Public Law after the Human Rights Act

Tom Hickman

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317513
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

It is remarkable that 10 years after the Human Rights Act came into effect, and with further reform possible, there are still no clear answers to basic questions about the relationship between the Human Rights Act, human rights principles and the common law. Such basic questions include: what is the Human Rights Act? What is the relationship between human rights principles and common law doctrines in public law? Do traditional public law principles need to be replaced? How has the Human Rights Act altered the constitutional relationship between the courts, government and Parliament in the UK? Public Law After the Human Rights Act proposes answers to these questions. Unlike other books on the Human Rights Act, the book looks beyond the Human Rights Act itself to its effect on public law as a whole. The book articulates in novel ways the relationship between the Act and administrative and constitutional law. It suggests that the Human Rights Act has built on the common law constitution. The discussion focuses on core topics in modern public law, including, the constitutional status of the Human Rights Act; the relationship between human rights and the common law; the Human Rights Act's effect on central doctrines of public law such as reasonableness, proportionality and process review; the structure of public law in the human rights era; derogation and emergencies; and the right of access to a court. Winner of the Inner Temple Young Author Book Prize 2011.

1

Introduction

HUMAN RIGHTS PRINCIPLES have transformed public law in the United Kingdom. The transformation began well before the Human Rights Act 1998 (Human Rights Act) but the Human Rights Act represented a shift in gear. It accelerated the re-configuration of public law so that modern civil and political rights and freedoms, as set out in post-war international human rights instruments, are at its core and radiate even into areas seemingly distant from human rights concerns, such as planning disputes, taxation and hunting with hounds, to name but a very few. As the title suggests, this book is about how human rights principles have integrated with public law doctrines and, most importantly, how they should integrate. It is a book about the transformation of public law.¹ The book examines core public law principles and doctrines such as Wednesbury unreasonableness and process review, and it explains how these can and should be affected by human rights principles. It also critically examines principles which, rightly or wrongly, come bound-up with imported human rights jurisprudence, such as the doctrines of proportionality and due deference and the notion of derogation. It argues for organic change within the existing mechanics of public law, without the need for further radical doctrinal innovation. It rejects the idea that the reception of human rights principles should lead to public law becoming entirely rights-orientated or reduced to a single test of substantive justification. Human rights principles bring with them new complexities, new standards and new distinctions. These must integrate with the existing doctrines of public law and not supplant them.

The book also looks beyond the doctrines and the structure of public law to the underlying conception of constitutionalism that these reflect. The reception of human rights principles is part of an adjustment of not only the surface architecture of public law but also of the constitution itself, and the relationship between law and politics. But again, the book argues that although courts have been given new powers and responsibilities their basic function and relationship to the other branches of the state should not be radically altered. The functions of judges and politicians remain distinct. It has always been the function of courts to determine what the law is and what rights people have. That remains the case, although the nature of those rights has changed. It also remains the case that courts interact with Government and Parliament in subtle and constructive ways. Their constitutional function in public law cases is not and never has been simply a matter of cutting-down political projects when they transgress legal rights and legal authority. Courts inculcate change, and they avoid determining the extent of our legal rights as often as they determine them. Furthermore, courts rightly have regard to the limitations of legal adjudication in determining whether our rights have been breached. But they ought never to renounce responsibility for determining what our rights are. They may have to give weight to assessments made by others as part of undertaking the task of determining whether there has been a violation of a protected right. They may even decide that the issue is one for another day. But they should never decide that the issue is for another person.

Given this, it is necessary for courts to define the scope of our rights in a way that balances the interests of the individual against those of the wider community. There must be sufficient scope, within the confines of what is unlawful, for the community to pursue its projects. But ultimately it falls to the courts to uphold the requirements of principle even where these conflict with a present expediency. For this reason, the constitutional system quite properly allows Parliament to have the last word. This is not so that Parliament can redefine the scope of fundamental principles, but to allow Parliament to depart from them. Under the Human Rights Act, Parliament retains the power to overrule judicial decisions. Rights-defying legislation also cannot be struck-down. This enables expediency to trump rights, but the politicians must face up to the injustice and must bear the political cost. The burden and the responsibility fall on society’s representatives and not on the courts. The system under the Human Rights Act also allows the Government to derogate from human rights principles, which avoids adverse judicial determinations as to the justice of the measures in question. But it does not avoid the need for the Government and Parliament to face up to the fact that they are acting unjustly, since they must accept that they are disapplying human rights protections by the process of derogation.

In charting this path through public law doctrines and public law theory, this book seeks to steer a middle course between a functionalist, positivistic approach to public law, which views public law as a means of ensuring effective implementation of political projects, and a liberal legalist approach which views public law as a means of upholding inviolable rights and freedoms in the face of the majority’s wishes. To invoke the well-known but still illuminating traffic light metaphor, the book seeks to rejuvenate an ‘amber light’ approach to public law and to take such an approach forward into the human rights era.² An ‘amber light’ approach recognises that part of the function of public law is to permit and enhance political projects, as well as curbing them. It thus emphasises the value of procedural as well as substantive norms, and the standard-setting as well as corrective (reviewing) function of administrative law. It seeks to reconcile the constitutional principle at the heart of the separation of powers that courts, and not Parliament or the executive, determine our rights, with the constitutional truth that Parliament and the executive have the primary role not only for promoting general welfare but also for protecting individual rights through principled projects and principled legislation (such as the Human Rights Act itself). In other words, it recognises the distinct constitutional function of courts and judges but also emphasises the courts’ role in supporting and enhancing the ‘political constitution’.³

This book therefore seeks to develop an account of how the courts should approach and decide human rights cases which is allied to politics, rather than divorced from politics. But it rejects the idea that judges are politicians in robes; just as it rejects the idea that the legal constitution must adopt a deferential posture towards politics and political mechanisms of accountability. The judges are responsible for determining whether our rights have been infringed, but that responsibility is tempered by the limits of their adjudicatory capacity and directed in part at promoting better and more principled governance.

The ‘amber light’ approach emerges in the discussion in each of the chapters in the following ways:

1. Chapter 2 surveys the changes brought about by the reception of human rights principles into domestic UK law and the way that political reform and legal renovation were interrelated. It outlines the manner in which the Human Rights Act interacts with the common law and uncertain relationship between the two.

2. Chapter 3 argues that the function of the courts is to determine legal rights and defend legal principle but that the relationship between the courts and the political branches at common law and under the Human Rights Act is, nonetheless, not merely the corrective, counterbalancing function of enforcing individual rights against political will but is also part of a constructive institutional dialogue. It describes this dialogue in a way which resists the idea that courts have been transformed into political actors.

3. Chapters 4 examines the transformation of the doctrinal structure of public law as it absorbed human rights principles and came to protect substantive standards and substantive rights. It explains that even human rights principles establish a range of standards that permit more or less scope for political action.

4. Chapter 5 rejects a model of human rights adjudication which requires judicial protection to be accompanied by a doctrine of deference which ascribes different degrees of judicial restraint and attributes primary responsibility for defining the scope of human rights in some contexts to the political branches. At the same time, the discussion accepts that the institutional limitations on courts mean that it is appropriate for courts to afford weight to assessments made by other persons where these are relevant to the court’s judgments about whether a protected right has been infringed. It is argued that this is no more than the court performing its established adjudicatory role and is an extension of an ordinary judicial technique, in the field of human rights adjudication.

5. Chapter 6 sets out to show that the doctrine of proportionality has not been applied in a structured or principled manner by domestic courts. Domestic courts should develop a clear and rigorous test for examining the necessity of political projects, whilst at the same time allowing latitude to administrators so that the least intrusive measure does not necessarily have to be chosen in every case.

6. Chapter 7 explains that there remains an important role for a principle of reasonableness in public law after the Human Rights Act even in human rights cases, and examines the history and development of that principle in domestic law and in the case law of the European Court of Human Rights (ECtHR).

7. Chapter 8 emphasises the importance of process review as a means of promoting good decision-making which respects human rights. It demonstrates the importance of process review in human rights adjudication and rejects a blinkered focus on substantive judicial review. Such a focus is a product of the liberal legalist idea that human rights define the parameters of politics and that they do not impose norms aimed at enhancing political decision-making and ensuring that decisions are made properly by the responsible authority. This ignores a crucial dimension both of human rights jurisprudence and their protection through administrative law.

8. Chapter 9 considers substantive public law, and argues against the reduction of substantive public law to a single meta-principle, reflective of some underlying notion of justice or fairness. It defends a more complex architecture of public law principles on the basis of the need for legal certainty as to the standards governing the conduct and decision-making of public officials, and to maintain the normative distinctiveness of fundamental rights.

9. Chapter 10 examines case law on the right of access to court under Article 6 of the European Convention on Human Rights and Fundamental Freedoms (European Convention) and suggests that it has two components: one procedural, a right of access, and one substantive, reflecting the principle of legal equality. It shows how these have often been collapsed in the case law, which obscures the distinct importance and normative scope of each principle. It is argued that the procedural right ought not to create new substantive rights; but the existence of a procedural right does not preclude the existence of any substantive protection. The substantive protection is reflected in a general constitutional safeguard against persons or groups of persons being elevated above the law’s reach or placed beneath its protective embrace.

10. Finally, chapter 11 examines the provisions under the Human Rights Act for derogation from certain Articles. It is suggested that derogation should not be understood in the same way as limitations on rights, which define the scope of rights, but rather as a means of suspending human rights norms altogether to accommodate the political reality of emergency situations. This provides a theoretical basis from which to critically examine the decision of the House of Lords in A v Secretary of State for the Home Office (the Belmarsh Case) in which the UK’s derogation from Article 5 of the European Convention was held to be invalid.⁴

The publication of this book comes at an interesting and uncertain time for public law. It coincides with the 10-year anniversary of the Human Rights Act coming into effect (on 2 October 2000). It also coincides with the first year of the new UK Supreme Court and a significant changing of the judicial guard.⁵ These events might suggest a renewed willingness on the part of the judiciary to apply human rights principles robustly or to forge new paths. But the publication of the book also comes in a general election year, with all three major political parties seemingly committed to further constitutional reform. A change in government with the prospect of a change in the law of human rights in the UK introduces uncertainty that could inhibit judicial creativity and may ultimately curtail the role of courts in protecting human rights, depending on the nature and scope of such reform.

The Leader of the Conservative Party, David Cameron, has pledged to repeal the Human Rights Act if the party gains power at the next election. But he is also committed to enacting a Bill of Rights and this would apparently be designed in a way that continued to confer jurisdiction on domestic courts to enforce the European Convention. He has said that a Bill of Rights needs to, ‘protect the fundamental rights set out in the European Convention on Human Rights in clearer and more precise terms’. He has also said that it must enshrine traditional British liberties, such as jury trial, whilst also setting out, ‘the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals’.⁶ It is presently unclear whether the ‘Bill of Rights’ that the Conservatives propose would subtract from the judicial protections under the Human Rights Act, such as by requiring an individual’s breach of duty to the community to be balanced against the interference with his rights, or by some other device. It is also unclear whether the Conservative Party would seek to repeal the Human Rights Act before a Bill of Rights had been drawn-up and enacted to replace it.

The Liberal Democrats’ policy is broadly similar although they have clearly expressed their desire for a Bill of Rights to build on and go further than the Human Rights Act in terms of protecting individual rights. They are also committed to a written constitutional document that would set out the separation of powers in terms:

The Liberal Democrats will seek the public’s approval to introduce a written constitution for Britain that defines and limits the power of government, with a Bill of Rights at its heart to protect individual rights—including, for the first time, the right to a clean environment. The Bill of Rights will strengthen and entrench the rights guaranteed in the Human Rights Act, which we have consistently supported. The constitution should also set out the powers of Parliament, Ministers, Judges, the Head of State and the national assemblies.⁷

The Labour Party’s position is not far removed. In July 2007 the Labour Government published a ‘route map’ for further constitutional reform and stated that it would open up a ‘dialogue within Parliament and with the people’ about the potential for enacting a new written constitutional document.⁸ In 2008 the Party indicated that it intended to ‘move to the next stage in articulating the balance between rights to which we are entitled and obligations we owe each other’.⁹ It seemed clear that the Labour Government would seek to introduce a Bill of Rights as part of a new written constitutional settlement. However, the much anticipated (and delayed) Green paper on Rights and Responsibilities, finally published in March 2009,¹⁰ was long on words and short on proposals. It was conspicuously reticent about the Government’s constitutional ambitions. On the one hand, and in common with the Conservative Party proposal, it expressed a firm desire for ‘individual responsibility’ to be ‘given greater resonance’ in the constitution, and, unlike the Conservatives, it also made clear that human rights would not be made contingent on the satisfaction of individual duties to society. But on the other hand, the Green Paper does not express any clear commitment to a Bill of Rights, at least one that is legally enforceable. It says that a new ‘Bill of Rights and Responsibilities’ could present an ‘opportunity to bring together in one place a range of welfare and other entitlements currently scattered across the UK’s legal and political landscape’. But it also expresses a preference for such rights and responsibilities not being, ‘directly legally enforceable.’¹¹

Whether or not the Human Rights Act is repealed, most of the issues considered in this book are likely to remain highly relevant, particularly if a broadly similar document is enacted in its place. Issues relating to proportionality, reasonableness, deference, and even substantive questions such as the scope of the right of access to the courts are likely to retain a central place in public law and are likely to arise in much the same way under a Bill of Rights. It is in any event desirable that public lawyers have fully considered and understood how the Human Rights Act interacts with public law to ensure that heresies and misconceptions are not to be carried forward with any further constitutional reform. The discussion in this book is also of some relevance to the debate about whether we should have a Bill of Rights and, more particularly, to the structural features that it would be desirable for any future Bill of Rights to have. The lessons that one can draw from the discussion of the Human Rights Act regime in this book include following:

1. Any domestic Bill of Rights that establishes fundamental domestic rights should not be subject to executive curtailment in circumstances where the Government enters into incompatible international obligations or where the United Nations Security Council requires measures to be taken that are incompatible with protected rights. Where new international obligatio...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Preface
• Contents
• Table of Cases
• Table of Legislation
• 1 Introduction
• 2 The Common Law and the Human Rights Act
• 3 Constitutional Theory and Constitutional Dialogue
• 4 Standards and Rights in Public Law
• 5 Weight and Deference
• 6 Proportionality
• 7 Reasonableness
• 8 The Forbidden Process Element in Human Rights Review
• 9 The Substance and Structure of Public Law after the Human Rights Act
• 10 The Right of Access to Court
• 11 Derogation and Emergency
• Index