Withdrawal in all but name: Government’s response to Parliamentary Committee’s comments on the Bill of Rights Bill

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In this post, Dr Alexander Orakhelashvili discusses the Government’s response to the Parliamentary Committee’s critique of the Bill of Rights Bill

Photo of Dr Alexander Orakhelashvili

A few months ago, I have commented on the Government’s Bill of Rights Bill, and have highlighted a number of ways in which this Bill risks placing the UK in confrontation with the international legal system. I will not repeat the basics and background issues here, but will focus on some points raised in the Government’s response to the Parliamentary Committee.

The Government response suggests that “UK courts are not required to simply follow the approach taken by the Strasbourg Court” (para.11). Furthermore, “The Government disagrees with the Committee’s view that the Bill of Rights will damage the positive dialogue between UK courts and Strasbourg. By encouraging the domestic courts to look at the UK context of human rights, rather than following Strasbourg jurisprudence as a matter of course, we consider that domestic courts will be in a better position to conduct judicial dialogue.” (para.13)

If due regard is had to the proposed Bill’s text, it would not be immediately clear if and how the dialogue conducted in the above spirit would be a positive dialogue. To begin with, the Government is opposed to the retention of the principle of ECHR-compatible statutory interpretation under section 3 HRA and suggests that “Section 3 of the HRA has, in some cases, shifted the balance of power away from Parliament towards the courts.” (para.17) However, it is not clear how, in the conditions of common law adjudication the Government’s own proposed section 3 of the Bill does not risk the same outcome on even stronger terms, given that the proposed section 3 of the Bill alludes to so many different interpretative elements that judicial freedom would hereby be more likely to be enhanced rather than curtailed. Even if the Bill purports to ensure that “courts are not required to read legislation in a manner which may be contrary to Parliament’s intent” (para.17), it would always be courts who would decide what the Parliament’s intention is.

The Government response further suggests that, “Under the Bill, it will continue to be unlawful for public authorities to act in a way which is incompatible with a Convention right, unless, as a result of primary legislation, they could not have acted differently, or they are acting to give effect to incompatible primary legislation or subordinate legislation where the incompatibility is necessitated by primary legislation.” (para.18) This would be to give a direct sanction to public authorities, including courts, to act contrary to UK’s international obligations. At the same time, the approach the Government proposes would be somewhat tautologous, not least because to anyone who believes in the constitutional doctrine on parliamentary sovereignty, courts are bound by the primary legislation anyway. That does not require to be specified in an Act of Parliament. To those who do not believe in that doctrine, the Bill is trying to create a new doctrine of relations between courts and the Parliament, proposing to unilaterally expand its own authority and curtal the courts’ authority (similar to what it proposed to do via the recent bill on judicial review, explained here). That would mean, in its turn, that the Parliament acts contrary to the Constitution.

The use of the phrase “where the incompatibility [of secondary legislation] is necessitated by primary legislation” is bound to create further confusion. In any case, interpretation of all legislation and determination of the relationship between different types of legislation is exclusively within the courts’ gift. Hence, it is not clear to whatever extent the Bill would entail a genuine change from the position that sections 3 and 4 HRA already provide for. The most important change would be that all legislation could be read either as ECHR-compliant or contrary to ECHR, in line with the Government’s position or contrary to it, and that neither legislation could be quashed. The extent of the courts’ interpretative authority in securing any possible outcome from the above spectre would not be affected by the Bill.

The Government response is defending section 7 of the proposed bill (Decisions that are properly made by Parliament), which, were it to take effect, would provide an extensive domestic legislative restriction on the courts’ ability to determine what the Convention rights mean, what the relevant right’s scope is and how those rights interact with each other. All these matters are strictly and exclusively matters of international law, and any domestic legal guidance on these matter is non-existent. If section 7 were to take effect, then courts would be invited to rule that Parliament, when adopting domestic legislation, could determine (or has determined in the relevant case) on conclusive terms that the Convention’s meaning is X and not Y, or that a Convention right obliges the UK to a wider or narrower extent. Parliament would, then, be deemed to have auto-interpreted the Convention, and the Courts would be considered to be bound to acquiesce to such auto-interpretation. The outcome would then be that UK authorities could unilaterally decide what the scope of UK’s international treaty obligations is.

On overall terms, the adoption of the bill would entrench in the UK law the legal position that it is the UK authorities who determine – both conclusively and exclusively – what the European Convention on Human Rights means and requires, and whether UK authorities act in breach of the Convention. This would be the context in which the proposed dialogue with Strasbourg would be conducted. On the plane of UK law, the Bill purports to legitimise legislative intervention into the judicial handling of the issues of interpretation and handling presumptions – ordinarily matters within the courts’ prerogative under common law – to a hitherto unprecedented extent.

Circles could, it seems, be squared. But that is only a part of the problem, because the bill that pretends that a cake could be had and eaten at the same time is bound to generate a wide-ranging confrontation between the UK Government and the Strasbourg Court, before which allusions to domestic legislation are likely to make just as much difference as the provision of domestic court decisions to the International Court has made in the Chagos case. For, with the Bill the Government would be pretending to comply with the European Convention on Human Rights and at the same time reform the UK law as though the UK had withdrawn from the Convention.

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