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Cracking the Enigmatic Code (1 of 2): ‘But will Hrunting bite?’

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Edited by John Gynn, Thursday, 26 May 2016, 17:01

What might the EU Referendum result mean for UK constitutional law in a European context?

In an interesting discussion on the BBC’s Daily Politics programme on Thursday 19th May (hyperlink below – the discussion starts at 17 mins 30) the Leader of the House of Commons, Chris Grayling, offered some intriguing, albeit somewhat faint, illumination into the Government’s position with regard to a proposed Bill of Rights replacing the Human Rights Act 1998.  Though only barely discernible, wrapped as it was in rather opaque terms, it does, at least, offer some foggy bearing as to the Government’s policy path regarding human rights law.

What made the Daily Politics conversation particularly engrossing is that Mr Grayling’s enigmatic account regarding a Bill of Rights may, arguably, sit like something of a cuckoo’s egg within the wider political nest of eggs representing the current debate concerning the UK’s membership of the EU.

That cuckoo’s egg analogy is, perhaps, useful here as it reflects a common misconception as between European Union (EU) law, on the one hand, and the law of the European Convention on Human Rights (ECHR) on the other hand. The distinction between the law of the EU & the law of the ECHR is fundamental - yet it often deceives even considered scrutiny due to similarities which can suggest, erroneously, that the two are one and the same. Like a cuckoo’s egg ECHR law has a different nature when compared to the law of the EU (ECHR & EU law are, in fact, completely distinguishable) yet the two are, all too often, mistakenly perceived to be identical because of some overlapping characteristics.

Chris Grayling is a member of the ‘Brexit’ campaign which stance, as with any policy preference, perhaps imparts equal portions of heat and light, into the Daily Politics conversation. Certainly the mix of fractured political & contentious legal afforded intriguing glimpses into the depths of a simmering cauldron within the current EU membership debate.

With this BBC iplayer resource only available for a relatively short period, of less than a month, the essentials of the conversation are transcribed here. The Government’s subsequent policy can, later, be measured, to an extent, against the hints and glimpses into the policy position given here prior to its publication. That might, at least, illuminate the pre-legislative process relating to the domestic development of human rights law.

Mr. Grayling said that he “expected legislation” replacing the current Human Rights Act 1998 to result “soon… in the not too distant future” - though after a process of consultation. The Government, Mr. Grayling continued, would, “bring forward detailed proposals [relating to a new Bill of Rights to replace the Human Rights Act 1998]… have a broad discussion about them; for example with the devolved administrations and then we’ll move on to legislation’. So the process envisages Government proposals, consultation/discussion then legislation. Human rights in the context of devolution would arise again; as the conversation closed.

Mr. Grayling continued with, what might well have been, a clearly considered phrase; “it’s about rebalancing the relationship between our courts and the European court”. So a ‘rebalancing’ as between the powers of the UK Supreme Court & the Strasbourg Court in the field of human rights seems to be what the Government has in mind. The cliché ‘evolution not revolution’ therefore seems to be applicable in the field of domestic human rights development when viewed through the prism of Government policy.

The Daily Politics’ Jo Coburn asked how clear change could result in this field, “unless we leave the European Convention on Human Rights?”

Mr. Grayling responded; “there’s a number of ways in which you can strengthen the powers of our courts but you’re going to have to wait for the consultation document to see that I’m afraid.”

The impressive interviewer Jo Coburn looked to decode this enigmatic response: “Well I’ll be intrigued, I can’t really see how that works, we’ve spoken to so many people; you can’t actually change the supremacy of those courts - those European courts (Andrew Neil nodding in agreement here) - unless the UK leaves the European Convention on Human Rights, which is perhaps what’s going to be proposed?”

Mr. Grayling, no doubt consciously elusive, replied that he was not going to announce the Government’s proposals at that moment and again repeated that the publication of the Government’s plans would need to come after the consultation.

Tenaciously pressing Mr. Grayling on the issue of complete Convention severance, Jo Coburn continued: “Do you accept that that [i.e. leaving the ECHR] is what would have to happen in order for UK courts to be supreme over [the] European court [in Strasbourg]”?

It’s worth pausing here to contemplate the idea of complete severance. No doubt some continuing inter-relationship between the U.K. Supreme Court & the Strasbourg court would persist even if the U.K. did opt to remove itself entirely from Convention obligations; there is just too much jurisprudential proximity between the two forums. It’s arguably a little like the Moon & the Earth still being subject to each other’s significant gravitational influence regardless of their physical separation. Even if practically removed, the one from the other, the mutual orbit of the two bodies means that there would be a permanent relationship between the two.

 Moreover, discussion of complete severance as between Strasbourg & domestic law may well be a ‘red herring’ in the broad scheme of things anyway; given recent glimpses into Government thinking and, as importantly, hints as to the standpoint of the Justices of the UK Supreme Court on the matter.

Government policy seems to point towards a strengthening of the powers of the UK Supreme Court (merely, yet, paradoxically, with enormous significance, adjusting the current power relationship with the courts in both Strasbourg and Luxembourg) which will neither require complete Convention severance nor an end to the UK’s membership of the EU. The paradox can be understood by considering the significant impact that can result where the direction of a mountain brook is diverted resulting in a marked change in the topography downstream. A seemingly innocuous change in the approach of the UK Supreme Court could have disproportionate – indeed Herculean - leverage.

To the Government’s move towards a rebalancing in the field of human rights can be added the fact that some, at least, of the current formidable UK Supreme Court Justices (Lord Neuberger, Lady Hale, Lord Sumption & Lord Reed certainly spring to mind) have provided some clues as to a like-minded judicial inclination towards buttressing core domestic constitutional principles (such as article 9 of the Bill of Rights 1689) from any future adverse erosion resulting from ECHR and EU law. Seeking solutions from the common law, in place of automatic recourse to EU or ECHR law, will be a significant part of this new judicial bulwark designed to bolster the constitutional pillars of domestic law against what Lord Denning, in Bulmer v Bollinger 1974 Ch 401 described as the ‘incoming tide’ of European law.

The HS2 case (22nd January 2014 UKSC 3) certainly provides striking obiter remarks concerning scope for a judicial bulwark regarding EU law. Lord Reed, at para. 111 of HS2, drawing on the example of courts in other EU member states that may, very likely, act as a template for the UK Supreme Court’s approach says: “There is… much to be said for the view, advanced by the German Federal Constitutional Court in its judgment of 24 April 2013 on the Counter-Terrorism Database Act, 1 BvR 1215/07, para 91, that as part of a co-operative relationship, a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order.”

Such judicial movement would seem to dovetail neatly with that of the Government into an imposing policy bond redefining domestic law in the face of European influence. What is interesting is the question; have the courts actually been endeavouring to pre-empt the Government’s anticipated ‘rebalancing’ exercise? Free of the influence of the populist influences that shackle many Governments in policy-making, the judiciary can operate serenely – like a passing swan - while Governments furiously flap beneath the surface like the swan’s feet. The only trouble with the analogy is that it is the furious flapping that is most readily visible. It may be that the Justices are conscious that it may require the force of reinvigorated common law together with renewed emphasis of the principle of Parliamentary sovereignty properly to rebalance the relationship between domestic and European law.

These most informative glimpses into wider judicial thought, discernible in obiter statements & judicial lectures, will be considered in greater detail in a separate post (Cracking the Enigmatic Code 2 of 2) drawing, amongst others, from an illuminating symposium on human rights held at the University of Strathclyde in Spring of 2014, in honour of Lord Hope of Craighead, with insightful contributions from Lords Neuberger, Sumption and Reed.  

Change in the relationship between the U.K. Supreme Court and both European courts (Strasbourg & Luxembourg) would represent something of a tectonic shift – that is particularly so when the relationship between domestic law and EU law is considered.

Sometimes what is not said can be as interesting as what is said. There was no mention at all, in the Daily Politics discussion, of the Court of Justice of the European Union (CJEU).

Yet, as will be noted in the subsequent post, Lord Reed has described the CJEU as the ‘Elephant in the Room’ in the context of human rights. Now, bearing in mind the caution, above, about the cuckoo analogy – human rights and EU law should be conceptually separated in any debate - that makes Lord Reed’s input seem all the more intriguing. However that’s for later; set, ‘the Elephant in the Room’, aside for the moment.

Back to the redefined powers of the U.K. Supreme Court: While legal boundaries will be significantly realigned after this tectonic shift, the broader landscape of the law in a European context will, essentially, continue to look familiar. A ‘Bremain’ vote in the EU Referendum will certainly make for a more familiar legal landscape than a ‘Brexit’ result.

So, to reiterate, a likely ‘rebalancing’ (as opposed to complete severance) is discernible as a workable (indeed likely) approach in the development of both significant inter-court relationships; on the one hand, between the U.K. Supreme Court and the Strasbourg Court relative to the law of the ECHR but also, on the other hand, the relationship between the U.K. Supreme Court and the Court of Justice in Luxembourg relative to EU law.

The ability of domestic law to address concerns resulting from Strasbourg decisions is significant, though not astonishing. Under section 2(1)(a) of the Human Rights Act 1998, in interpreting Convention rights, U.K. Courts need only, ‘ take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.”

The Government’s efforts to address any perceived threat to domestic law from Strasbourg is rather like Beowulf shielding King Hrothgar’s Hall from Grendel. What is certainly more notable, indeed perhaps heroic, is that domestic law should, like Beowulf, don princely headgear, grasp famed sword Hrunting, and seek to tackle the Court of Justice of the European Union (this ‘powerful other one’ as Seamus Heaney describes Grendel’s Dam in his translation of Beowulf). But will Hrunting bite or will the fabulous powers of that heirloom fail? Perhaps only when another ancient heirloom, the common law, is wielded will any perceived ‘grim embrace’ of the Court of Justice of the European Union be loosened?

Of course, the EU Referendum result will impact on the exact nature of any rebalancing exercise.

Back to the televised discussion and Mr. Grayling replies to Jo Coburn’s question on complete ECHR severance: “Well we’ve set out plans (here Mr. Grayling rather hesitates in his choice of words, perhaps being cautious not to disclose too much - yet not miss the opportunity to flag the importance of the topic) to change the whole nature of human rights laws in this country, to make our courts stronger, but the detail you’re going to have to wait for I’m afraid”.

Still seeking clarification, Jo Coburn asks: “So it would make our courts supreme over [the] European court [at Strasbourg]?”

“The aim is to make our courts much more the influencing point when it comes to human rights law in this country” replies the cabinet minister.

Here Andrew Neil joins in seeking clarification from Mr. Grayling: “The question Jo asked was supreme, that’s the key word, are you aiming to make our courts supreme?”

Chris Grayling: “In our manifesto… you’ll see we talked about our Supreme Court having the final say, but you’ll have to wait for the details”

Jo Coburn: “It [the U.K. Supreme Court] would have the final say then over a European court… to be clear…?”

Chris Grayling (seeming to become a little uncomfortable as the atmosphere becomes tense): “Well I’m not going to air the details today.”

Jo Coburn: “Well it’s not a detail, it really is quite binary”

Chris Grayling: “Well I’m going to leave that for Michael [Gove] when he announces the consultation package, you’ll see the details of what’s being proposed then.”

It’s always useful to inform your learning with an understanding and awareness of any partisanship in advocacy to allow you to arrive at a reasoned and objective position in any debate. Of course you should adopt whatever stance you, personally, feel most drawn to - based on reasoned and diligent research - but to come to a well-considered position, it’s useful to be conscious of any possible bias colouring the information that you are researching.

Here it’s worth remembering that the issue is being considered amidst a debate within the U.K. that includes a passionate, sometimes rather fractious, split within the Westminster Parliament and the Government itself. Mr. Grayling and Mr. Gove are prominent Cabinet members, the organising mind of the Government. Sir Ivor Jennings (in Cabinet Government, 1959, p.228) considers the cabinet to be analogous to, ‘the board of directors… the directing body of the national policy… able to forward that policy by reason of its control of the House of Commons’. Both Mr. Gove and Mr. Grayling are supporting the ‘Brexit’ campaign - advocating that the UK exit the EU. In this instance, the doctrine of collective cabinet responsibility is suspended so Cabinet Ministers are free to advocate an individual position on EU membership.

As a reminder, ‘collective cabinet responsibility requires that each member of Cabinet, and all the government Ministers and Parliamentary private Secretaries, are bound by the decision of the Cabinet’ (Hilaire Barnett, Constitutional & Administrative Law, 2016, p.213).

Some Government plans preceded the intensity of the EU debate. In a public lecture in August 2014, ‘The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience’, Lord Neuberger, currently President of the UK Supreme Court, said: “[T]he Conservative Party appear to be seriously considering whether to take away this power [i.e. the power under section 4 of the Human Rights Act 1998 to declare a statute to be incompatible with the ECHR], or at least to modify it, if they win next year’s General Election. Like the Victorian Charter, the HRA is under political review.’ Note that ‘modification’ and ‘rebalancing’ could be considered political synonyms.

Back to the Daily Politics and Andrew Neil asks if he can check something quite important.

Andrew Neil: “The European [Convention] on Human Rights is written into the Scottish devolution settlement, it’s part of the devolution settlement. You cannot change that, you can’t come out of it without the permission of the Scottish Parliament, which, I think, you will know as well as I, you won’t get. So you’re just going up a cul-de-sac here”.

At this point it is useful to pause and consider Andrew Neil’s point. Here this undoubtedly outstanding political journalist could, perhaps, have clarified one aspect of his question – at least in so far as the law is concerned. Not concerning the incorporation of the Human Rights Act 1998 into Scots law. That actually took effect in Scotland in 1999 - a year ahead of England & Wales.  Andrew Neil was certainly on the mark regarding the intermingling of the Human Rights Act 1998 and the devolution settlement.

However, in law, the Westminster Parliament can assert its sovereign legal authority over Holyrood by e.g. implementing legislation against the will of the Holyrood Parliament. Section 28(1) of the Scotland Act 1998 provides: ‘Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament’. (Section 29 then provides: ‘An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament’). However section 28(7) of the Scotland Act 1998, importantly, manifests the continuing sovereignty of the UK Parliament in law in the devolution arrangement: ‘This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. In theory, that could include Westminster legislation removing the Human Rights Act 1998 from its position in the devolution arrangements – substituting a new Bill of Rights in its place. The complexity of that undertaking, alone, would make that a very difficult undertaking. (Holyrood discussed the EU Referendum on Thursday morning, 26th May 2016. The point will, no doubt, be raised).

That statement of constitutional law, with Westminster sovereign in law, is juxtaposed, it seems at first sight incongruously, with the concept of sovereignty in a political sense. That political element significantly moderates the strictly legal position. McFadden & Lazarowicz (2010, p.10) clearly identify, amongst other things including the impact of EU law on sovereignty, the distinction between sovereignty in its legal sense & sovereignty in a political context:

‘The sovereignty of the UK Parliament has undoubtedly been modified by our membership of the European… [Union] but, as far as domestic or national law is concerned, the doctrine remains firmly in place. Thus, any parliament or assembly created by the UK Parliament is a subordinate body… It may not only be overruled by the UK Parliament, it may even be abolished by it. Of course, this is legal theory and account has to be taken of practical politics. If the Scottish Parliament remains a relatively popular institution, no government at Westminster would want to incur the wrath of the Scottish electorate by interfering with the Scottish Parliament without good cause.’ (The Scottish Parliament: an Introduction, 2010).

Let’s return to the Daily Politics.

Chris Grayling (now with a confidence that might suggest that the matter has been deeply considered and given iron-clad confirmation by Government counsel) addresses Andrew Neil’s point on human rights protection being woven into the Scotland Act 1998: “Well, what’s written into the devolution settlement in the Scotland Act is the wording of the Convention [i.e. the ECHR]. We have never said that we want to walk away from the principles of the Convention. The issue is, that over a lengthy period of time, the courts have moved away from where we believe that human rights laws should be, they’ve moved away from the original spirit of the Convention. Our document, when it comes out, will seek to address that”.

Jo Coburn (smiling): “Right. Well, as I say, we’ll be picking through that with a fine tooth-comb”

Chris Grayling (chuckling): “I’m sure you will”.

As a ‘segway’ into a subsequent post considering the views of the U.K. Supreme Court Justices on the relationship between the U.K. Supreme Court & the courts in Strasbourg and Luxembourg, here is an extract from Lord Sumption’s lecture in Kuala Lumpur in November 2013, ‘The Limits of the Law’, which reflects the point mentioned by the Leader of the House of Commons in the Daily Politics discussion above that the Strasbourg court has moved away from the original spirit of the Convention, yet demonstrates Lord Sumption’s ‘noble courtesy’ - Seamus Heaney’s words again - in respecting his peers and predecessors by supporting the original principles of the Strasbourg Convention:

“The text of the Convention is wholly admirable. It secures rights which would almost universally be regarded as the foundation of any functioning civil society: a right to life and limb and liberty, access to justice administered by an independent judiciary, freedom of thought and expression, security of property, absence of arbitrary discrimination, and so on. Nothing that I have to say this evening is intended to belittle any of these truly fundamental rights. But the European Court of Human Rights in Strasbourg stands for more than these. It has become the international flagbearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the Convention as what it calls a “living instrument”. The way that the Strasbourg court expresses this is that it interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date. Put like that, it sounds innocuous, indeed desirable. But what it means in practice is that the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order… [T]he frame of mind underlying the case-law of the European Court of Human Rights is symptomatic of a much wider phenomenon, namely the resort to fundamental rights, declared by judges, as a prime instrument of social control and entitlement”.

Rebalancing is a sufficiently malleable term as to be applicable whatever the outcome of the EU referendum. That may be why it has been employed. The Conservative Party Manifesto (2015, p.62) is also somewhat equivocal, noting, again rather enigmatically, that the Government will, ‘break the formal link between British courts and the European Court of Human Rights’. The Government are explicit in stating they will remain faithful to the basic principles of human rights but reverse the mission creep that has meant human rights being used for wider purposes (2015, p.74).

If the EU Referendum result is for ‘Brexit’, the legal landscape will have settled sufficiently to reinforce the concept of Parliamentary Sovereignty to reinvigorate the concept both in a legal and political sense, at least to an extent, from its present dissolved form; barely discernible as a soluble tint in a cocktail of solvents ranging from international law to devolution. What practical utility will be gained from a defibrillated concept of sovereignty may, however, be questionable in a dynamic, global, environment. Yet the conundrum is that the roots of sovereignty remain, a persistent perennial firmly embedded in the constitutional bedrock of the UK.

If the EU Referendum result is in favour of ‘Bremain’, the rebalancing exercise will require more than just a re-emphasis of sovereignty. It is certainly possible that, on its own, a domestically reinvigorated concept of Parliamentary Sovereignty will, like Hrunting, fail. Only by recourse to that other ancient heirloom, the common law, can any perceived grim embrace of European law be loosened.

The Daily Politics discussion:

http://www.bbc.co.uk/iplayer/episode/b07ch8jj/daily-politics-19052016

Daily Politics 19/05/2016

Jo Coburn and Andrew Neil are joined by cabinet minister Chris Grayling and TUC General Secretary Frances O'Grady to discuss the latest developments at Westminster. First shown: 12pm 19 May 2016. Available for 23 days.

Seamus Heaney’s translation of Beowulf (Part 2):

https://www.youtube.com/watch?v=Zsxxg5P-DnY


Permalink 1 comment (latest comment by Chris Whittaker, Thursday, 26 May 2016, 19:29)
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