Many of those who remember the struggle the common law had in affording effective protection for human rights prior to the coming into force of the HRA, particularly in the 1990s, are questioning what has prompted this renewed interest. At a time when it is possible that the UK will withdraw from the European Convention on Human Rights (ECHR) system of protection, including the jurisdiction of the ECtHR, to make way for the British Bill of Rights, has the common law been resuscitated in order to match, or outdo the HRA and ECtHR as a means of protection? Or are the proponents of common law rights, like the Government, eager to return to a time when there was no pesky ECtHR and the most the common law could offer in the face of a gross violation of human rights by a government minister was the argument that his or her decision was irrational?
To most right-thinking people, the rule of law comprises much more than properly made laws properly administered: the contents of the laws must respect freedom of expression, freedom from torture and other fundamental freedoms and rights, such as access to justice and equality before the law”.In unconnected comments, he has observed that without the rule of law “society collapses” and that that rule of law is under threat. He has also stated that judges are law-makers and that the “notion that Parliament is the only body engaged in law-making in the wider sense is demonstrably untrue.” He sees the HRA as “not merely an authorisation, but an invitation, even a stipulation, by Parliament to the judiciary to ‘make law’ in areas into which the judiciary has traditionally been reluctant to step or even conventionally prohibited from stepping.” In his view, the HRA should not have the effect of marginalising the common law which should be “reinforced and not undermined by the introduction of human rights.”
Lady Hale, in a speech delivered in February 2015, essentially warned that the Supreme Court would carry on protecting fundamental rights, regardless of the statutory tools with which it was provided:
It has always been the role of a constitutional court to protect fundamental rights, within the framework of the law and the constitution, and that is what an independent judiciary will continue to do to the best of its ability. The quid pro quo is that we must stay true to our judicial oath, “to do right by all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.” We are not making it up as we go along, but building upon the centuries of law and jurisprudence which make up our national narrative.Similarly, Lord Toulson has observed that the common law can be shaped and developed to meet the “needs of justice in a changing world, politically, economically, technologically or socially.”
Should the HRA be repealed and not replaced, it could be that the only human rights protection through law that will be possible in a few years will be via the common law, in which case it becomes vitally important to develop common law rights. However, this is very unlikely. The people of the United Kingdom continue to wait for the government to publish its consultation paper concerning the British Bill of Rights and Responsibilities. However, from the October 2014 proposals, Protecting Human Rights in the UK and other statements by various government ministers in recent months, a picture is beginning to emerge. It is likely that the British Bill of Rights will generally reflect the existing guarantees of the HRA but with the following changes:
• In order to address “rights inflation” some rights will be redrafted or have a limited application to particular groups such as foreign nationals and prisoners. For example, judicial discretion in relation to the interpretation and application of Article 3 of the ECHR (prohibition of torture or inhuman or degrading treatment) in the immigration context will be constrained.To date, the government has not proposed the abolition of the common law or that there will be no statutory bill of rights at all. Indeed in its October 2014 proposals, the Conservative Party stated that protecting human rights through law is the “hallmark of a democratic society”. Much of the current discussion appears to be gearing up for the common law to take the place of the HRA entirely and form a common law bill of rights, but this will not be the problem. Most of the guarantees will remain. What it is far more important to answer now is how the judiciary wielding the common law will address the modifications to the framework for the protection of human rights set out above, if at all.
• There will be no equivalent of section 3 of the HRA, which allows judges to interpret primary legislation compatibly with the Convention rights, so far as it is possible to do so.
• There will be no equivalent of section 2 of the HRA which obliges judges to take into account the jurisprudence of the ECtHR. A provision may also be included which prohibits judges from utilising this jurisprudence in their decision making although this is unlikely.
• A threshold requirement of “seriousness” which must satisfied before a claim under the Bill of Rights can proceed will be included and the Bill of Rights will not have extra-territorial effect so it will not be possible for those affected by human rights violations abroad, including members of the armed forces, to bring claims in the courts of the UK.
• The UK will de-ratify the ECHR and therefore no longer be under the supervision of the ECtHR. Individuals affected by human rights violations in the UK will no longer be able to bring an application to this Court.
No-one expects the senior judiciary to robustly enter the present political debate on the reform of human rights law. However, since the publication of the Conservative Party’s proposals in October 2014, both judicially and extra judicially some comments have been made. Most of these fall far short of the type of support Alter describes as necessary to ensure the continuing authority and legitimacy of the ECtHR in the UK. For a Supreme Court Justice to simply, and regularly, assert that the Supreme Court is the highest court the UK and is not bound by the ECtHR would go a long way towards correcting current myths and misunderstandings. The best explanation of the current position came from Lord Neuberger in an interview with The Independent on Sunday in October 2014 on the occasion of the fifth anniversary of the Supreme Court where he stated that the Horncastle case, as well as the fact that prisoners still do not have the vote, were striking examples of “why Eurosceptics are wrong to suggest that the European court wields absolute power over us.” And in a speech in October 2014 he reminded his audience that a justification for the HRA was to put an end to the undesirable situation of UK judges deciding cases against a litigant who could then complain to the ECtHR.
However, extra judicially, in recent times it is only Lord Carnwath who has been supportive of the role of the ECtHR, stating in a speech delivered in October 2014 that the ECHR, which the ECtHR administers, was one of the more remarkable achievements of a post-war world:
It has developed into a single system of law supervised by a single international court, voluntarily adopted by 47 independent states. Most of them 70 years ago were tearing each other apart in war, or 35 years ago were still divided by the Iron Curtain of Communism . . . The court now disposes of 50,000 cases a year, and gives more than 2,000 substantive judgments, the vast majority uncontroversial in law.
By insisting that human rights can be protected via the common law buys into the message currently being peddled by the Government – we can go it alone, we have no need of fancy Euro rights or Euro courts. Indeed the types of rights offered protection by common law are the types of rights the government would like to see protected. It has no argument against freedom of expression or the protection of journalists. In its election manifesto it promised to grant the role of journalists explicit protection. Those wary of Euro rights also have little difficulty with the right to open justice or the right to a fair trial sometimes encompassing oral hearings.
But what the Government, and the common law, are not keen on are a different set of more modern rights such as: the application of Article 3 (prohibition of torture and inhuman or degrading treatment) to deportation and extradition; the utilisation of Article 8 (the right to respect for family life) in immigration decisions; the use of Article 8 (the right to private life) and Article 14 (non-discrimination) to challenge austerity measures; the positive duty to protect life imposed by Article 2 (the right to life) on police; and the positive duty to investigate deaths in the UK and abroad involving UK armed forces also imposed by Article 2 (the right to life). It is no exaggeration to conclude that the development of national human rights law in this direction has been solely inspired and directed by the jurisprudence of the ECtHR. Should the UK leave the ECHR system, although national human rights protection may not go backwards, it will stagnate as national judges twist in accordance with the prevailing political winds and there is no supranational human rights court to jolt them from their reverie.
Over the past 15 years, at its glacial pace, the common law protection of human rights has continued to develop. But the current obsession seems a little odd given that the government has not proposed the removal of statutory human rights protection, really the only kind of gaping hole that the current level of common law protection could fill. The changes proposed to the statutory protection of human rights are far more nuanced and will require a very brave judiciary to reverse, particularly in the face of the sovereignty of the UK Parliament. Promoting the common law as an alternative to the HRA, with scant regard to the current context, simply buys into the misleading message that there is nothing to be gained from the UK’s continued membership of the ECHR and that we can do it our way, the best way, just like we used to.