Talk of human rights reform – in the form of the replacement of the Human Rights Act 1998 with a new British Bill of Rights – has gone quiet in recent weeks, though the process continues to rumble on in the background and at some point concrete proposals will need to be presented. There has been a good amount of comment from various legal bloggers and guest bloggers on particular issues related to the topic, such as the application of the Salisbury convention to the process and, in particular, the interaction of rights reform and devolution. Similarly, there have been interesting interventions on the politics of rights reform: Graham Gee and Grégoire Webber have noted the limited horizons of much the debate as it unfolds among academics, and this morning the UKCLA blog has published Adam Tucker talking about the ‘anti-democratic’ consequences of those arguments which suggest human rights reform might in some sense ‘fail’ as a result of the way in which the common law has developed up until now and will develop further in the event of the HRA’s repeal. In adding to the mass of material on the topic, I want to draw attention to one of the few concrete elements of the proposals as we currently understand them which I consider to be of particular interest. To do so requires a consideration of the way in which the law relating to the protection of human rights in the United Kingdom has developed over time.
The UK ratified the ECHR in 1951 and has recognised the right of individual petition since 1966. It was not until 1998 that it transposed the Convention rights into domestic law with the enactment of the Human Rights Act (or ‘Labour’s Human Rights Act’ as our increasingly moronic political discourse now has it). For a long time, therefore, it was not possible to enforce your rights under the Convention before domestic courts but was possible to go to Strasbourg and argue that you were, as a matter of international law, a victim of a violation of those same rights. The problems with this situation were widely recognised – you were first require to ‘exhaust your remedies’ under domestic law and making an application to the Strasbourg court involved a significant expenditure of time and money, which acted as a very obvious disincentive to the pursuit of justice. From the late 1970s, therefore, through to the eventual enactment of the HRA, there was a diverse body of public opinion making the case for incorporating the Convention into domestic law – notable proponents included such odd ideological bedfellows Ronald Dworkin, who wrote a short book arguing for a ‘Bill of Rights for Britain’ (a phrase which takes on an ironic tint given recent debates) in the early 90s, and Lord Hailsham who, in 1978 had published ‘The Dilemma of Democracy’ which makes the case for incorporation in a quite low-key conservative fashion. All of this is well-known to public lawyers. Similarly well-known is one sceptical strand of the response to these and other proposals – a series of objections to the idea of incorporation, many of them articulated originally and most famously by JAG Griffith of the LSE which, suitably generalised, coalesced into a loose position known as ‘political constitutionalism’.
Political constitutionalism, for all that it has become disparate and unhelpfully self-reflective, has always – or, at least, so it seems to me – been an uneasy conglomeration of principled and pragmatic objections to the notion of constitutional rights (understood here to mean specifically higher-order moral rights which limit the competence of the legislature and executive and are enforced by the judiciary but the objections are often taken to apply, with lesser, and perhaps much lesser, force to the ‘weak’ review made possible by the HRA). In this, political constitutionalism is hardly unique, but in fact quite closely reflects the argument marshaled in favour of constitutional rights, which can similarly be broken down into those categories. By principled arguments, I simply mean those which are of general application, without reference or adaption to the particular set of circumstance in which they are made – an example on the side of the sceptics would be the frequently-made claim that political figures are always and everywhere (usually by reason of their democratic credentials) better placed to make difficult and controversial decisions about the balancing of competing rights or the proportionality of the relationship between a given interference with a protected interest and the benefit which it provides in terms of some legitimate aim.
Pragmatic arguments, however, have always played a major part in the debate, even if specific individuals can and do articulate a vision of the political constitution which does not depend upon them. Most obviously, at least some of the modern resistance to the creation of constitutional rights reflects the sense that in Britain, over the course of the twentieth century, judges have (generally) been found somewhere to the right of the political spectrum – a claim which is heavily associated with Griffith’s own work on the politics of the judiciary. As a result, there was a (justifiable) concern that constitutional rights would provide a mechanism by which conservative judges could block the policy objectives of left-wing governments – an argument, that is, which was reflective of the political and social context within which it was made. And arguments might be essentially pragmatic even where they were couched in terms of principle – a superb example is the haste with which Hailsham reconciled himself to unlimited legislative competence once the sun rose on Thatcherism in 1979 and one no longer needed to concern oneself with all the terrible things which the Labour party might do if in control of a Parliament unfettered by the need to respect an individual’s right to, say, property.
As the Hailsham example suggests, pragmatic arguments, being a function of facts about the world, are liable to vary as the relevant facts change. And indeed, there has been a very significant shift in the making of such arguments over the last 15 years as it has become clear that the judiciary is not so hostile to (certain types of) progressive cause as was once assumed and, perhaps more pertinently, the stark left-right divisions which characterised the UK in the 1970s have faded somewhat as a result of the withering away of old fashioned socialism in mainstream British politics. The result has been two-fold. The left is not nearly so suspicious of judges as it once was, and many of the political constitutionalists of the 1990s are significantly more welcoming of judicial intervention in social and political disputes than they once were. Secondly and conversely, political constitutionalism is now often a broadly right-wing phenomenon: politicians of that stripe see judges as, for example, undermining control of borders or creating obstacles to the effective prosecution of the war on terrorism and wonder why it is that judges should get to speak to these questions at all. This is not to say, of course, that judges are suddenly radically left-wing, but in enforcing a Human Rights Act which implements a international instrument implementing a classic set of liberal individualist values, they end up making decisions which are in many ways more progressive than is the contemporary centre of gravity in British politics. The result in the last decade and a half has been that the courts have irritated the right at least as much as, and perhaps more than, they have the left.
Against this background of shifting facts and unexpected pragmatic responses to them, one feature of the current government’s reform proposals (to the extent they have been made public) stands out: the belief that enforceable rights are not per se undesirable, and the consequent intention (stated in the Conservative party’s 2015 manifesto) to retain in law certain ‘basic’ rights. Those which are included under this heading are not exhaustively identified, but seem to include, at least, the rights to a fair trial, to life, and (predictably) to property. That is, for all its rhetoric the government is not opposed to judges deciding controversial moral questions but in fact intends to allow them to continue to adjudicate upon some of those rights which raise the most difficult and controversial moral issues. The effect of this position is to break the link which haa often been seen in these debates between a pragmatic consideration of who one trusts to decide questions of social or political policy and the question of whether or not one supports the presence of constitutional rights, or the lesser sort of rights protection exemplified by the HRA. In the absence of an explanation of the relevant distinction between these ‘basic’ rights and the other rights currently protected by the HRA, the two questions no longer seem to have anything to do with each other.
This has significant implications for the sort of arguments which can plausibly be offered against the prospect of a British Bill of Rights – we are, or should be, forced onto the terrain of substance: rather than arguing whether we should have enforceable rights at all, taking or leaving the ECHR more or less in its entirety, we are forced to ask exactly which of the rights we should enjoy in law, and which we shouldn’t. As a matter of substance, rather than of form, which questions should be answered by politicians and which by judges? This is difficult terrain, which might, for those who oppose HRA reform, mean admitting that the judicial protextion of some of the rights currently protected in domestic law is less important than is that of others. It might also, however, just about open up a space for arguing for the introduction of new rights, not currently available in law. If, as seems likely, the broader question of reform or no reform ia settled against them, proponents of human rights should be ready to move quickly to this new ground.