), Spain (167), Montenegro (50) and Malta (89) put together. • The Human Rights Act is said to be ‘an integral part’ of the British constitution, because on paper it claims to ix REBALANCING THE BRITISH CONSTITUTION check unwieldy executive power and yet in practice, it emboldened a new source of judicial authority of rights, far removed and insulated from the electorate, regular public debate and decision-making in parliament. • Past comments of a former Law Lord and other academics on the development of the UK ‘towards becoming a true constitutional state’ in which ‘the coming into force of the Human Rights Act 1998 … was a landmark’ could be made more manageable by navigating the obstacle of that Act and reinventing a legitimate British rights moral code for the twenty-first century. • Convention rights unpicked the British historical tradition of ‘shared rights provision’ because the Act has meant that the constitution must now lean towards the judicial power of the common law courts – in defence to foreign rights charters – in deciding what constitutes rights. • For much of the Act’s history, the national court deference to the Strasbourg court had been made clear by the practices of the judges through the ‘mirror principle’, interpreted by the Law Lords as ‘Strasbourg has spoken, the case is closed.’ • Radical common lawyer arguments at home rely heavily upon the implementation of the Human Rights Act and the continued incorporation and application of Convention rights, as bolstering the supremacy of judges and judge- made law in the UK Constitution. The power of the executive to govern and protect • Former Prime Ministerial and Home Secretary speeches pledged to scrap the Act and potentially withdraw from the Convention but political circumstances appeared x SUMMARY to prohibit those essential changes. A Conservative government with an 80-seat majority is now conceivably better placed to finally deliver that legislative aim. • The deportation of Abu Qatada and the Strasbourg court’s continued moving of the goalposts under the Human Rights Act allowed the Court to establish new, unprecedented legal grounds on which it blocked his deportation. • Even under the emergency of post-2001 terror threats, the requirement for national security and the detaining of foreign terrorist suspects had been forfeited under the Human Rights Act, notably in the Belmarsh ruling. • The challenge to the principle of ministerial responsibility – as an essential part of Britain’s democratic civilisation – remains at odds with the fervent judicialisation of politics and rights under the Human Rights Act. • The legitimising of Convention rights, through the Human Rights Act, to enable ‘lawfare’ and the ongoing legal investigations into, and litigation against, Britain soldiers must come to an end. • The capacity to govern and protect the nation state must, in modern times, operate in the face of serious ambiguity because of the Act. Sovereignty and the restoration of British human rights • Under the UK constitution, electors and governments look to parliamentary sovereignty as a stabilising force in which the laws of the government-in-parliament are binding upon the UK and could be set aside by no body other than parliament. xi REBALANCING THE BRITISH CONSTITUTION • When the doctrine of legislative supremacy is set aside, so is the stability afforded by that sovereignty doctrine. • The protracted proceedings in the Abu Hamza case, much of which followed the Strasbourg court’s intervention, shines a light on the rights of terrorists in relation to society’s right to national security and the future assumption that a legislature would be able to provide a more appropriate balance. • To reassert its practical sovereignty against a fervent judicialisation of rights, parliament should, having now legislated to repeal the European Communities Act (ECA) 1972 and remove EU fundamental rights obligations, now choose to also alter its human rights obligations under the Human Rights Act. • The Human Rights Act contains provisions which enabled a direct judicial confrontation with parliament over prisoner voting rights (in the Hirst judgement)
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