Earlier this week, I published a post about the views recently attributed by the Mail on Sunday to the Home Secretary, Theresa May. (May, according to the Mail, thinks that the UK should pull out of the ECHR – although today’s Independent suggests that there is likely to be a good deal of posturing behind this.) The purpose of this post is simply to draw attention to two very thoughtful responses prompted by the article in the Mail – and to offer a further thought resulting from them.
The first piece is by Conor Geary – “Theresa May’s human rights stunt” – in the Guardian. The whole piece is well worth reading, but the following paragraph particularly struck me:
At any rate, if the Human Rights Act were repealed, it is not obvious that it would make much difference to how the British courts act now. The judges here have developed a set of human rights principles which are indigenous to the common law and which would almost certainly grow to fill the gap left by the act’s removal: judges deal in facts and real human stories, not rhetoric, and so might be squeamish about sending people to places to be killed or tortured or allowing the same here on the say-so of someone like Theresa May (or, by then, Nigel Farage). In fact, some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene. What would the Tories do then? Withdraw from the legal system?
The second piece – “The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?” – is by Scott Stephenson, and can be found on the UK Constitutional Law Blog. Again, the piece merits being read in full. Stephenson’s key point, however, concerns the effects that repealing the Human Rights Act 1998 may – and may not – have. As I argued in my piece on this blog, the effect of repealing the HRA (or, for that matter, withdrawing from the ECHR) may not be as dramatic as human rights-sceptics suppose. Developing this point, Stephenson asks:
[I]f enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?
He concludes with the following:
While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.
These are pertinent and important questions. My own view is that it does not necessarily follow that repealing a constitutional statute necessarily rids the legal system of all the norms that it enshrined—precisely because of what Stephenson refers to as “bi-directionality”.
But what if Parliament did not merely repeal the HRA, but also directed courts not to give any effect to the ECHR in domestic law or to protect analogous rights? Or (more plausibly, perhaps) what if Parliament enacted an anaemic British Bill of Rights that enumerated rights in decidedly narrower terms than those found in the Convention or at common law? What if, in other words, Parliament sought to anticipate the possibility that judges might simply shrug their shoulders at the repeal of the HRA – on the ground that they would be able to continue enforcing equivalent rights, whether by drawing upon the Convention in spite of the HRA’s repeal or relying purely on the common law as a source of rights?
Such a scenario – which, while still unlikely, is less difficult to contemplate than it once was – engages Stephenson’s final question about “the scope and limits of legislative power to direct and modify the role the judiciary performs in society”. The British way is to avoid having to face up to such questions by relying on everyone playing nicely. So the uncertain boundary between political and judicial power remains undefined, behind a veil of obscurity created by the formal doctrine of parliamentary sovereignty. As I argued in a paper in the New Zealand Law Review, the result is that the UK constitution has a mystery at its heart, consisting of a fundamental uncertainty about what would happen if institutional comity were to break down between judges and legislators.
No-one can know for definite what would happen in such circumstances, and it would be naive to assume that, if sufficiently provoked to assert themselves, judges could straightforwardly ditch parliamentary sovereignty and institute judicial supremacy. It is, however, entirely conceivable that a fundamental breakdown in institutional comity might place the sustainability of the unwritten constitutional settlement under threat – and, as Lord Woolf suggested last time there was an almighty row between judges and Ministers, ignite a campaign for a written constitution. I wonder if Theresa May has thought of that?