A British Bill of Rights

Having watched this video and gone through the readings in the CLRI study guide, I have some thoughts on the topic discussed here.

Lord Irvine of Lairg’s gave a lecture given at the Bingham Centre in 2011, titled ‘A British Interpretation of Convention Rights’. He used the occasion to try to correct what he considered as erroneous judicial interpretation of section 2(1) of the Human Rights Act 1998. My view is that, the issue is not simply one of statutory interpretation. It is a constitutional issue of great importance which touches on the highly charged political issue of Britain’s place in Europe.

S 2(1) of the HRA provides that a court or tribunal determining a question which has arisen in connection with a convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. It is the interpretation of the phrase ’take into account’ which has given rise to the said issue.

Lord Irvine was the Lord Chancellor who introduced the Human Rights Bill, which was to become the Act, in Parliament. Therefore he has an accurate view of the legislative intent of s 2(1). That intent is to task the judiciary to develop a domestic constitutional jurisprudence on those human rights set out in the European Convention on Human Rights which have been adopted by the UK through the Act. The phrase ‘take into account’ is meant to confer power on the judiciary to receive into UK common law that part of ECtHR jurisprudence on Convention rights which are compatible with UK conditions, should it be considered desirable to do so.

What has happened in practice to-date is not quite what Parliament has intended. In his lordship’s words: ‘… While there are variations of approach between different cases and Judges, the domestic Courts have strayed considerably from giving effect to Parliament’s intention as expressed in s.2. …’. This departure has dogged a line of cases beginning with R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295. In that case, the court said that ‘… In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. …’. The late Lord Rodger summed up the view of the judiciary as ‘Argentoratum locutum, udicium finitum’. This deference attitude includes not just what the ECtHR has spoken, but also what it has not spoken. That is, the UK judiciary must not surpass the ECtHR in the development of Convention rights: Ambrose v Harris (Procurator Fiscal) [2011] 1 WLR 2435.

The rationale behind this stance can be gleaned from the remark of the Court in AF v Secretary of State for the Home Department [2009] 3 WLR 74: ‘… the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the EC[t]HR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. …’. Lord Irvine put this view down to the judiciary’s failure to appreciate the division of labour built into the Act. Under the Act, the judiciary’s job is to deal with legal issues arising from Convention rights. Political issues with EU institutions, the ECtHR included, are matters for the Foreign Office. In Parliament’s view, the ECtHR is a political organisation. Whereas in the eyes of the judiciary, the ECtHR is a legal institution which lies within an European judiciary. In my view, his Lord Irvine has not articulated a much more fundamental and deep seated reason underlying the court’s view on the interpretation of s 2(1). That reason concerns Britain’s place in Europe.

About 40 years ago, the then conservative prime minister Edward Heath took Britain into Europe, joining what was then the European Common Market. That was a controversial move. That controversy remains to this day. This is evidenced by the upcoming UK referendum on her EU membership. In terms of geographical position, the British Isles is detached from the European continent. Despite of the fact that English is a branch of Germanic language, in terms of cultural heritage Britain probably feels she has more in common with the United States just across the Atlantic than continental Europe. Therefore, even Britain shares a history with continental Europe, whether Britain is part of Europe has been a vexed question. Add to this was Germany’s invasion, though unsuccessful, of the British Isles during World War II. That experience has probably left a scar on the British psyche. Therefore any reservation the UK has about continental Europe is understandable. But while there is a significant of portion of the UK population resists being fully European, there is also a significant number of people in the UK who holds a positive view of Britain’s EU membership, particularly the business sector. Again this is understandable. The EU is a formidable economic powerhouse. In production terms, it rivals the United States. That said, Britain’s EU membership, or more precisely the extent of Britain’s EU membership, remains a highly charged political issue which evokes deep emotion, at least in some quarters.

It should not come as a surprise therefore if a significant section of the UK judiciary favours much greater British involvement in Europe than that envisaged by s 2(1). These judges has brought their personal political views to bear on judicial decisions. This hypothesis goes some way to explain why the UK judiciary has been so willing to subsume the Supreme Court under the ECtHR. This is against the backdrop that the judiciary has a clear understanding of Parliament’s intent regarding s 2(1). Senior members of the judiciary are members of the House of Lords, which voted on the Human Rights Bill. To say members of the Lords are unclear if not ignorant of the legislative intent of s 2(1) des beggar belief. In subsuming the Supreme Court under the ECtHR, the judiciary has merged the UK judicial boundary into that of an European judiciary. As Lord Irvine pointed out in his lecture, the Act is a constitutional document. The UK judiciary has thus crafted a constitutional structure which is not only totally at odds with the intention of Parliament as expressed in s 2(1), but also ironically unconstitutional. If this is indeed the case, the judiciary has no mandate to do so. In an advanced parliamentary democracy such as the UK, law is a product of politics, of course. But there is an important difference between law being a product of politics and law being politics itself. If the judiciary chooses to go down the path of the latter, it will be a disturbing development.