Merris Amos

2 October 2015

In his controversial interview with The Evening Standard, published on 21 September 2015, Supreme Court Justice Jonathan Sumption spoke of the “very old tradition of defending human rights” in this country and put forward his view that “we are less inclined to be told what to do by outside authorities than most countries.” His comments reflect the opinion that the common law has potential as a means for protecting human rights, with, or without, the help of the European Court of Human Rights (ECtHR). Over the last year this belief in the common law has gained traction and is supported by government ministers such as Minister for Human Rights Dominic Raab and Lord Faulks, Minister for Civil Justice, who recently asserted in Parliament that even without a new Bill of Rights, the common law and “traditional British liberties” will provide. In a number of recent papers, law academics have written about common law rights as a tool to be used in the defence of human rights and in a handful of recent judgments, various judges of the Supreme Court have utilised, or encouraged, common law solutions to claims made under the Human Rights Act 1998 (HRA).

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?

Common law rights were not obliterated by the Human Rights Act
Section 11 of the HRA provides that a person’s reliance on a Convention right does not restrict “any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom”. With the coming into force of the HRA, these other mechanisms of protection, including the common law, did not disappear but operate alongside the HRA, in some instances filling the gaps and in others providing equivalent or even stronger legal protection for human rights. Early on this was confirmed by Lord Steyn who, in his judgment in the case of Reynolds [1999], held that there were now three routes to protecting the right to freedom of expression through law: first the principle of liberty—that individuals are free to do whatever is not specifically forbidden by law; second, the constitutional right to freedom of expression; and third Article 10 of the ECHR which is given further effect by the HRA. True to this prediction, over the last 15 years, in all of the courts of the UK, common law rights have on occasion been utilised over the Convention rights given effect by the HRA the highlights including: Daly [2001], Fitzpatrick [2001], R. v Connor [2004], Al-Hasan [2005], A v Secretary of State [2005], Ahmed [2010], Al-Rawi [2011] and Lukaszewski [2012]. In some areas, common law rules still prevail. For example, it has been consistently held that the ECHR adds nothing to the common law principles regarding the lawful length of detention prior to deportation. It is also often observed that the guarantees of Article 6 of the ECHR (fair trial) have long been a part of the common law.

The common law gets a PR campaign
Recent applications of common law rights by the Supreme Court, in judgments including Osborn [2013], Kennedy [2014] and A v BBC [2014], have not therefore come from nowhere but, in contrast to previous outings, have received far more attention from academics, government ministers and others than has previously been the case. Particular attention to the phenomena has been given by the senior judiciary itself. Lord Neuberger, in his extra judicial speeches, has made considerable reference to human rights as an “important ingredient” of one of the “principal pillars on which a civilised society rests, namely the rule of law”. He views the rule of law as addressing the contents of the law and has quoted from Lord Bingham’s book stating that “the law must protect fundamental human rights” and that “the State must comply with its obligations in international law.” In a speech in October 2014 he stated as follows:
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.”
A much needed response in the current climate?
The general view is that the senior judiciary has embarked on this campaign for the common law, both judicially and extra-judicially, as a response to the current debate over the future of the HRA. For those involved in the passage of the HRA through Parliament there is a strange sense of déjà vu about this debate but fundamental features of the discussion are very are different. In the 1990s, the protection of human rights through common law was seen by proponents of the HRA as an inadequate and ineffective remedy and the weakness of the common law was used to support the case for the HRA. Today, by contrast, the strength of the common law is put forward by some as an argument in favour of repealing the HRA. Also in the 1990s, the prospect of the UK leaving the ECHR system of supervision was not within contemplation. Judgments of the ECtHR finding against the UK were consistently used to illustrate the weakness of the common law as a means for protecting human rights. Today the prospect of the UK leaving the ECHR system is very much on the table with the common law once again put forward by some as having the potential to fill the gap.

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.

• 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.

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.
Buying into Euroscepticism
In her excellent book The New Terrain of International Law (2014), Karen Alter concludes that for an international court such as the ECtHR to have authority within the national system, it must have the support of national actors including the national judiciary. National judges are “key actors in determining whether and which international law has a higher order status within the domestic system” and their support is necessary for constitutional obedience to international law. However, she also points out that where national supreme courts are strong, they may dislike the notion that international judges should have a say within their constitutional order. Considering these conclusions, it becomes tempting to ask whether there is an alternative view of the recent judicial enthusiasm for the common law protection of human rights; is this just more of the same Euroscepticism which has motivated the Government’s plans for a British Bill of Rights, albeit far more subtle?

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.

In his Evening Standard interview, Lord Sumption also offered the opinion that it would need up to 50 years before the number of women judges on the Bench matched the total of men. He is obviously not a man in a hurry and it is a shame that he was not also asked for his view on how long it would take the common law to match the standards set by the ECHR and the ECtHR. His likely answer would be 50 years as well, if not more.

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.