24th June 2022
In yesterday’s post on this blog, the successive manifesto commitments of the current governing party since 2010 on the Human Rights Act were set out.
These commitments were as follows :-
The 2010 Conservative manifesto (twelve years ago):
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
The 2015 Conservative manifesto (seven years ago):
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
The 2017 Conservative manifesto (five years ago) placed a foot on the ball:
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
And then most recently, in the 2019 Conservative manifesto:
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
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This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.
The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.
The Human Rights Act was to go – replaced, scrapped.
The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.
But.
The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.
The 2019 commitment was only to ‘update‘ the Act.
The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.
The governing party opted for ‘update’ instead.
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The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.
And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,
But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.
To do, in effect, what the 2010 and 2015 manifestos promised.
But do the governing party have a mandate for repealing the Human Rights Act outright?
In other words: is repeal within the scope of an ‘update’?
Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.
But what is stated in a manifesto is not without constitutional consequences.
This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.
This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.
The question thereby becomes whether this proposed ‘Bill of Rights’ is protected by the Salisbury doctrine or not.
If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.
If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.
As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.
Their view may be that “updates” – whatever that means – may be fine, but not outright repeal – because the government cannot point to any mandate for repeal.
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If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.
Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.
A promise to ‘update’ was a lot less alarming to middle-ground voters.
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One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.
And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.
But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.
And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.
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The Salisbury doctrine was exactly what went through my mind when reading the chronological manifesto pledges in the post yesterday. The Lords can stymie this, and they should. I don’t think that this government can get away with setting itself up as a champion of the people against the peers, no do I think the Lords would be cowed by such a ploy.
The thing is since 2019 manifesto was written the libertarian ultras taken control. Raab in particular has seen repealing the HRA as a “holy grail” to be achieved. It also appeals to their core support, and probably only puts off voters who would never vote Tory anyway.
While the reform goes further than the manifesto commitment the ultras will try get it through now because this administration is their best chance. However with Johnson’s increasing weakness as leader there is no guarantee that they will get this through the Commons unamended. Let’s hope they fail.
The 2019 manifesto commitment to ‘update’ includes administrative law as well as the Human Rights Act. This pairing brings together a odd couple: a single and significant act of Parliament with a huge category of public law. Why? Might the government not argue that updating both requires replacing the Human Rights Act?
Well, they can argue it, but they’d have to set out a rational argument,.
The claim that updating administrative law *requires* the repeal of the HRA is a bold one, and it won’t be easy to construct a compelling argument in its favour.
Johnson does not feel bound by the usual conventions of behaviour, constitutional or otherwise, so why should he expect other people to extend that courtesy to him and his government? (Because we are better than him, I suppose, but in game theory terms, we know he is a defector, so why should we cooperate?)
Although its has deeper roots, the Salisbury convention only dates back to the Labour landslide in 1945, when there were concerns that the enormous Conservative majority in the Lords could block their reforms. The Liberals faced a similar problem after their “People’s Budget” in 1909, which led to the 1911 Parliament Act.
There would be a deep irony if this Conservative government were forced to appoint a slew of new compliant peers to get their legislation through. Perhaps that would encourage a future government to fulfill the aspiration set out in the preamble of the 1911 Act to “substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis” which the 1997 Labour government only partly achieved by the House of Lords Act 1999 (which removed most of the hereditary peers, so the House of Lords is now mostly filled with political appointees put in place through a prime minister’s patronage).
It is worth remembering that creating dividing lines is not merely a means for this Government, it is an end. It is their principal strategy for securing support – whether from their own backbenchers, or the media, or the general public – and denying it to others. It is entirely plausible that the Government cares about the HRA / ECHR only inasmuch as it creates an opportunity for more of the same.
Viewed that way, a disagreement with the HoL may be not only possible but desirable for them.
How to counter such a strategy – not just on this topic, but others – is less obvious to me. And I think it is a strategy that must be called out and countered, because our democracy is much the poorer for such tactics.
This whole business is infuriating, because there is no need to replace or amend the HRA to effect any sort of rebalancing of priorities. If courts are creating and relying on authority that is out of step with the will of Parliament, it is open to Parliament to enact clearly written primary legislation which cannot be read down. Domestic law always takes precedence over ECHR authority. Section 4 of the HRA provides for higher court judges to make a declaration of incompatibility if a law cannot be read as compatible. The Supreme Court is always the ultimate arbiter on human rights, but the HRA is written such that they take account of Strasbourg jurisprudence. So give them a law they cannot read down.
I’m astonished that you say;
“Domestic law always takes precedence over ECHR authority.”
“The Supreme Court is always the ultimate arbiter on human rights, but the HRA is written such that they take account of Strasbourg jurisprudence.”
So the Supreme Court is superior to the ECHR (& International Court at the Hague for that matter) according to your understanding of the HRA?
So international agreements made by the UK are meaningless?
Well, has the UK changed the law in response to the unfavourable judgement against us on prisoner voting? The Hirst case was 2005. There’s been nothing but talk. We’ve shown we ca ignore a Strasbourg judgement. We shouldn’t, but we can. A declaration of incompatibility allows courts to apply the law when it is incompatible with ECHR. It is left to Parliament to legislate the change the law, but Parliament is not required to do so. Even on repeal of the HRA, the UK is still bound by the ECHR and claimants can still make their case to Strasbourg. The HRA only made it possible for ECHR law to be directly applied in British courts, which saved a great deal of time and expense. Parliament is sovereign. It can make any law it likes, including one that goes against an international obligation, whether or not it would be “right” to do so.
International treaties the UK signed and ratified such as in co-founding the ECHR all do have a pathway out of the treaty but signatories don’t have the right to cherry pick bits and bobs they like and turn down bits they don’t.
The UKG may choose to believe it has the sovereign right to do so but the fact is it has no basis in international law to do so and this behaviour is rightly considered reprehensible by others and making Britain a pariah.
With the NIPB you can see the UKG is fully aware of this by the fact that it makes the claim to be allowed to unilaterally repudiate the NIP on the risible ground of necessity.
I was imprecise to say the Supreme Court is the ultimate arbiter of human rights. It is the ultimate authority on British law. If British law derogates from some aspect of ECHR jurisprudence, then the Supreme Court and the lower courts apply that law. Parliament drafts that law. A claimant could still seek a remedy outwith.
Usually a declaration of incompatibility is not the aim of a new law. But that would be preferable to throwing out the entire system. In that case, a claimant could only get a remedy at Stasbourg. For other matters, the courts would still be able to supply a domestic remedy.
Incompatible laws can have their place. This should only be wielded exceptionally in matters of great national importance, as was done by default with Hirst. I am among those who believe the ECtHR got that decision wrong. In 2015 the CJEU gave a ruling that seemed to go against the grain of Hirst, showing that this is not really settled.
Successive British governments have railed against human rights decisions against them on planned deportations more than anything else. As David avers in another post, British judges have developed privacy law under the Human Rights Act to an extent that some believe goes beyond the intent of Article 8. That’s British judges applying the law and taking account of Strasbourg. In some cases where British courts developed the law and provided a domestic remedy, it’s conceivable that Strasbourg might have been more conservative. It would be possible for Parliament to specifically draft legislation that could reshape privacy law but still within the margin of appreciation.
Governments seem to forget that courts only apply the law that Parliament enacts. When the law is imprecise, the courts attempt to clarify it. If the courts get the intent wrong, Parliament needs to legislate to correct that. Enacting a Bill of Rights that says courts “may adopt an interpretation of the right that diverges from Strasbourg jurisprudence” is stupid, lazy, and pointless. Cases will still go to Strasbourg to be decided, who will issue injunctions that are binding on us. Not as many cases though, since it will be expensive and time consuming. The only way to be truly free of that oversight is to withdraw from the ECHR.
I welcome your criticism. I do not propose that it is acceptable to write laws that defy the ECHR, only that it is preferable to repealing the HRA. The draft Bill of Rights itself is an affront to the ECHR. If I have any of this wrong, then please also set me straight.
Just on Hirst, the UK is still in breach of the Convention (specifically, Article 3 of Protocol No. 1, which provides for free elections at reasonable intervals by secret ballot) and has not changed its law. I’d argue that the UK is in breach of Article 1 of the Convention now: for many years, the UK government has failed to secure Convention rights to everyone in the UK.
In Hirst (No.2) the ECHR ruled in 2005 that “the finding of a violation constitutes in itself sufficient just satisfaction” and declined to award any damages (although the government was ordered to pay towards Hirst’s costs).
The Voting Eligibility (Prisoners) Bill in 2012 was a chance to change the law – with options allowing those imprisoned for less than four years, or alternatively less than six months, to votre, or to affirm the current position – but it did not proceed.
Here is the latest guidance from 2020: https://www.gov.uk/government/publications/restrictions-on-prisoner-voting-policy-framework “The Government is clear that convicted prisoners detained in custody should not be able to vote.”
Risking the challenge of whether or not this government is capable of walking and chewing gum at the same time… I’m inclined to consider how the general population of the country would react if it were highlighted to them that the cabinet were spending time on this, as opposed to:-
– Coming up with an energy strategy to help wean us off our dependency on fossil fuels, by targeting investment in renewables
– Taking another look at our food strategy and addressing the fact that we seem to be dependent on imports for items that should be staples, such as wheat, which should go some way to taking the edge of spiking inflation, a large part of which is driven by sky-rocketing import costs
– Addressing the catastrophe-in-the-making that is the combination of the Covid pandemic closely followed by the economic fallout of Russia’s invasion of Ukraine, which is in the process of pushing thousands more below the poverty line.
We have to be realistic; if there were silver bullets or magic wands out there, doubtless they would be in use by now. By we do have a right to expect a government to address these issues. Instead it appears as though priorities are being given to either vanity projects or activities designed to be “red meat for the base” – inflammatory rhetoric and activities that are more political than pragmatic in nature.
Frankly, I don’t think the nation has the time to waste with frivolities.
Agree with your sentiment. This crime minister would not get a job in a small professional seevices firm. Nor his cabonet colleagues.
But he has the nation over a barrel.
Precisely the terms in which Tory spokesepersons have tried to bat away concerns over Partygate.
That’s a reference to Sproggit’s last sentence.
Still, things could be worse.
We could live in a country where the top court has, at a stroke, just ended rights that millions of women have exercised to control their bodies for nearly 50 years.
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
It can’t be too long before the US Supreme Court is asked to reconsider the rulings prohibiting laws against contraception, prohibiting laws criminalising private homosexual activity between consenting adults, and requiring recognition of same-sex marriage.
As the dissenters say, “They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions.” But only protected by decisions of the Court which it could overturn tomorrow, not by specific constitutional rights.
Lots of guns, but no protected rights to make “intimate and personal choices” that are “central to personal dignity and autonomy”. Sad. How far can the clock be turned back?
Dobbs v. Jackson Women’s Health Organization makes for painful reading.
At first there is a certain attractiveness to the court’s reasoning, although the idea that it had to be all or nothing due to the parties’ oral arguments is entirely contrived and likely a very weak reply to Roberts’ criticism over lack of judicial restraint. Thomas’ concurrence is ominous. Kavanaugh’s is thoughtful but misguided.
Roberts’ concurrence is good, and it really brings the point home about judicial restraint and particularly judicial minimalism. There was no need to overturn precedent in order to dispose of the present case, so restraint counsels that the Court should not. With that in mind, all of Alito’s sanctimonious lecturing on the proper use of stare decisis comes apart.
The dissent, though. That is powerful and undoubtedly correct. Wow. They are right. That bare majority of five wasted no time uprooting 50 years of precedent that millions of women have relied on for no other reason than that they had the votes. The majority doesn’t take reliance seriously and it doesn’t accept that there’s any liberty issue at all at stake stake. They have betrayed the Court’s guiding principles and probably irretrievably undermined its legitimacy. I do not say this lightly.
No matter what Alito or Kavanaugh say, this decision is every bit and arguably more an egregious instance of judicial activism than the impugned Roe. The majority also, despite much hand waving, call into question any precedent derived from the doctrine of substantive due process, which Thomas explicitly disavows (and I note that the hypocrite does not list Loving as a case that should be revisited). The jolt to the American legal system cannot be overstated.
The Salisbury doctrine is thoroughly unsatisfactory. Suppose one party has a manifesto which contains policies A, B, and C, while the main opposition has a manifesto which contains D, E, and C. If the first party gets elected, it is reasonable to suppose that the voters favoured policy A or policy B and disliked D or E. But it could be that policy A was extremely popular, B was disliked, but not enough to put voters off, and D is heavily disliked, and E is mildly liked. Ideally this would result in policies A and E getting implemented and not D or B. But due to the aggregation of policies in manifestos, the voters are unable to express that preference. Where it is reasonably clear that that is what the voters want, the Lords should block B and propose E. They should not feel bound to support both A and B.
And that’s not covering the lack of choice over C, which might be quite unpopular, yet the voters cannot vote against it.
As often, I smiled when reading on this site.
The constitutional settlement requires the Prime Minister to meet the Queen for tea and gossip. Her Majesty gossips with her Lords who may take a year making sure the public have heard them gossiping and huffing amongst themselves when it appears the commoners might be breaking the solemn electoral pledges they made to each other.
If the liars can still get it past the suckers after a good public huff, so be it.
Them be the Salisbury rules.
If you download the PDF copy of the 2019 Conservative Manifesto and find the passage that David quotes in this post, you will see that it goes on to say,
“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a **Constitution, Democracy & Rights Commission** that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”
Then if you search a little bit deeper for the aforementioned Commission, you will find their official web page, here:-
https://committees.parliament.uk/work/608/the-governments-constitution-democracy-and-rights-commission/
At which point you will note that not only has it held a grand total of just three meetings since inception (6 October, 2020; 3 November, 2020; 8 December 2020) [which looks like a Tuesday early in the month], but it also has no published plans to meet in future, or deliver anything of value to the nation.
The minutes of the December meeting are here:-
https://committees.parliament.uk/oralevidence/1369/default/
which I went to review in search of any evidence that the Commission was being shelved, placed on hiatus or for any other explanation that would help me understand why it has apparently done nothing in 18 months. There is no justification for this which I can see from the materials.
So let us see if we can get this straight:-
1. In the 2019 manifesto, the Government claims that it will “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
(Colour me cynical, but I read the above and thought that the UK government were getting fed up of having their attempts to deport people thwarted, so this is an attempt to give themselves more powers to do so. [ I note, for example, that this topic first appeared in a Conservative manifesto in 2015. On July 8th 2010, the ECHR temporarily blocked the extradition of Abu Hamza to the United States to face terrorism charges. Knowing how much trouble the government had trying to extradite Hamza, I could not help but wonder if this proposal was conceived to make such a process easier in future?]
2. Literal years pass.
3. The government fails to clarify their issues with the wording of the existing act, or point to the clauses that they propose to change, or even set up a Committee to prepare new language.
4. Nation left in the dark.
I think it is valid to mention this, because if this was something that the Conservative Party felt important enough to put in their manifesto and ratify through conference, then why have they done nothing with this since they won office?
And at the risk of repeating myself, what is it exactly, about the current HRA that lacks the ability to “balance between the rights of individuals, our vital national security and effective government”?
Unless, of course, it is something with the current HRA that rather shows up the current administration to be completely *ineffective*?
Although, to be fair, pretty much everything they do confirms that.
Very detailed post Sproggit.
I appreciate the research into the “Constitution, Democracy & Rights Commission”.
Well found.
Sadly, this has become necessary.
It says a lot about the state of our nation that it is necessary to investigate everything that politicians claim.
Intentionally apolitical – I am an equal opportunity employer of both cynicism and scorn when it comes to party politics.
I do hope this
https://www.bbc.co.uk/news/uk-61946038
Is worth a post…