King's Student Law Review

Introduction:

It was not all long ago, November 2012, that 56% of the British population supported the idea of the United Kingdom leaving the European Union.[1] As the Prime Minister, David Cameron, put it in his speech on the EU referendum, some “of this antipathy about Europe in general really relates of course to the European court of human rights, rather than the EU. And Britain is leading European efforts to address this”.[2] The conservative Home Secretary Theresa May and Justice Secretary Chris Grayling, are currently campaigning to include the abolition of the Human Rights Act 1998 in the Conservative and Unionist Party’s manifesto for the 2015 general elections[3]. But what would this mean for the current protection of human rights in the United Kingdom? Can human rights simply be impliedly repealed like any other act of Parliament or do they form a more rigorous part of our constitutional principles that are inherent in the rule of law, so as to persist even after an abolition of the Human Rights Act 1998? In other words: What exactly are human rights?

 

Human Rights and the rule of law

Traditionally, it has been the rule of law, which had the function of protecting human rights in the English constitution. Bingham accredits the “currency” of the rule of law to A.V. Dicey.[4] Dicey defined the rule of law as: (1) prohibiting punishment which is not based on law and sentenced by the courts, (2) the same law applies to everyone in the same way, (3) protecting civil rights by common law. Thus, at first sight, it seemed that human rights were the third cornerstone of the rule of law; but only at first sight, since in Dicey’s understanding of the rule of law, the courts are concerned with remedies rather than with abstract rights[5] – such as ‘human rights’. For example, although judges have on numerous occasions paid lip service to a right of privacy in English law,[6] the rule of law did not provide for a general right to privacy in common law.[7] Instead, the common law protected privacy through a “scatter gun approach” in tort law, whereby a number of causes of action were fired –  “fired at a problematic case in the hope that one might hit the target”.[8]

Furthermore, recent judgments of the higher courts in England give rise to the assumption that the rule of law protects only procedural human rights, such a right against indefinite detention without trial only for foreigners[9] or the right against torture[10] but not substantive human rights. As Lord Bridge said in X v Morgan-Grampian[11] the rule of law is founded on the concept that Parliament makes the law and the judges interpret it. Thus, the rule of law has to be defined in a common law approach. In R v SS Home Department, Ex parte Pierson,[12] Lord Steyn said at 591: “Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law and the rule of law enforces minimum standards of fairness, both substantive and procedural.” In the words of Raz (1977), this means nothing else than that the laws need to be “capable of guiding the behavior of its subjects”.[13] This principle of a minimum standard of fairness has been followed by Lord Mance in AXA General Insurance v HM Advocate,[14] and further defined with European Court of Human Rights[15] case law by Lord Reed at 918 as requiring “amongst other things, that the relevant domestic law must be adequately accessible and sufficiently precise to be foreseeable in its effects […] and that it should not operate in an arbitrary manner”.[16] From this it can be deduced that the rule of law requires that:

1. “All laws should be prospective, open and clear”,
2. “Laws should be relatively stable”,
3. “The making of particular legal orders should be guided by open, stable, and general rules”,
4. “The principles of natural justice, such as the requirement of open courts, absence of bias and the like must be observed”, and that
5. “The courts should be easily accessible”.

Laws LJ stated in R v Grant[17] that the courts will stop cases where the police acted illegally. Considering R v Maxwell,[18] where the police who covered up crimes by a witness and made false statements to convict criminals, acted contrary to the rule of law, it follows for the rule of law that:

6. “the discretion of the crime-preventing agencies should not be allowed to pervert the law”.

Tomkins doubted that the judiciary was independent because it derives its power from the Crown who it was not willing to punish in M v Home Office [1994] 1 AC 377 for a contempt of court. [19] However, Arden LJ considered in Al-Jedda v Defence Secretary [2011] QB 773 at 795

7. the independence of the judiciary

to be an essential part of the rule of law. Therefore, the author submits, that while the judiciary must be independent in its function as impartial tribunals, in order to be in accordance with the rule of law, it does not need to be independent in its legitimacy.

These are seven of Raz’s (1977) eight principles of the rule of law However, Raz also expects the judiciary under the rule of law to

8. “examine the executive and the legislature to a very restrictive extent.”

As M v Home Office[20] and the Human Rights Act 1998 show, the courts examine the other branches of government, but they do not have the power to strike down laws because “the supremacy of Parliament is still the general principle of our constitution”.[21]  In summary, the rule of law in Raz’s de mininmis definition only protects the right to a fair trial in Article 6 of the Convention. This leads to the absurd result, that even if Theresa May succeeded in abolishing the Human Rights Act 1998, she would still not be able to deport terrorist suspects like Abu Qatada because of the rule of law.[22] Moreover, as the President of the Supreme Court, Lord Neuberger, remarked lately: “We can’t send back nasty terrorists because they might be tortured. Well, even if you think we should be able to be send them back … there’s a UN convention going back to 1948 which says you can’t do that – which stops it on its own, unless we are going to pull out of the UN.”[23]

 

Human Rights and Parliamentary Supremacy

However, since Parliament’s enactment of the Human Rights Act 1998, it is no longer true that human rights are only protected by common law. The courts must read legislation as giving effect to the rights in the European Convention of Human Rights and Fundamental Freedoms[24]^,[25] or make a non-binding declaration of incompatibility[26]. Thus, Lord Steyn claimed that the United Kingdom has assumed a legal obligation to protect human rights.[27] To emphasise their constitutional importance in a democracy, Bingham suggests that the ‘Convention’ rights were now part of the rule of law, since the rule of law is mentioned as a principle in the ‘Convention’s’ preamble.[28] I consider this thesis as a misconception, which undervalues the concept of human rights. The preamble of the Convention refers in the same sentence also to a “common heritage of political traditions, ideals and freedoms”. Human rights are more than just part of the rule of law. Parliament’s legislative supremacy can nowadays only be justified from the political system of Parliamentary democracy.[29] Human rights also protect our “political tradition” as democracies and belong to and legitimate Parliamentary Sovereignty.[30] Human rights with ‘freedom to assembly’ and ‘freedom of expression’ guarantee the formation of opinions, which are the foundation for a healthy democracy.[31] Therefore, it is submitted that if Parliament cannot bind its successors[32] and thus, is not allowed to deprive itself of the legitimacy of Parliamentary Sovereignty, it must guarantee the protection of human rights, which are relevant for a democracy.

 

Human Rights as an independent value system:

Under the first two headings, I have shown that human rights do neither belong completely to one of the two constitutional principles ‘rule of law’ or to ‘Parliamentary Sovereignty’. Therefore, it is submitted that human rights form their own constitutional principle. This finds support in the ‘direct horizontal effect’ of human rights in civil law in Campbell v MGN,[33] where it was held that Article 8 and 10 of the ‘Convention’ are generally applicable in common law ‘breach of confidence’.[34] Moreover, also the German courts decided in Lüth[35] that human rights are an independent value system, which affects all constitutional principles and aspects of the legal system. The same applies to the United Kingdom.

 

Conclusion:

Human rights belong partly to the rule of law, such as the right to a fair trial, and should partly protected politically by Parliamentary Sovereignty, such as freedom of expression and freedom to assembly. These human rights will not be affected by an abolition of the Human Rights Act. However, human rights are an independent constitutional principle as well, which has not been conclusively developed. Even today, we cannot predict the positive effects of human rights on the private law through indirect horizontal effect. Nonetheless, in the words of Lady Hale: “to work out what is, and what is not, compatible with the European convention has brought great benefits to the law and to a great many people.”[36] In order to retain this positive effect of human rights for the future such as the protection of privacy, the author submits that the Human Rights Act should be maintained – it would be a bad bargain to reduce the scope of human rights in exchange for political isolation outside the European Union and the United Nations.

Julian Kulaga

 2^nd Year LL.B. (English Law and German Law)

King’s College London

 

---