Repealing the Human Rights Act, withdrawing from the ECHR: be careful what you wish for

The Government’s human rights attack dogs have been on the offensive this weekend. The Lord Chancellor and Justice Seceretary, Chris Grayling, told the Sunday Telegraph:

I cannot conceive of a situation where we could put forward a serious reform without scrapping Labour’s Human Rights Act and starting again. We cannot go on with a situation where people who are a threat to our national security, or who come to Britain and commit serious crimes, are able to cite their human rights when they are clearly wholly unconcerned for the human rights of others. We need a dramatically curtailed role for the European Court of Human Rights in the UK.

Not to be outdone, Theresa May – according to a report in the Mail on Sunday – wants the UK to withdraw from the European Convention on Human Rights:

Mrs May’s bold proposals to include the move in the next Tory Election manifesto reflect the party’s growing hostility towards Europe. If enacted, her policy would leave British judges free  to interpret the law without interference from the Strasbourg-based European Court of Human Rights … Mrs May wants to withdraw from the convention before the next Election in 2015, but Liberal Democrat Deputy Prime Minister Nick Clegg, a keen pro-European, has made it clear he will veto the initiative.

Grayling’s Telegraph interview comes as no surprise: the Tories’ antipathy towards the HRA is no secret. But May’s position – if it is as described by the Mail – goes further than mainstream Conservatives have so far been willing to contemplate (at least in public).

The need to make the case for the HRA and the ECHR

As far as the substance of the matter is concerned, the views ascribed by the Mail to the Home Secretary are to be deprecated. And yet, in another sense, the fact that the debate is now developing in this way ought to be welcomed, because it will force an open discussion of the merits of the HRA and of the UK’s continuing adherence to the ECHR. Indeed, May’s reported stance brings into the open the subtext to the Report of the Commission on a Bill of Rights, in which (as I have noted elsewhere) the possibility of withdrawal was the elephant in the room – albeit one that was firmly eyeballed in some of the many individual papers that accompanied the main Report.

It is crucial, however, that supporters of the ECHR and the HRA seize the opportunity that is now presenting itself. The counterarguments to May’s reported view are numerous and strong. The Attorney-General, Dominic Grieve, has already noted the reputational damage that withdrawal would likely occasion to the UK. More fundamental, however, is the normative case for continuing to enshrine in law the fundamental rights contained in the Convention. As David Allen Green reminded us in a recent blog post, Lord Bingham, in a lecture in 2009, said:

The rights protected by the Convention and the [HRA] deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.

After listing the Convention rights, Bingham asked:

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? There may be those who would like to live in a country where these rights are not protected, but I am not of their number.

This basic but crucial argument in support of the ECHR and the rights it upholds now needs to be made frequently and loudly, but also coolly and rationally. Anti-ECHR and HRA rhetoric risks acquiring credibility through repetition. It must be countered effectively and energetically by those who support judicial protection of human rights, and who recognise that it is inherent in the very notion of human rights that they are universal.

In this way, it will be possible to expose the misplaced parochialism of those – like Charlie Elphicke MP,  with his Human Rights Act 1998 (Repeal and Substitution) Bill – ­who think rights should be defined in a peculiarly British fashion or, worse still, those (like Martin Howe, a member of the Bill of Rights Commission) who think that UK law should protect the rights of British citizens first and foremost, with foreigners entitled only to a subset of rights. In short, supporters of the present system need to expose the myth being peddled by some that an anaemic “British Bill of Rights” would be worthy of that name. And that requires a debate about – and public understanding of – some basic home truths about what human rights are.

Putting the genie back in the bottle?

But if, powerful arguments in favour of the status quo notwithstanding, the HRA were to be repealed and/or the UK were to withdraw from the ECHR, what then? Adam Wagner has noted that withdrawal would not necessarily be the game-changer that human rights-sceptics tend to assume – not least because the UK would remain bound by EU human rights law and other international human rights instruments to which the UK is a party.

It is also worth remembering that human rights are recognised at common law – something that neither repeal of the HRA nor withdrawal from the ECHR would alter. As Murray Hunt pointed out in his excellent book, Using Human Rights Law in English Courts, domestic law was no stranger to human rights prior to the entry into force of the HRA. Many pre-HRA cases – such as Leech, Pierson, and Simms – clearly acknowledged the notion of common law constitutional rights and evidenced judicial willingness to protect them. And, crucially, when UK courts began to grapple with the HRA, they were at pains to emphasise that that legislation had not conjured into existence rights formally unknown in national law.

Particularly noteworthy is Daly, in which a prisoner challenged a Prison Service policy under which all prisoners were required to be absent from their cells while they were being searched. The claimant, who had privileged correspondence in his cell, contended that the policy interfered with his right to legal professional privilege. In his leading speech, Lord Bingham accepted the argument that that common law right had been unlawfully infringed, and then said:

I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention.

Meanwhile, Lord Cooke said that although case engaged the ECHR:

it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.

Of course, it would be disingenuous to suggest that the HRA changed nothing: courts today are clearly more willing to protect human rights than they were 15 years ago. But Daly illustrates a crucial and intriguing aspect of the way in which the HRA has affected domestic law. It has produced a kind of alchemy, leading judges to discover what was already implicit in the common law while simultaneously augmenting the common law. Viewed thus, the HRA – and the ECHR to which it gives effect – cannot be regarded as something that sits delicately and exotically apart from the common law. Rather, the rights contained in the Convention have deep roots in the common law itself – and the HRA has served to remind judges of this.

To assume, therefore, that repealing the HRA or even withdrawing from the ECHR would rid domestic law of the foreign influences that have supposedly tainted it in recent years betrays a naïve misunderstanding of the nature of our common law constitution. In a post-HRA post-ECHR United Kingdom, it is inconceivable that judges would cease to acknowledge and seek to uphold fundamental rights. Courts would, for instance, continue to strive to interpret legislation compatibly with such rights.

Be careful what you wish for

However, human rights-sceptics presumably anticipate that even if this is so, courts’ powers would be weakened without the HRA and the ECHR to rely on. Perhaps. But perhaps not. One of the most ingenious features of the HRA is that it largely resolves the tension between the courts’ constitutional function of upholding basic rights and Parliament’s sovereign capacity to qualify or displace them. It does this by enabling courts to declare the incompatibility of legislation with fundamental rights and then (via the ECHR) effectively offshoring the problem, rendering the Strasbourg Court the ultimate arbiter in the event of political unwillingness to yield in the face of a domestic declaration of incompatibility.

Deprived of these tools, domestic courts would likely be required sooner or later – and quite probably sooner, given the political agenda underling the repeal-and-withdraw argument – to decide what to do in the event that an Act of Parliament was found to be flatly inconsistent with basic rights. And – the dogma of parliamentary sovereignty notwithstanding – it can no longer be taken for granted that judges would necessarily give way in such circumstances. As Lord Hope put it in Axa:

The question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.

The HRA/ECHR system – by institutionalising respect for fundamental rights in a way that does not explicitly challenge received notions of the constitutional order – has helped to ensure that courts are not confronted with that question. But how they would answer it if pressed to do so cannot be treated as an entirely foregone conclusion. It follows, therefore, that those who advocate repeal of the HRA and withdrawal from the ECHR in order that British rather than “foreign” judges may have the final word should be careful what they wish for.