Parliamentary sovereignty and the Human Rights Act 1998

By Matthew Burton

In a recent post on this blog, Chris Kirkland highlights the problematic nature of the concept of sovereignty in relation to the Brexit debate and the forthcoming referendum on the UK’s membership of the European Union. On the one hand, Brexit campaigners argue that the UK has already lost its sovereignty to the European Union. A legally precise argument in this vein would point to the EU doctrines of supremacy and direct effect, which allow nationals of Member States of the EU to enforce EU law within the courts of the Member States, and requires EU law to take priority whenever it conflicts with a principle of domestic law. On the other hand, as the referendum demonstrates, the Westminster Parliament is free to legislate to withdraw from the EU whenever it wishes, and from a legal perspective at least, could do so without the need for any kind of referendum or national vote.

Other elements of the UK constitution could be said to have had an effect on the doctrine of parliamentary sovereignty, notably the enactment of the Human Rights Act (HRA) 1998 and the raft of devolution legislation enacted since 1998. Theresa May, for instance, has argued that the UK should repeal the HRA 1998 and withdraw from the European Convention on Human Rights (ECHR), on the grounds that it “bind[s] the hands of Parliament” and prevents the Government from acting, such as to deport “dangerous foreign nationals”, for example Abu Qatada. This post has two purposes. Firstly, to explain the operation of one particular parliamentary mechanism that has developed to supplement the working of the HRA 1998, namely the JCHR, and, secondly, to address the wider question of the effect that the Act and those parliamentary mechanisms have had on the question of the sovereignty of the Westminster Parliament in relation to human rights matters.

While much of the White Paper that preceded the enactment of the HRA 1998 and the Act itself focuses on the powers and functions of the courts, the White Paper also envisaged the creation of a “Parliamentary Committee on Human Rights”, which “might conduct enquiries on a range of human rights issues relating to the Convention, and produce reports so as to assist the Government and Parliament in deciding what action to take” (para 3.7). The committee would not be limited to considering only the ECHR, and may also consider other human rights treaties to which the UK is a signatory, such as the International Covenant on Civil and Political Rights. The committee was subsequently instituted as the Joint Committee on Human Rights (JCHR) and began work in 2001.

The JCHR is comprised of 12 members, six from each House with eight permanent parliamentary staff to support them. The JCHR performs three main functions: it conducts a process of legislative scrutiny for every bill introduced to Parliament; it conducts thematic inquiries into pertinent human rights issues, such as the current inquiry into the government’s use of drone strikes in conflict zones; and, it routinely monitors the UK’s response to either judgments of the European Court of Human Rights or domestic judgments that result in a declaration of incompatibility.

Nothing in the White Paper or the Act, however, describes how politicians, including the JCHR, ought to behave under the HRA 1998. There are two dominant schools of thought as to the proper role of politicians under human rights instruments. On the one hand, it can be argued that human rights are of such fundamental importance that they ought to be a limit on the kinds of things that government and Parliament may do. The HRA 1998 gives to domestic courts the ability to review legislation and acts of public authorities for compatibility with the rights contained in the ECHR, and therefore judges ought to be the prime interpreter of what those rights mean. We may bolster this argument by referring to the independence of the judiciary from the political fray, the nature of the deliberative legal process and the duty of the courts to give reasoned judgments. This may be defined as a “culture of compliance”, in which the role of politicians is to act and legislate within the human rights framework as defined by both domestic courts and the European Court of Human Rights. On the other hand, one could argue that the responsibility to protect and uphold human rights is incumbent upon all aspects of society, and is not just a judicially-orientated task. While judges may have an independence from the political process, Jeremy Waldron has challenged the view that judges have any kind of superiority in the task of defining what particular human rights mean. If the task of defining what human rights mean is seen as an ethical or moral task, there is no necessary advantage that a judge has in performing this task over anyone else, including politicians. This has been described as a “culture of controversy”, and suggests that politicians ought to consider themselves able to challenge judicial decisions about human rights with which they disagree.

In its 15 years of existence, the record of the JCHR provides a rich vein of material to consider how politicians in a deliberative setting approach the question of human rights and judicial decisions about their meaning. Between March 2001 and May 2016 the JCHR issued 276 reports, 150 of which were legislative scrutiny reports into both government and Private Members’ Bills. The dominant approach of the committee appears to be one of a culture of compliance, where judicial decisions about human rights are often treated as providing an authoritative definition of the particular rights engaged by a bill, often with little or no consideration of whether those decisions are appropriate interpretations of the human rights involved. For example, in the most recent legislative scrutiny report into the Investigatory Powers Bill, the JCHR went to great lengths to canvass the legal disagreements about whether or not the bulk collection of individuals’ data, contained in Parts 6 and 7 of the Bill, is compatible with the ECHR case law on Article 8, the right to a private and family life. The committee concluded that the current position within the case law is unclear, and therefore declined to express a view on whether or not the power to obtain bulk communications data is compatible with the right to privacy (see para 2.10). This is a clear example of a culture of compliance, where the politicians involved appear to see themselves as subordinate to the legal process when it comes to questions concerning human rights. A culture of controversy, on the other hand, could take one of several forms. The committee could examine the relevant judicial decisions to consider the principles that lie behind the case law, to decide for itself with the help of those decisions the question of whether or not the bulk collection powers in the bill are compatible with the right to privacy. Or, given the uncertain legal position, this could have presented a welcome opportunity for the Committee to engage more deeply with the concept of privacy and its relationship with considerations of national security. This is, after all, what the courts will ultimately be asked to do.

To return to the theme of sovereignty set out at the beginning, issues relating to human rights and “Europe” are often presented as if European judges have extended the long arm of the law into the Palace of Westminster and barred the doors of Parliament to the consideration of certain issues. However, it is important to bear in mind the reality of the current constitutional situation. Firstly, the decision taken to introduce the HRA 1998 by the Blair government in 1997 was entirely voluntary. The UK gave effect to the route of individual petition to the European Court of Human Rights in 1966, and lasted 32 years before the incorporation of the ECHR into British law. It was under no obligation to do so. Secondly, alongside the HRA 1998, Parliament has developed an important and comprehensive mechanism in the JCHR for the consideration of human rights issues. It can, and should, make use of it. Finally, it is entirely in the hands of the politicians themselves as to how they interact with human rights. In a country that lacks a written constitution, the appropriate roles and boundaries between the different parts of the State are shaped by their everyday interactions. While it may be relatively unchartered waters for Parliament to disagree with judges about the meaning and importance of particular human rights, the “prisoner votes” saga aside, the mechanisms and procedures are in place for them to do so. Politicians cannot decry the loss of their sovereignty when they are unwilling to make use of it for themselves.

About the author

Matthew Burton is a Teaching Associate at the University of Bristol and a PhD student at the University of Birmingham, focusing on the role of political actors within human rights frameworks.

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