Human Rights, Parliamentary Sovereignty, and the Rule of Law

In this week’s Law Society Gazette, Joshua Rozenburg has a cogent piece about the current Human Rights debate, which the UK Human Rights blog has done a good job of covering. Discussing the opposing viewpoints of David Cameron and the Strasbourg court about the relationship between the UK and that court, Mr Rozenburg refers to a speech given by the former Lord Chancellor Lord Irvine at the Bingham Centre for the Rule of Law last month. The purpose of the speech was to try to change the jurisprudence of the Supreme Court as it relates to the precedence of judgements from Strasbourg.

Lord Irvine

The talk was premised on the interpretation of Section 2(1) of the Human Rights Act:

2 (1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights …

This has been taken by the UK judiciary to mean that they must follow Strasbourg’s rulings; Lord Irvine protests that the UK judiciary “should have considered and respectful regard for decisions of the European Court of Human Rights, but neither be bound nor hamstrung by that case-law.” This would result, he says, in contentions between the UK and Strasbourg being resolved at the “State, not judicial, level”.

That is to say: when we our law is not in accordance with Strasbourg it is for Parliament to deal with, not the courts.

Section 2(1) was placed in the act with careful deliberation:

This provision is fundamental to the pivotal new relationships which the Act establishes between our domestic Courts, Parliament and the ECHR.

Lord Irvine is saying that 2(1) is the fulcrum on which the new constitutional relationship between Parliament, the UK judiciary, and the Strasbourg court, must balance; but at the moment he sees the UK judiciary acquiescing as the balance is tipped to Strasbourg’s end.

This raises a question, which Lord Irvine frames in these terms:

What precisely is it that our domestic Courts are doing  when adjudicating under the HRA? Are they merely seeking to predict and mimic what the decision of the Strasbourg Court would be if presented with the facts of the case before them – in effect, are they simply agents or delegates of the ECHR ? Or are they doing something quite different (and more profound) – interpreting and explaining the content and meaning of the Convention rights within the sovereign legal systems of the United Kingdom?

The answer, which will be no surprise, is that the second of the two answers is correct. The legislation does not bind the courts to follow Strasbourg, it binds them to decide for themselves with an awareness of Strasbourg.

The crucial phrase is “take account of”, which ”is not the same as ‘follow’, ‘give effect to’ or ‘be bound by’.”

This, as well as Section 4, is part of the preservation of Parliamentary Sovereignty in the act.  It is Parliament’s job to resolve, if they want to, conflicts between us and Strasbourg: “It is Parliament, and not the Strasbourg Court, which is supreme.”

In AF v Secretary of State for the Home Department Lord Rodgers expressed the court’s view in straightforward terms:

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.

Lord Irvine’s view is that the decisions of Strasbourg, even if they are trite law, do not alter the UK courts’ duty under section 2(1). Irvine is aware of the arguments against him, that bringing rights home means following Strasbourg, and that we have international obligations. He affirms that decisions of the Grand Chamber should be regarded as highly persuasive, but,

the existence of such a decision can never absolve the domestic Judge from the high Constitutional responsibility incumbent upon him under s.2 … it is not open to him simply to acquiesce to Strasbourg.

In the case of AF the courts felt that Strasbourg was wrong; that they had prioritised the rights of terrorists over the rights of their potential victims. He says that judges following law they feel is wrong will undermine our integrity, and damage the interests of the people of Britain.

And crucially 2(1) does not oblige them to do this.

As he says, “The Judges should not abstain from deciding the case for themselves simply because it may cause difficulties for the UK on the international law plane.” As we will see, this puts his view of the constitution in conflict with that of some judges; but on this narrow issue there he may be correct.

Lord Philips and Lord Judge

Giving evidence in November to the Joint Committee on Human Rights, the two most senior members of the British judiciary discussed the extent to which they feel themselves bound by the jurisprudence of Strasbourg. Lord Philips said something that sounds remarkably similar to the position advocated by Lord Irvine,

Parliament is supreme in this area; it does not have to have regard, as a matter of domestic law, to decisions of the Strasbourg court. If we rule that a particular piece of legislation is not compatible with the Convention, that is the message we convey; what is done with that message is entirely up to the Government.

But as the case law shows, and as Lord Irvine demonstrates, there is much deference to Strasbourg in the English courts. But, what became clear through the evidence of Lord Judge in particular was that the principles are not in dispute. There are a few small areas of dispute: namely terrorism and deportation, prisoner votes.

The issue arises only when there is a conflict on where to draw the line; Parliament wants the courts to be less in tow to Strasbourg in order to strengthen its own position.

The judges’ response to this was that Parliament would have to change the statute. And that change could easily remove the influence of Strasbourg. As Lord Judge said, in response to Dominic Raab MP:

We will decide whatever conclusion we come to on the law as it stands; you will have to address the question of what you want the law to be. Ultimately, as I said earlier, you decide that; we do not

Lord Steyn

This goes to the heart of a larger constitutional debate: the dynamic between Parliamentary Sovereignty and the Rule of Law. Judges feel themselves bound to Strasbourg through the system of precedence, Parliament feels that judges ought to be bound by the supremacy of domestic legislation. The ECHR was incorporated into domestic law by Parliament; by Parliament it can be removed.

There is, at the heart of this argument on Human Rights, a conflict between the Sovereignty of Parliament and the Rule of Law. If the courts continue to ignore, in Lord Irvine’s argument, the meaning of 2(1) they will be accruing power to themselves from the legislature.

This conflict has been identified by Vernon Bogdanor, in his book The New British Constitution, and in numerous articles, where he states that there is a conflict between Parliamentary Sovereignty and the Rule of Law because the judiciary has been empowered by the Human Rights Act.

Such arguments are old, and repetitive. When judicial review became more commonplace David Blunkett complained that the executive was being hampered by the new and trendy powers in the court. Lord Bingham wittily replied that judicial review, with all its Latin terminology, was hardly new.

And in the case of Pierson Lord Steyn, a famous enumerator of constitutional jurisprudence, said,

Parliament does not legislate in a vacuum … unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.

And in Simms although Lord Hoffman allowed that Parliament could legislate in a way contrary to Human Rights, he made clear that,

fundamental rights cannot be overridden by general or ambiguous words … the courts presume that  even the most general words were intended to be subject to the basic rights of the individual.

The most well known instance of the division between Parliament and the Courts is the Jackson hunting case. Here a challenge was brought to the House of Lords about the Hunting Ban, which claimed that the Parliament Act 1949 was invalid as it had been passed using the Parliament Act 1911, which was not something the 1911 Act was intended for.

During the decision some of the Law Lords made clear that the old Dicean notion of Parliamentary Sovereignty was no longer the certainty that it once was. Dicey believed that “Parliament … has, under the English constitution, the right to make or unmake any law whatever.” And although the authority of Picking v British Railway Board was quoted, which dicta says that the courts have “no power to declare enacted law to be invalid”, misgivings were expressed about the absolute nature of Parliamentary power.

Lord Steyn made the point most clearly: referring to the changes to the constitution brought about by the Human Rights Act, and the new obligations on Parliament to protect fundamental rights, he said,

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Lord Bingham

Lord Bingham was the greatest modern advocate of the Rule of Law, and he saw the European convention as being “as good a list as any” of the fundamental freedoms that a country bound by the rule of law ought to uphold. He made the point many times, most notably in his book The Rule of Law, but it can be understood clearly, and shortly, in this lecture given as a Commemoration Oration given at King’s College London in 2007.

His great contribution to the rule of law was to define international obligations as being a core part of the definition, and this is the principle that underpins the viewpoint that the judiciary in the UK must pay due heed to decisions of the Strasbourg court.

But he also defined Parliamentary Sovereignty with a new clarity:

What the principle means is that Parliament has, in the United Kingdom, no legislative superior. The courts have no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament.

And although there are practical limits on the sovereignty of parliament, as Professor Bogdanor has pointed out, Lord Bigham says that all of these,

involve a curtailment of the Westminster Parliament’s power to legislate, but that curtailment takes effect by express authority of the Westminster Parliament which, at least theoretically, it retains the power to revoke.

If the conflict between the judiciary’s observance of Strasbourg’s jurisprudence and Westminster’s will is not resolved, then Parliament can simply take back control of this are of law by leaving European Court of Human Rights. It is almost inconceivable that this is what will happen.

Conclusion

In their evidence Lords Judge and Philips drew lines between the legal and the practical; they emphasised that litigants who did not get justice here could go to Strasbourg in any event. And they said that there was scope for 2(1) to be clarified, to make it very clear that judges must only take account of those decisions, not follow them all. Lord Judge thinks that the question is debatable, and that it will fall to be decided within the next twelve months. Lord Philips is more obviously keen to follow Strasbourg, and quoted liberally from Sir Nicholas Bratza.

But there may come a tipping point. And Lord Bingham gives a helpful answer. When responding to the comments of his colleagues in Jackson he respectfully declined to agree, stating at King’s College London,

It has to my mind been convincingly shown that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.

If there is sufficient parliamentary disquiet about the meaning of 2(1) then Parliament will be able to change the wording. The Supreme Court, it seems, will not win this constitutional tug of war with the legislature. This is not guarantee of victory for Cameron, nor does it endorse a tabloid view.

If Parliament changes the statute and precludes the courts from always following Strasbourg a contention will arise with Strasbourg, and Parliament will be left to resolve it. David Cameron’s recent speech argues for a small extension of the margin of appreciation to preclude the ECHR from influencing the nature of UK voting laws; it’s the same principle as not expecting Strasbourg to strike down the French burka ban. The resolution of that argument may well have implications for the balance of powers at home as well as abroad.