A special status for human rights
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9 April 2014
Rabinder Singh suggests how the European Convention on Human Rights can be successfully incorporated into UK law. Rabinder Singh is a barrister at 4-5 Gray's Inn Square. His book, The Future of Human Rights in the United Kingdom, was published by Hart Publishing on 26 September.
It may seem perverse, but a century which has seen unprecedented barbarism can also be regarded as the "age of rights". Since World War Two, the age-old problem of whether there are human rights and where they come from has been largely avoided, if not resolved, by the fact that the international community has come to accept a set of principles as having a global application.
In a process beginning with US president Franklin D Roosevelt's Four Freedoms, through the Universal Declaration of Human Rights to the two UN covenants which implemented the declaration, the world has come to adopt an international bill of rights.
Regional systems for the protection of human rights have also been established in Europe, the Americas and in Africa.
It was a Labour government which helped to draft the European Convention on Human Rights after WWII and which was the first to sign the convention. It was a Labour Government that in 1966 accepted the optional procedure which enabled individuals to take their complaints to the European Commission of Human Rights. It was a Labour government that in 1976 ratified the two
UN Covenants. Now the new Labour government has announced that it will incorporate the European Convention into the laws of this country.
This will enable people to vindicate their rights under the convention in UK courts without having to go to Strasbourg. But it will also involve UK courts adjudicating on human rights issues in a way in which they have not done before. This has led some on the left to question the legitimacy of the judicial enforcement of human rights in a democracy.
Yet many countries which share the same democratic mould as this country have given power to judges to enforce charters of fundamental rights. The US got there first. Many countries in the Commonwealth have followed suit. Most of the member states of the EU have either enacted their own bill of rights, or incorporated the European Convention, or both.
In the US, judicial enforcement of human rights is legitimate for two reasons. It keeps the democratic process pure by ensuring that everyone has freedom of speech. It also protects what Justice Stone in the 1930s called "discrete and insular minorities" who cannot protect themselves adequately through the franchise. The judges are merely supporting democracy, not supplanting it.
The approach I advocate would lead the judges to adopt greater vigilance in cases where the rights of minorities are affected. In the case involving gays in the armed forces, our courts were invited to accept that, because Parliament had considered the policy of discharging homosexuals from the armed forces and apparently approved it, there should be an even higher threshold imposed before it could be impugned. But to have adopted that approach would have been to ignore completely the case's human rights dimension.
A due respect for human rights would lead to the contrary conclusion - the view to which the US Supreme Court came in the late 1930s that, while economic decisions would be left to the other branches of government provided they satisfied a "rational basis" standard of judicial scrutiny, where the rights of minorities were at risk, the courts should apply a "strict scrutiny" standard of review. This required the government to show that a restriction on civil liberties was narrowly tailored to serve a compelling public interest such as national security.
Judges are not susceptible to the same day-to-day pressures as politicians. Nor are they necessarily concerned with whether someone has a vote to cast; indeed, it may be that they should intervene precisely because someone does not have a vote.
The UK already has a fundamental law, EC law and in particular the EC Treaty, and we have judges, both at national courts and at the Court of Justice in Luxembourg, who are already called upon to give effect to that fundamental law in priority to Acts of Parliament.
As long as human rights lack prominence in our legal system, there will be a two-tier constitution: some rights, those protected by EC law, which are mainly commercial, will continue to enjoy a favoured status, whereas human rights will have no special status. This should not be acceptable to a progressive government.
So how should incorporation of the convention be achieved? One model for incorporation which the Government is apparently considering is the New Zealand Bill of Rights. This is remarkable from the perspective of British constitutional traditions, because it is made expressly subordinate to all previous (not only future) Acts.
The traditional rule is that a later Act supersedes an earlier one if there is an inconsistency between them. This is sometimes called the doctrine of implied repeal. There is no reason why this should not apply to an incorporation Act.
If a decision of the courts were really thought to offend against what Parliament itself understood to be the correct answer to a human rights problem, it would be open to it to overrule the courts. I am not suggesting that courts should be able to ignore Acts passed after the incorporation Act, only that they should be able to prefer the incorporation Act to earlier legislation in the event that an interpretation of the earlier Act consistent with the incorporation Act is impossible.
If the doctrine of implied repeal can operate (as it does) in the context of Acts to do with mundane matters such as sewers and drains, surely it should be allowed to operate in the field of human rights, which are, by definition, fundamental?