Joint Committee on Human Rights - Twenty-Ninth Report

Joint Committee on Human Rights Twenty-Ninth Report

7 Relationship between Parliament, Executive and the Courts

211. In this chapter we consider what should be the impact of a UK Bill of Rights on the existing relationships between Parliament, the Executive and the courts. Should a UK Bill of Rights seek to change significantly the existing constitutional relationship between the three branches, or should it seek to preserve that set of relationships as far as possible?

The possible models

212. As the JUSTICE Report on a Bill of Rights points out, there are, broadly speaking, four possible models for a national Bill of Rights:

i) Judicial power to strike down legislation for breach of Bill of Rights (cf the US and European jurisdictions with a Constitutional Court, e.g. Germany);

ii) Judicial power to strike down but subject to parliamentary override (cf. Canada);

iii) Judicial obligation to interpret statute compatibly with the Bill of Rights and power to declare incompatible if not possible, giving opportunity for legislative response (cf the UK under the HRA);

iv) Judicial obligation to interpret legislation consistently with the rights and freedoms contained in the Bill of Rights (cf New Zealand).

213. We received a range of views from witnesses about the model that should be adopted if the UK were to have a Bill of Rights. Some, but not many, suggested that courts should be able to strike down legislation.[187] Others were strongly opposed to that option. Martin Howe QC, for example, was against what he called "strong entrenchment" along the lines of the US model, because he was wary of transferring too much power from legislators to courts and also regarded a Bill of Rights as primarily a tool for Parliament to keep the Executive in check.[188] Professor Harlow of the London School of Economics suggested that there is an emergence of a more nuanced position in the UK "in which legislatures, courts and administration all feel obligations and join in the attempt to strike appropriate balances between individual human rights protection and interests of the collectivity". She argued that such a "dialogue model … best fits common law countries".[189]

The 'parliamentary model' of human rights protection

214. The HRA is often described as a "parliamentary model of human rights protection", because although it involves a role for judges in the enforcement of the rights in question, it also gives Parliament an important role in the interpretation of the Convention rights and in deciding how best to implement them in more detailed legislation.

215. In many other jurisdictions with constitutional bills of rights, or other legal protections of human rights, court judgments are the single most important source of interpretation of the rights protected. In the UK's institutional arrangements for protecting human rights, however, the intended design is that Parliament, as well as the judiciary, has a central role to play in deciding how best to protect the rights which are considered to be fundamental.[190]

216. In practice, however, Parliament has not been as central to the scheme of rights protection under the HRA as the legislation would seem to intend. As we have pointed out in our reports monitoring the Government's responses to court judgments, under the HRA there is nothing more that Parliament can do to force the issue if the Government decides to take no further action following an adverse court judgment or drags its heels in bringing forward its response. In the Victoria Charter of Rights and Responsibilities in Australia, there are more detailed provisions designed to place the legislature central to the process of human rights protection, such as requiring the Government to make a statement to Parliament within a certain time from the date of a judgment finding a breach of the Charter.

217. Professor Fredman challenged the conventional dichotomy between questions of negative liberty being for the courts rather than Parliament and questions of positive provision of needs being for the democratic process.[191] In her view, one of the great strengths of the HRA is that it places Parliament at the centre of the system of human rights protection. She believes that there is an opportunity in adopting a Bill of Rights to enhance Parliament's role even further.

218. We are not in favour of a Bill of Rights which confers a power on the courts to strike down legislation. We consider this to be fundamentally at odds with this country's tradition of parliamentary democracy. In our view the innovative and widely admired parliamentary model of human rights protection contained in the HRA is the appropriate model of rights protection for our democracy. Within that model, we consider that there is scope to enhance Parliament's role further, at the same time as strengthening the protection provided for human rights, as discussed below.

219. The Government has stressed that Parliament must remain at the heart of governance of this country.[192] We therefore asked if it saw any ways of strengthening the role given to Parliament in a Bill of Rights, compared to the HRA. We are disappointed that the Government failed to answer our specific suggestions about ways in which the role given to Parliament by a UK Bill of Rights could be strengthened compared to that which it currently plays under the HRA.[193] The Government has so far avoided any consideration of ways in which Parliament's role could be strengthened.

Enhancing Parliament's role in the parliamentary model

220. We suggest four ways in which the UK's parliamentary model of human rights protection could be strengthened under a UK Bill of Rights.

POWER OF LEGISLATIVE OVERRIDE

221. Section 33 of the Canadian Charter provides for the federal Parliament to pass a law notwithstanding a provision in the Charter.

222. Although the HRA does not contain an express power of legislative override equivalent to that in the Canadian Charter, Parliament effectively has such a power. If an Act of Parliament made it express that it was deliberately legislating notwithstanding a Convention right, all that the courts could do would be to give a declaration of incompatibility in respect of the relevant provision in that Act.

223. A UK Bill of Rights could make explicit (in a way that the HRA does not) that Parliament continues to have the power of "legislative override", by expressly declaring in an Act of Parliament that the Act or any provision in it shall operate notwithstanding anything contained in the Bill of Rights.

REASONED STATEMENTS OF COMPATIBILITY

224. The requirement in the HRA that all Bills must be accompanied by a statement of compatibility[194] is an important feature of the parliamentary model of human rights protection. The Justice Secretary acknowledged this and said that there may be a case for extending such statements so that they require a statement of compatibility with the Bill of Rights.[195]

225. We welcome the Government's acknowledgment of the importance of statements of compatibility accompanying Bills and we agree that any Bill of Rights should include an equivalent provision. In our view, however, there is considerable room for improvement in the information currently provided to Parliament about whether a measure is compatible with human rights. Indeed, this opportunity was taken in the Victorian Charter of Rights and Responsibilities, which drew primarily on the experience of our Committee under the HRA in this respect.

226. Under the HRA, Ministers merely have to sign a certificate of compatibility. There is no requirement to give reasons for the Minister's view. In New Zealand, by comparison, the Attorney General's legal advice to the Government about compatibility with the New Zealand Bill of Rights Act 1990 is published in full when, in the Attorney General's view, the Bill appears to be inconsistent with the New Zealand Bill of Rights. To enhance democratic scrutiny of the compatibility of a Government measure with any Bill of Rights, the Bill could require Ministers to provide full statements of compatibility, containing the reasons for the Minister's view that a measure is compatible with the Bill of Rights. It could also extend its application to Government amendments to Bills and to other legislative measures such as statutory instruments and Orders in Council. We suggest the text of such a provision in the outline Bill of Rights and Freedoms, annexed to this Report.

ENHANCED ROLE FOR PARLIAMENT FOLLOWING DECLARATION OF INCOMPATIBILITY

227. Under the HRA, it is up to the Government to decide whether to remedy a judicially declared incompatibility and if so, how. In South Africa the courts have the power to make "suspended orders of invalidity" when they find a breach of the Bill of Rights, which gives the Government a period in which to respond to the judgment, and the court the power to supervise the Government's response to the judgment.

228. In our view, suspended orders of invalidity would be at odds with our constitutional traditions. However, the Bill of Rights could seek to enhance Parliament's role following a declaration of incompatibility by requiring the Government to bring forward a formal response to Parliament within a defined timetable and to initiate a debate on its response, to guarantee Parliament the opportunity to express its view. This is what happens in the State of Victoria in Australia under its recently adopted Charter. The outline Bill makes provision for this.

229. The Bill of Rights could also require the Government to come back to court to account for what it has done to implement the court's judgment where it has declared legislation incompatible. The outline Bill provides for this.

FIVE YEARLY INDEPENDENT REVIEW

230. The Victorian Charter of Human Rights and Responsibilities requires the Attorney General to cause a review to be made of the first four years of operation of the Charter and to lay a copy of the report of the review before each House of Parliament.[196] The review is expressly required to include consideration of matters which were considered for inclusion in the Charter during the consultation process but ultimately not included, such as economic and social rights and stronger remedies.

231. There is no equivalent provision in our HRA. The Department for Constitutional Affairs, as it then was, conducted a review of the HRA in 2006, after it had been in force for about five years, but this review was hastily arranged and rapidly executed. The review was responding to the suggestion that the HRA was to blame for the release on parole of Anthony Rice who subsequently committed murder. We reported on the outcome of that review, broadly favourably, but we noted the unsatisfactory circumstances in which the request for a review had been made in the first place.

232. In the context of our work on counter-terrorism policy and human rights, we have increasingly stressed the importance of opportunities for properly informed parliamentary review of the operation in practice of counter-terrorism powers.[197] The Government has also recently recognised the importance of post-legislative scrutiny as a function of parliamentary committees.[198] We see the Victorian example of a periodic review and report to Parliament as one which has the potential to enhance considerably Parliament's role in the protection of human rights. We recommend that any UK Bill of Rights contain a similar provision, providing for a five yearly review and report to Parliament by an independent panel of reviewers. We suggest a possible clause to achieve this in our outline Bill of Rights and Freedoms.

Entrenchment

233. A number of witnesses to our inquiry addressed the question of whether a Bill of Rights should be entrenched. They expressed a range of views. Some favoured entrenchment in order to ensure the superiority of a Bill of Rights and protect it from easy amendment by Parliament.[199] One witness suggested that entrenchment is required to protect the power of the UK courts to adjudicate upon claimed violations of human rights and ensure an effective remedy.[200]

234. On the other hand, other witnesses suggested that entrenchment may not be desirable. Professor Harlow opposed entrenchment because in her view the common law combined with parliamentary sovereignty allows rights to be easily updated as society changes, although she recognised that this could also mean that rights may be swept away more easily.[201]

235. We are not in favour of entrenching a UK Bill of Rights against future amendment or repeal by requiring that any such amendments or repeal must satisfy a special procedure, such as approval by a special parliamentary majority or by the people in a referendum. In our view such forms of entrenchment are not compatible with our tradition of parliamentary democracy which has carefully preserved the freedom of each Parliament to legislate according to its view of the public interest.

236. We again prefer the approach adopted in the HRA, which provides for a much more limited form of entrenchment in the form of the obligation to interpret all legislation, including future legislation,[202] compatibly with Convention rights so far as it is possible to do so.[203] That provision has been interpreted by the courts as a strong obligation which effectively prevents any later Act of Parliament from impliedly repealing the HRA to the extent that the later Act is inconsistent with a Convention right. However, every Parliament remains at liberty to legislate inconsistently with any of the Convention rights, provided the legislation expressly states that this is what it intends to do. In such a case, it would not be possible to interpret the legislation compatibly, and the most a court could do would be to make a declaration of incompatibility.

237. The interpretive obligation in the HRA therefore achieves a degree of entrenchment for the Convention rights (against implied repeal by future Acts), but preserves Parliament's ultimate freedom, in national law in any event, to pass legislation which is incompatible with any of the Convention rights. In our view, it achieves the right balance between protection of human rights against too easy infringement by Parliament on the one hand and Parliament's freedom to act on the other.

238. We therefore recommend that any UK Bill of Rights should follow the HRA model of a strong interpretive obligation, applying to legislation whenever enacted, entrenching the rights and freedoms against implied repeal, but leaving Parliament free to pass incompatible legislation if it makes it clear that that is its intention. We also regard it as very important that the strength of the interpretive obligation in the HRA is not diluted in any way in any UK Bill of Rights. We suggest a formulation of such an interpretive obligation in our outline Bill of Rights and Freedoms.

239. Consideration could also be given to requiring the consent of both Houses to any measure amending the Bill of Rights.

Emergencies

240. Any UK Bill of Rights will have to make provision for derogation from any of the rights or freedoms in times of genuine emergency. Although this was not a matter on which we specifically sought views, it clearly raises questions concerning the impact of any Bill of Rights on the relationship between Parliament, the Executive and the courts.

241. In our recent Report on 42 Days and Public Emergencies we pointed out that the current legal framework governing derogations from human rights guarantees contains very little in the way of judicial or parliamentary checks.[204] We therefore recommended, in the context of that Bill's particular proposal to provide a reserve power to extend the maximum period of pre-charge detention to 42 days, that the Bill be amended to provide a clear framework for any future derogation from the right to liberty, incorporating the necessary safeguards to ensure that any such derogation in the future is lawful.[205]

242. Derogation from human rights in times of emergency is currently an essentially executive function, performed under the executive's prerogative powers and accompanied by no formal requirement that Parliament be involved in any way, or any guaranteed opportunity of challenging it in court. We recommend that in any UK Bill of Rights the opportunity is taken to introduce parliamentary and judicial safeguards against wrongful derogation from rights and freedoms and to spell out clearly the conditions that would be required to be met in order to justify a derogation.

243. We suggest a formulation of such a clause in our outline Bill of Rights and Freedoms. The clause would prescribe the conditions that have to be satisfied for a state of emergency to be declared (e.g. a serious threat to the life of the nation), and the criteria for any derogation to be valid (e.g. derogation may only be to the extent strictly required by the emergency and consistent with international obligations). The clause could also enhance the role of Parliament in the process by requiring that a state of emergency must be confirmed by Parliament before any derogation from rights and freedoms in the Bill can be made. It could also enhance Parliament's role by stipulating a strict time limit on the duration of such a declaration of a state of emergency and of any emergency legislation.

Judicial appointments

244. During our visit to South Africa, the importance of a truly independent and diverse judiciary to the success of a Bill of Rights was frequently raised by interlocutors.

245. Baroness Hale has been outspoken about the need for a more diverse judiciary. In her lecture, Equality in the Judiciary: A Tale of Two Continents,[206] she referred to the HRA as one of the factors which has "clearly increased the social and 'small p' political content of the judging task." This has made it all the more important that the judiciary becomes more diverse:

Judicial appointments have traditionally been dominated by the assumption that those best fitted for appointment - and thus fitted for the best appointments - are those who have done best in independent practice as barristers. This has excluded large numbers of very able lawyers from consideration and limits selection to a comparatively small and homogenous group. … That homogenous group is very largely male, almost all white … and from a comparatively narrow range of social and educational backgrounds.

246. In evidence, she confirmed that she would like to see the pool from which judges are recruited widened, including from amongst Tribunal chairs.[207]

247. The Constitutional Reform Act 2005 introduced a number of reforms to judicial appointments, including a new judicial appointments commission, which were intended to address the admitted problem of lack of diversity in the higher judiciary. Our predecessor Committee was concerned in its Report on the Constitutional Reform Bill that the new system for judicial appointments introduced by that Bill fell short of what is required by international human rights standards relating to the independence and impartiality of the judiciary, its diversity, and the right of women to have the same opportunity as men to participate in public life, including as judges.[208]

248. The Justice Secretary told the House of Commons Justice Committee that "expectations that the new system of appointing judges would lead to a more diverse judiciary have so far not been fulfilled."[209]

249. We welcome the Government's express recognition that a more diverse judiciary with increased understanding of the communities it serves will contribute to increased public confidence in the justice system, which will be especially important in the context of a UK Bill of Rights.[210] We look forward to the Judicial Appointments Commission giving practical effect to the widely shared view that the pool of people from whom judicial appointments are currently made is significantly widened as a matter of urgency.

187 See e.g. the written evidence of British Irish Rights Watch (Ev 101) and Jonathan Doyle (Ev 125). Back

188 Q 2. Back

189 Ev 131. Back

190 Sixteenth Report of Session 2006-07, Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights, HL Paper 128, HC 728, para. 1. Back

191 Q 19. Back

192 See e.g. Michael Wills MP, The constitutional reform programme, speech at the Leslie Scarman Lecture, 13 February 2008: "the solution is not to replace representative democracy. For this government, representative democracy - and therefore Parliament - must remain at the heart of the governance of this country." Back

193 Ev 184. Back

194 Section 19, Human Rights Act 1998. Back

195 Q 463. Back

196 Section 44. Back

197 See e.g. Tenth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008, HL Paper 57, HC 356 at paras 19-34; Twenty-fifth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Twelfth Report): Annual Renewal of 28 Days 2008, HL Paper 132, HC 825 at paras 9-19. Back

198 Post-legislative scrutiny - The Government's Approach (Cm 7320), announced by written ministerial statement by the Leader of the House of Commons, Harriet Harman MP: HC Deb 20 March 2008 c74WS. Back