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Political Constitutionalism and the Human Rights Act
Richard Bellamy*
Many commentators portray the Human Rights Act (HRA) as marking the demise of Britain’s Political Constitution’. This article argues otherwise. The HRA need not hand over supremacy for rights adjudication from the legislature to the courts. First, the HRA brings ‘rights home’, strengthening in certain respects domestic rights instruments vis-à-vis the ECHR. Second, sections 19 and 4 of the Act maintain and potentially enhance Parliament’s scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review more generally can be assimilated to a system of ‘weak’ review whereby courts defer to the legislative ‘scope’ determined by Parliament and are restricted in their independent determinations to the judicialsphere’ of the fair conduct of the case at hand. Such ‘weak review’ has always been necessary. However, the HRA potentially reinforces judicial deference by giving it a stronger statutory basis. That the HRA could strengthen rather than undermine political constitutionalism need not mean it does or will do. However, the implication of this article is that it ought to be regarded as so doing, with the judiciary acting accordingly.
The UK has long presented scholars of constitutionalism with a puzzle.^1 Despite never having had an entrenched written constitution, it can claim to be the inspirer and originator of two key elements of modern `legal constitutionalism’: the separation of powers and a bill of rights. Book XI Chapter 6 of Montesquieu’s De l’Esprit des Loix , which drew on English sources and took the English constitution as its model, is commonly regarded as the urtext of the former, while the 1689 Act Declaring the Rights and Liberties of the Subject and Settling
Professor of Political Science, University College London (UCL). I am grateful to Adam Tomkins, Mads Andenas, Jeff King and especially Nicholas Bamforth for their detailed comments and to Aileen Kavanagh and Neil Walker and Oliver Gerstenberg and Murray Wesson respectively for discussions at seminars at the Edinburgh and Leeds Law Schools. Research for this article was undertaken at the Centre for Advanced Study in Oslo as part of the project on ‘Should States Ratify Human Rights Conventions?’. (^1) Some of the most salient features of the UK/British constitution derive from Scotland, Northern Ireland and most recently Wales possessing distinctive legal and political arrangements. However, the aspects discussed here can largely be captured by talking of the UK as a whole, although certain commentators cited in this paragraph were writing before the Act of Union with Scotland of 1707 or incorrectly employ ‘England’ as a synonym for the UK.
the Succession of the Crown offered the template for the latter. Yet, from more or less the same period, ‘parliamentary sovereignty’ emerged as the distinctive constitutional feature of the UK – a characteristic that commentators from the late eighteenth century onwards have believed negated, or at least trumped, both of these attributes of a legal constitution. As Dicey, who became this doctrine’s chief ideologist, famously (and approvingly) noted, there is ‘in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists’.^2 With the highest court part of the House of Lords and the Lord Chancellor a member of the executive, judicial separation was also partial True, some commentators – notably Tom Paine – considered these British peculiarities effectively meant that the UK had no constitution at all.^3 On this account, the paradigm of constitutionalism had passed from Britain to the United States. But from Edmund Burke onwards, a host of defenders of the Westminster system have regarded it as offering a distinct and superior model of ‘political constitutionalism’ that protects British liberties far more effectively than the paper parchment of a `legal constitution’ might. Has this all changed with the Human Rights Act (HRA) and the subsequent creation of a Supreme Court separate from Parliament and government, which to some degree it prompted? Passed in 1998, the HRA empowers courts to review legislation for compliance with the rights enshrined in the European Convention on Human Rights (ECHR) – albeit in what has been called a ‘weak’ form that does not allow courts to disapply the law, but does require them to either interpret legislation in complaint ways or declare it to be incompatible.^4 Many scholars have regarded this development as the most significant of the various constitutional reforms carried out in the UK over the past decade.^5 However, the precise nature of that significance remains a matter for dispute. Some have regarded it as ‘an unprecedented transfer of political power from the executive and legislature to the judiciary’, that for either good or ill has undermined parliamentary sovereignty, the capstone of the
(^2) A V DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, 197-8, 10th edition (MACMILLAN 1959) 3 T. PAINE, ‘THE RIGHTS OF MAN, PART I’ IN POLITICAL WRITINGS , ED. B KUKLICK, 81, 131 (CAMBRIDGE UNIVERSITY PRESS 1989) 4 On ‘weak’ versus ‘strong’ judicial review, see J. Waldron, The Core of the Case Against Judicial Review , 115 YALE L. J. 1346, 1355-6 (2006), who assigns the HRA to the first. This term is also used by Mark Tushnet, Alternative Forms of Judicial Review 5 , 101 MICH. L. REV. (2003). As we shall see, others dispute this distinction. The other, equally significant, developments are devolution, membership of the EU and the changes to local government. So far, no scholar has adequately assessed all four and the interesting and complex ways they interrelate, though at least one scholar - V. BOGDANOR, THE NEW BRITISH CONSTITUTION (HART
- 62 - has argued that the HRA can be seen as the ‘cornerstone’ of all these diverse developments – something most reviewers of his book have doubted. As I share this scepticism, apart from a few remarks on both the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ), I shall be restricting my analysis to the HRA.
but because we regard political means as offering securer safeguards for them. Consequently, it ought to be possible to reconcile political constitutionalism with something like the HRA’s attempt to enumerate them in an ordinary statute and offer qualified protection by the courts. I should note that some have seen the HRA and parallel developments in other commonwealth countries as giving rise to a new model of constitutionalism that balances legal and political constitutionalism in a novel way that offers an alternative to both.^13 By contrast, I believe it is more accurate to say that just as different forms of legal constitutionalism give greater or lesser weight to the legislature and popular sovereignty in amending or deciding constitutional questions, so different forms of political constitutionalism have allowed greater or lesser degrees of judicial independence and discretion. Both kinds of constitutionalism allow for some balance and there is nothing new in that. 14 The crux is where supremacy lies – with the legislature, as political constitutionalists desire, or the judiciary, as legal constitutionalists wish, and how far does that make judicial deference to Parliament a central feature of how judges conceive of their role. On this account, therefore, the crucial test with regard to the HRA from a political constitutionalist perspective is whether or not it renders legislative supremacy redundant.^15 My central claim is that it need not do so. I start with a brief outline of political constitutionalism. Subsequent sections then argue that the HRA need not, as a matter of either logical or practical necessity, replace it with legal constitutionalism – indeed, it potentially buttresses the role of Parliament. First, the HRA brings ‘rights home’, strengthening in certain respects domestic rights instruments vis- à-vis the ECHR. Second, sections 19 and 4 of the Act maintain and even enhance Parliament’s scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review more generally can be assimilated to a system of ‘weak’ review whereby courts defer to the legislative ‘scope’ determined by Parliament and are restricted in their independent determinations to the judicial `sphere’ of the fair conduct of the case at hand. Such ‘weak review’ has always been necessary.
(^13) E.g. Gardbaum, supra note 8 and Reassessing the New Commonwealth Model of Constitutionalism 8 I-CON 167 (2010) 14. 15 See BELLAMY^ supra^ note 12, 5-6, 10. For example, it is the belief that it does that leads Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries , 38 WAKE FOR. L. REV. 813, 814 (2003) sorrowfully to conclude that the HRA and parallel developments elsewhere has simply withdrawn the Westminster model from sale, a view shared more positively by BOGDANOR supra note 5, among others.
However, the HRA arguably reinforces judicial deference by giving it a stronger statutory basis.
Political Constitutionalism Within the British context, political constitutionalism has hitherto been associated with the seminal article of J. G. A. Griffith^16 and seen mainly as a description of the UK political system.^17 More recently, a number of scholars have sought to stress its normative aspects and deeper historical roots and to offer it as a more generally applicable jurisprudential model rather than just a defence of the peculiarities of the British constitution.^18 Although there are significant differences between these various accounts in terms both of focus and starting point, these divergences can largely be put to one side for the purposes of this article. My primary objective here is to consider the plausibility of political constitutionalism in practice and only secondarily to defend its normative attractions.^19 To this end, I shall offer an ‘ideal type’ of political constitutionalism that draws together the convergent descriptive and normative elements of the various versions on offer and briefly indicate how this model could be presented as offering a plausible view of the constitutional potential of the UK political system pre-HRA. Five key and related features characterise the ‘ideal type’ of political constitutionalism. First, political constitutionalists contend there are reasonable disagreements about constitutional essentials, including rights. Among other matters, we disagree about the sources of rights – their philosophical foundations; the subjects of rights, or who possess them, where and when; their status with regard to other values, such as utility; their scope – how far given rights might extend and create obligations on others; the ways
(^16) J.A.G. Griffith, The Political Constitution 42 MLR 1 (1979) (^17) E.g. D.OLIVER, CONSTITUTIONAL REFORM IN THE UK (OXFORD UNIVERSITY PRESS 2003) 21 (^18) BELLAMY supra note 12 and ADAM TOMKINS, OUR REPUBLICAN CONSTITUTION (HART 2005) have, along with Griffith supra note 16, come to be seen as prime normative statements of political constitutionalism as applied to the UK – see G. Gee and G. C. N. Webber, What Is a Political Constitution? , OJLS, advance access April 14 2010. Also highly important on the more descriptive side is the work of Keith Ewing, e.g. supra notes 3 and 7. However, though none of them uses the term, I think one can also include among normative theorists of political constitutionalism J. WALDRON, LAW AND DISAGREEMENT (OXFORD UNIVERSITY PRESS 1999), who at various points associates his argument with a ‘commonwealth’ model of constitutionalism, T. CAMPBELL, LEGAL THEORY OF ETHICAL POSITIVISM (DARTMOUTH 1996), and M. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (PRINCETON UNIVERSITY PRESS, 1999). A useful collection that gathers together many of these names in a discussion of the HRA is the somewhat mistitled volume edited by T CAMPBELL, K. EWING AND A. TOMKINS (EDS) SCEPTICAL ESSAYS ON HUMAN RIGHTS (OXFORD UNIVERSITY PRESS 2001). 19 See BELLAMY supra note 12 for such a defence.
making, sovereign power must reside in democratic institutions that embody a plausible conception of political equality. Moreover, as Waldron also notes,^25 it is important for the political constitutionalist not just that the source of law be democratic but also that the business of recognising laws by courts and lawyers be reasonably clear and open to lay people, not simply an arcane endeavour of the legal profession. For a democrat, the criteria of legal validity need to be understandable by the citizens whose property the law is. This concern applies particularly to the notion of judge made law – not least because of potential mystifications that arise when the law seems to be a creature of judicial discretion and gets defined through judges exercising their private judgments about the merits of particular cases rather than via settled parliamentary processes. Fourth, political constitutionalists regard courts as being both less legitimate and less effective mechanisms than legislatures within working democracies, such as the UK, for reasoning about the most appropriate constitutional scheme of rights. They insist that it is important to ensure not only that the outcomes of any decision procedure embody the equal concern and respect for all individuals as autonomous agents that motivates contemporary theories of rights, but also that the process whereby such decisions get made exemplifies such a commitment to the equal status of citizens. Indeed, they are inclined to believe that only such an equality regarding process will secure appropriately equitable outcomes – or could legitimately resolve disagreements about what such an outcome (or process) could be. When it comes to both process and outcome, they claim democratic legislatures prove superior to courts. Two features figure particularly strongly in the comparisons political constitutionalists draw between the two: the deliberative qualities of legislatures compared to courts, and the accountability of legislators to citizens. In both cases, political constitutionalists challenge the legal constitutionalist’s claims that the legal context and independence of courts are advantages rather than disadvantages for fair and impartial reasoning about rights. 26 On the one hand, they argue that the need for courts to accommodate both extant law and to consider only those parties with legal standing in the particular case, tends to make them less apt than legislatures to take into consideration all the moral and practical considerations relevant for collective decisions. On the other hand, they see the electoral accountability of legislators as giving citizens political equality as autonomous reasoners and sources of information about rights, strengthening their sense of ownership of rights decisions and enabling them to ensure
(^25) Waldron, supra note 24, 691-97. (^26) See Griffith supra note 16, 16, 20; Waldron supra note 4, TOMKINS supra note 18, 27-30, 64-5 and BELLAMY supra note 12, especially Part 2.
the full range of concerns are taken into account and appropriately weighed. In both cases, the electoral incentive of parties to build a coalition of voters capable of commanding a majority, and either to criticise and offer an alternative to the incumbent parties or defend themselves against such criticisms, means that a continuous balance of power exists between government and opposition. This balance serves to aid consideration of alternatives and curb abuses of power. By contrast, courts fail to offer as equal a chance to all citizens for their views and concerns about the collective provision and protection of rights to be counted, weighed and challenged. Indeed, because the law is a more restricted forum than legislatures, with entrenched bills of rights favouring the status quo, strong constitutional review has a tendency to favour the privileged over the unprivileged. As the few large n studies that have been carried out in this area indicate, within established democracies rights-based judicial review by constitutional courts has invariably been a means for blocking rather than promoting progressive social reform. Hegemonic groups have successfully argued that such measures impose coercive restrictions on individual civil rights.^27 Indeed, the record of such courts as defenders of civil rights has overall proved no better and on occasion far worse than legislatures for similar reasons – they allow powerful interests an unequal chance to ‘trump’ collective decisions in the name of constitutional rights.^28 But, as political constitutionalists note, if rights claims have already been ‘played’ in the legislative process, then such judicial ‘trumping’ is an illegitimate form of double-counting. There are no trumps left to play if they have already been duly considered by the legislature.^29 Fifth, as a result of all the above, political constitutionalists affirm that the rights determined by legislators within legislation should be superior to the decisions of courts. Judicial decisions should be guided by legislation and courts should not have the power to strike down legislation on substantive as opposed to procedural grounds. The Supreme Court on constitutional issues, including rights, should be parliament. Two important clarifications need to be entered and underlined at this point. Both are crucial to the analysis of the sections that follow and the assessment of whether the HRA and political constitutionalism are compatible. First, as noted above, although political constitutionalists are sometimes dubbed ‘rights-sceptics’ none – so far as I am aware – deny that individuals possess rights (even if they offer different accounts of the moral and other
(^27) See R. HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (HARVARD UNIVERSITY PRESS, 2004). 28 G. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?, ( UNIVERSITY OF CHICAGO PRESS, 1991); TUSHNET 29 supra note 18, Ch. 6. WALDRON supra note 18, 12; BELLAMY supra note 12, 37-8.
they also fail to motivate citizens and legislators to look at rights in the round, as part of a programme of government that takes into account the full range of preferences on a given issue and the way it relates to other important issues. That purpose is best achieved via a system of representative democracy where all citizens can participate as equals in public processes that select and can hold accountable the prime power holders. As a result, the key decision-makers have incentives to treat the views and concerns of those who elect them with equal concern and respect. The claim of political constitutionalism is that parliamentary democracy possesses constitutional qualities that make the fear of a populist government giving rise to a tyrannous majority highly tendentious. The objection to judicial review is at its heart an objection to the lack of such constitutional qualities within legal constitutionalism. These are wanting because of the absence of accountability and responsiveness by the judiciary, combined with the narrowness and unrepresentative nature of the considerations they view as relevant. These may be good qualities in ensuring consistency in the application of the law, but are poor qualities for making laws. Much of the recent debate between political and legal constitutionalists turns on how realistic as well as legitimate it is to see the judiciary as ultimately the servants of parliament – either ever, or post-HRA. It is to this issue that I now turn.
The HRA: From Political to Legal Constitutionalism? What might be termed the basic case for regarding the HRA as an extension of political constitutionalism is, in formal terms, relatively straightforward. Indeed, most commentators - including those who believe it de facto marks a shift towards legal constitutionalism - accept that the drafters of the HRA went to considerable lengths to render the judicial protection of Convention rights compatible with the Diceyan view of parliamentary sovereignty cited above,^35 which we have seen forms the key aspect of Britain’s political constitution. This doctrine is usually identified with two main features: first, that Parliament can legislate in any way or area it pleases, including if necessary amending and repealing any existing legislation, and, second, that no other institution may ‘disapply’ parliamentary legislation. At the simplest level, the HRA appears to meet the first criteria in being an ordinary piece of
(^35) See Nicholas Bamforth, Understanding the Impact and Status of the Human Rights Act 1998 within English Law , Global Law Working Paper 10/04, http://www.law.nyu.edu/global/workingpapers/2004/ECM_DLV_015806, xxii, on the one side, and A. KAVANAGH, CONSTITUTIONAL REVIEW UNDER THE UK HUMAN RIGHTS ACT (CAMBRIDGE UNIVERSITY PRESS, 2009), 310-13, on the other.
parliamentary legislation – it has no special, entrenched status – and, as such, can be revised or withdrawn on the basis of a parliamentary majority. Meanwhile, as we shall see, section 4 of the Act, which allows the court to issue a ‘declaration of incompatibility’ with convention rights, has been drafted so as to maintain the second criteria. For such declarations do not in themselves disapply the offending legislation – only Parliament can do that. Needless to say, though, many commentators have found the basic position a little too simple and formal. I shall begin by looking at the relationship between the HRA and the ECHR and the European Court of Human Rights (ECtHR) to see if it offers a strengthening of domestic control over rights congenial to a political constitutionalist. I then turn to the other main provisions of the HRA and explore how far a ‘weak’ form of judicial review that preserves legislative supremacy on rights questions is plausible.
Bringing Rights Home? The HRA and the ECHR Some have objected that repeal of the HRA would be tantamount to withdrawal from the ECHR.^36 However, although Article 1 of the Convention requires contracting states to secure Convention rights within their jurisdictions, it does not specify how this might best be done. The primary domestic mechanism need not be judicial – indeed, was not in either the UK or several Nordic countries for over 50 years. Of course, it might be argued that the ECHR itself undermines the political constitutionalist position, with the HRA simply building on that concession. However, formally the Convention is an international agreement between sovereign states from which they can withdraw or could potentially seek to renegotiate, as has periodically occurred when adding protocols or changing the composition and working of the ECtHR. This status has also allowed the UK not to sign up to all protocols to the Convention and to hold reservations with regard to particular Articles. Few would deny that withdrawal from the ECHR would have such grave consequences as to be highly unlikely – adversely affecting the UK’s international standing and moral legitimacy and arguably involving leaving the EU as well, for which adherence to the ECHR is a requirement. But although those advocating this position tend to be on the margins of British political life, the constraints on parliamentary sovereignty are political not legal and such as to leave the first criterion identified above intact.^37
(^36) G. Phillipson, Deference, Discretion and Democracy in the Human Rights Act Era , CURRENT LEGAL PROBLEMS, 40, 62 (2006). 37 As remarked supra note 9, a strong faction within the Conservative Party – including both the current Foreign Minister and the Prime Minister - have long advocated formally entrenching UK sovereignty vis-à-vis the EU,
subject to indirect domestic democratic pressures than an international court is likely to be. Even if formally independent, national courts form part of the domestic political system. Their membership draws on the same broad ‘political class’ as national politicians – a significant number of whom may even have practiced law alongside them, and the selection of judges is subject to various forms of direct or indirect political control and influence. Moreover, a far thicker public sphere exists at the national compared to the international level. Consequently, domestic courts come under greater scrutiny by the media and a broad range of interest groups, and so are more aware of public opinion than international courts. As a result, they tend to feel more obliged than their international counterparts to legitimise themselves and gain acceptance for their decisions among the wider public. As research on the US Supreme Court indicates, courts follow the polls – or at least sustained, national electoral trends. 41 That said, the ECtHR continues to cast its shadow over the HRA. In particular, section 2 (1) of the HRA requires domestic courts to ‘take into account’ any relevant Strasbourg jurisprudence relating to a judgment involving a Convention right. That could be quite a weak instruction, strictly applying only to cases where the UK was a party. In fact, the courts have accorded Strasbourg jurisprudence a binding status more generally.^42 Arguably, that policy follows from the aim of avoiding litigation before the ECtHR. Moreover, domestic courts have deferred to Strasbourg as defining what Convention rights require.^43 Since their role under the HRA is simply to ensure compliance with these rights, they have deemed it inappropriate for them to challenge or outstrip the ECtHR rulings on what an acceptable standard of observance involves. However, that has not meant that Parliament need treat ECtHR as a ‘ceiling’ rather than a ‘floor’, even if domestic courts have done so. Judges have simply felt (and, pace certain legal constitutionalist commentators,^44 from a political constitutionalist position rightly so) that it is for Parliament rather than them to decide whether it wishes to elaborate legislation that goes beyond what the ECtHR deems necessary to protect rights. So, while the HRA does not weaken the necessity of the British parliament to stay compliant with ECtHR decisions, the deference of domestic courts to
(^41) See R. A. Dahl, Decision-making in a Democracy: The Supreme Court as National Policymaker , 6 JOURNAL OF PUBLIC LAW 279 (1957) ; W. Mishler and R. S. Sheehan, The Supreme Court as a Counter- majoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions , 87 AMERICAN POLITICAL SCIENCE REVIEW, 87 (1993) 42 43 R. v. Special Adjudicator, ex parte Ullah^ [2004] UKHL 26. 44 Ibid at 20. E.g. J. Lewis, The European Ceiling on Human Rights , PUBLIC LAW 720 (“007)
Strasbourg also creates a potential break on their judicial activism and has arguably encouraged them to develop a domestic deference principle giving Parliament lee way as to how it might secure a given right. Though some argue such deference hinders the development of distinctive British human rights jurisprudence,^45 to a degree that can reinforce political constitutionalism. However, even where the court does not go beyond the UK’s commitments under the ECHR, its role is to make that commitment more present and continuous. As we shall see, a key issue has been the recognition, in part mandated by a Strasbourg decision,^46 that proportionality rather than a looser norm of reasonableness now be applied when Convention rights are at stake.^47 Meanwhile, the court has acknowledged that not all ECtHR jurisprudence necessarily applies to the UK, having been formulated with regard to cases involving circumstances that do not obtain in Britain, or is always sufficiently clear or well- reasoned as to be followable.^48 There are also cases where as yet there is no relevant Strasbourg case law. For the reasons noted above, it may still remain not just symbolically or formally but also in many ways substantively more in line with political constitutionalism for such judgments to be made by a domestic rather than an international court. Even in cases where the court sees itself as doing no more than acting as Strasbourg would at one remove, it will be doing so as the agent of a UK political order and be subject to the pressures from Parliament and British public opinion from which, to a large extent, it derives its authority and legitimacy.^49 And when it acts in cases where Strasbourg either has yet to go or has done so in ways that seem unclear or inappropriate, the court can give a steer that reflects the British context, including those circumstances that reflect its distinctive political processes. For example, at least some Law Lords have stressed that the HRA does not ‘authorise the judges to stand in the shoes of Parliament’s delegates, who are decision makers’^50 The possibility does exist, therefore, for the HRA to ‘bring rights home’ in ways that could potentially strengthen political constitutionalism vis-à-vis the ECtHR. The crux is whether in doing so the HRA must necessarily weaken political constitutionalism in other ways and
(^45) E.g. R. Masterman, Aspiration or Foundation? The Status of the Strasbourg Jurisprudence and the “Convention Rights” in Domestic law , in H. FENWICK, G. PHILLIPSON AND R. MASTERMAN (EDS) JUDICIAL REASONING UNDER THE UK HUMAN RIGHTS ACT. (CAMBRIDGE UNIVERSITY PRESS
- 46 47 Smith v United Kingdom^ (2000) 29 EHRR 493. 48 R. (Daly) v. Secretary of State for the Home Department^ [2001] UKHL 27. 49 Kay v. Lambeth London Borough Council^ [2006] UKHL 28, 44,^ Brown v. Stott^ [2003] 1 A.C. 733. E.g. Lord Hoffmann in R. (Alconbury) v. Secretary of State for the Envirinmnet, Transport and the Regions [2001] WLR 1389, para 76, though compare the more cautious Lord Slynn para 26. 50 R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, para. 33.
others as to what they intend by any piece of legislation.^52 The standard case for paying attention to such statements is that the intentions of those who author a legislative text should be regarded as informing its authority. Yet, it is part of the political constitutionalist case that parliament and its committees allow many voices to enter into the legislative process, with the results the product of a dialogue between them involving the mutual modification of many individual positions. Therefore, the authors of legislation are not individual members so much as the legislative body as a whole. Given that Parliament is not a coherent, unitary actor, it is doubtful that it makes any sense to talk of its intentions. Least ways, the only sensible way we can access those intentions is by paying attention to the plain meaning of the legislative text itself rather by attending to individual interventions in parliamentary debates. A similar problem arises with the offering of reasons by legislatures. Legal constitutionalists sometimes contrast courts and legislators in this regard and argue as if legislation is thereby unreasoned. Again, the reasoning occurs in the legislative process, but the reasons of the legislature as a whole can only be those embodied in the legislation itself. For the reasoning of the individual members of the legislature may well have differed as to why the legislation represents an appropriate reading of rights on this matter. Like multimember courts, their agreements are likely to be ‘incompletely theorised’,^53 the product of a convergence on a policy that can seem reasonable from a number of points of view. 54 Some of these difficulties have potentially been addressed by the establishment of a Joint Committee on Human Rights (JCHR) two years after the HRA. The JCHR reports to both Houses on the compatibility question, taking evidence from Ministers, government departments, NGOs and legal experts, suggests amendments where it deems them necessary and has pushed the government towards outlining its views on this issue in the Explanatory Notes published with every government Bill. The reports have ensured rights considerations get raised in parliamentary debates and are often referred to in that context. As a result, it cannot be denied that the rights enumerated in the HRA have been given due consideration in the framing of legislation. So, there are good grounds for regarding the legislative text as embodying the legislature’s due view of the balance of rights considerations with regard to a
(^52) Though since Pepper v. Hart [1993] A.C. 593 courts have accepted they can refer to the parliamentary record in Hansard as an aid to statutory construction, subsequent decisions have given Ministerial statements less weight than the text itself. See 53 Wilson v. First Country Trust [2003] 3 W.L.R. 568. C. R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT (OXFORD UNIVERSITY PRESS, 1996) 48-50. 54 WALDRON supra note 18, ch. 6.
given policy. Legislation is not, as some have characterised it,^55 simply the product of the unprincipled trading and aggregation of interests to promote public utility regardless of its impact on rights. Rights and interests have both played a role in the legislative process. Nevertheless, two problems remain in regarding this feature of legislation as rendering the HRA fully compliant with political constitutionalism. First, a legal advisor plays a crucial role in the JCHR’s deliberations. Their advice consists largely of second- guessing the likely judgments of the courts, be they domestic or the ECtHR. In this way, as Alec Stone Sweet pithily put it, ‘governing with judges’ all too often ‘means governing like judges.’^56 Yet, as we saw, a strong part of the political constitutionalist case lies in asserting the superiority of legislative over judicial decision-making on the moral and political questions surrounding rights. To the extent parliament feels constrained by legalistic reasoning in its rights deliberations, this alleged advantage of political over legal constitutionalism is diminished.^57 However, arguably this point proves over stated. For example, the Communications Act 2003 ,^58 which banned political advertising in the broadcast media except for specially regulated party political broadcasts and party election broadcasts, was the subject of two reports by the JCHR, as well as being scrutinised by a specially appointed Joint Committee of both Houses of Parliament. As a result, Parliament believed that though the legislation potentially breached ECHR art. 10 concerning freedom of expression, they would proceed nonetheless, as permitted under section 19. Indeed, it could be considered that Parliament’s deliberation of the issue proved important in persuading the House of Lords to unanimously rule that courts should regard the law as compatible with ECHR art. 10 in a subsequent case.^59 As Adam Tomkin’s has remarked, this example shows how Parliament can use the new procedures to influence the courts rather than the other way round, with the HRA promoting precisely the sort of legislative deliberation about rights political constitutionalists advocate.^60 Some commentators still feel, though, that a second and more intractable problem remains. For no matter how thorough and independent Parliament’s deliberations of rights
(^55) DWORKIN 1996 supra note 22 (^56) A. STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (OXFORD UNIVERSITY PRESS, 2000) 204. 57 58 See Hiebert^ supra^ note 8; D. Nicol,^ The Human Rights Act and the Politicians , 24 LEG. STUD. 451 (2004). 59 Communications Act 2003 (U.K.), 2003, c. 21.ss 319-21. R. (Animal Defenders International) v. Secretary for Culture, Media and Sport [2008] UKHL 15, especially Lord Bingham at paras. 7-21. 60 A. Tomkins, The Role of Courts in the Political Constitution , XL UNIVERSITY OF TORONTO L. J. 1, 5, 19 (2010).
judgment that the current detention scheme involved unreasonable discrimination against non-UK citizens, it took several months to respond, adopting the new control order scheme following one of the longest ever Parliamentary debates. Meanwhile, the prisoners were only released once the new legislation was enacted so that they could be immediately re-arrested. Rightly or wrongly, Parliament can hardly be viewed as conceding judicial supremacy, therefore. A second reason is political culture – that any government would simply find it politically inexpedient to go against such a court ruling unless they were sure of overwhelming political support in doing so, as was the case when Roosevelt stood up to the Lochner era reasoning of the US Supreme Court.^68 However, to the extent that is true – which given the pre-election commitment of the Conservative Party to repeal the HRA is perhaps highly disputable - this reasoning also is not per se incompatible with political constitutionalism. After all, political constitutionalists value responsiveness to public opinion and if a lack of popular legitimacy explains their compliance rather than a binding constitutional measure that literally gives them no choice in law but to comply, then Parliament’s deference to judicial declarations of incompatibility is in line with the political constitutionalist position. A third reason holds that where such declarations have been issued it was likely that the ECtHR would have made a similar ruling. A failure to comply with a declaration of incompatibility would give prima facie weight to any appeal to Strasbourg and increase the likelihood of the case going against the government.^69 Though some have argued that where there is no existing case law the ECtHR might apply a wider ‘margin of appreciation’ than the domestic court, this is not probable. Not only, as we saw, have the domestic courts been guided by ECtHR standards in their judgments, but also the fact the highest domestic court had ruled the legislation as contravening a Convention right would almost certainly be taken as evidence by the ECtHR that it had done so. Nevertheless, we have seen the ECHR regime per se is not incompatible with political constitutionalism. More troubling from the political constitutionalist perspective, though, is the fourth reason that the court has only issued declarations of incompatibility in those cases where the judges concerned felt certain the government would comply. In other cases, they have used their power of interpretation under section 3 (1) to render legislation compatible with
(^68) M. Elliott, Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and Convention 69 , 22 LEGAL STUDIES 348, 340-XXX (2002). KAVANAGH supra note 35, 284-87.
Convention rights. 70 Indeed, the use of section 3 (1) has been seen by legal and political constitutionalists alike as the aspect of the HRA that poses the greatest potential challenge to parliamentary sovereignty. Many have argued that it largely undermines whatever powers may have been reserved to Parliament under sections 19 and especially 4.^71 Consequently, it proves crucial for the political constitutionalist case to defend a plausible account of judicial deference and weak review in the use of section 3.
_Weak Review and Section 3: the Judicial Sphere’ and Deference to the ‘Scope’ of Legislation_ There are three main concerns with the use of section 3 by the courts.^72 First, some have worried that the injunction that all subsequent as well as preceding legislation be read as Convention compatible goes against the view that no Act of Parliament can bind later Parliaments, with later legislation involving an ‘implied repeal’ of any prior legislation with which it was inconsistent. Second, the ability of the judiciary to interpret legislation in a way they feel is Convention compatible has been seen as allowing them to effectively amend legislation in ways that are contrary to the clear intention of Parliament. Third, as a result, use of section 3 makes sections 19 and 4 largely redundant. With regard to the first concern, the doctrine of ‘implied repeal’, courts have always assumed that in the absence of an explicit repeal of, or challenge to, prior legislation, then it is reasonable to suppose that Parliament wished to legislate in a way that was compatible with existing law. As a result, they have interpreted all new lawsso far as it is possible’ as if that were so. Moreover, under the HRA, the declaration of compatibility under section 19 gives the courts explicit grounds for holding that view. Of course, where they find legislation to be ‘incompatible’ they now have to say so explicitly. It might be argued this still replaces implied’ repeal withexplicit’ repeal.^73 But as we saw, such declarations do not of themselves disapply the law – that remains Parliament’s prerogative. The court must continue to apply the disputed legislative provisions, suggesting that until such time as Parliament decrees otherwise Convention rights do not apply in the area covered by the new
(^70) KAVANAGH supra note 35, 119. (^71) KAVANAGH supra note 35, 318-19, 332-36, 416- (^72) For contrasting accounts of these issues, see Bamforth,, supra note 28 and KAVANAGH supra note 35, ch.
- 73 D. Feldman, The Human Rights Act 1998 and Constitutional Principles 19 LEGAL STUDIES 165-xxx, 178- 80 (1999)
