Democracy and the Human Rights Act

Republican Analysis of Citizen Power

Dennis Dixon

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351999953
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book discusses the extent to which the UK Human Rights Act successfully balances protection of rights and democracy. It is generally accepted that the Act prevents government from violating fundamental rights, but the extent to which the Act can legitimately be overridden as a result of public opinion and participation is less clear.

The work considers the Act's effect on this popular element of the British Constitution. It uses analytical tools from republican political theory to explore the claim that the Act achieved a reconciliation between the protection of rights and democracy. In particular, it employs republican analysis of domination to consider how the Human Rights Act could operate so that public opinion invigilates legislative responses to judicial decisions. The key question is whether judicial decisions under the Human Rights Act serve to 'remove, reduce or replace' opportunities for the electorate to control judicial decision-making, remembering always that the electorate is seldom engaged in politics, but should it choose to, its ability to do so is at the heart of democracy. The study also examines the difficulty of isolating national constitutional forms where bills of rights are internationalised as with the European Convention on Human Rights.

The book will be a valuable resource for students and academics researching constitutional legal theory and comparative constitutional law. While the focus is on the UK HRA, broader theoretical issues of constitutional review will have significant international interest and relevance to domestic debates on a British Bill of Rights.

1 Introduction

Lord Justice Laws, speaking judicially, said of the Human Rights Act: ‘Its structure, as has more than once been observed, reveals an elegant balance between respect for Parliament’s legislative supremacy and the legal security of the Convention rights’ (International Transport Roth Gmbh v Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] QB 728 [71]).

The Human Rights Act brought constitutional review to the United Kingdom, which is to say made it possible for courts to review primary legislation for compliance with published constitutional or human rights. As the above quote from Laws LJ suggests, it did so by maintaining the supremacy of democracy. Introducing the legislation, the Lord Chancellor, Lord Irvine, described the then Human Rights Bill as being ‘carefully drafted and designed to respect our traditional understanding of the separation of powers’ (HL Debates, 1997a: col. 1228). The Government White Paper preceding the Act stressed the importance in a democracy of maintaining the supremacy of the ‘elected, accountable and representative’ House of Commons (White Paper, 1997: [2.13]). Lord Scarman, one of the longest standing proponents of introducing constitutional review to Britain, argued that ‘[t]he quality of the Bill is that it recognises that in a democracy, the democratically elected assembly – for us, that is Parliament – must be sovereign’ (HL Debate, 1997a: col. 1256).

Despite many such claims and plaudits, the Human Rights Act remains a matter of political controversy and public debate in the United Kingdom. Whereas the Canadian equivalent, the Charter of Rights and Freedoms, had within its first twenty years reached a politically unassailable position in national political culture (Manfredi, 2001: pp. 187–188), the Human Rights Act’s very existence in the United Kingdom remains one of active political controversy. The Conservative Party (2015) manifesto for the 2015 election promised reform of constitutional review in terms of introducing a ‘British Bill of Rights’ in place of the Human Rights Act. In the course of the EU Referendum debate, the then Home Secretary, Theresa May, argued not for ‘Brexit’ from European Union but from the European Convention on Human Rights (‘ECHR’ or ‘the Convention’) (BBC Online, 2016). The prospects of such action appeared to recede in the aftermath of the referendum vote to leave the European Union, but since then the new Justice Secretary has placed the creation of a British Bill of Rights in place of the Human Rights Act on the agenda, although with no plan to denounce the ECHR itself (Elgot, 2016; Wilkinson, 2016). Whatever might happen in the near future, the nature of constitutional review in Britain is a live subject for political debate.

However, whilst the immediate subject matter of this book may be in danger of being abolished, the fundamental issue addressed in the book will remain. There appears to be no intention to abolish constitutional review in the United Kingdom. The intention appears to be to create a British Bill of Rights. Similarly, there appears to be no intention to denounce the European Convention, but instead to sever the interpretative link between that Convention and British human rights adjudication. If a British Bill of Rights were to be enacted, there appears to be no suggestion that it will give domestic judges greater power than exists under the present Human Rights Act. The central issue of whether the Human Rights Act achieved the ‘elegant balance’ asserted by Lord Justice Laws centres on the importance of judges having no power to set aside Acts of Parliament, but being limited in terms of direct consequences to an interpretative power. As such the issue of whether the Human Rights Act achieved the putative ‘elegant balance’ will remain of importance whether because the Act itself remains, or the body of the Act forms the basis of a British Bill of Rights, or as a case study for the possibly intractable question of whether an effective bill of rights can co-exist with an effective power to ignore judicial decisions made under it.

The elegant balance

This ‘elegant balance’ hypothesis can be stated simply. The Human Rights Act operates as a bill of rights in that it sets out a list of fundamental rights by incorporating rights protected by the European Convention. The courts interpret the meaning of these rights, and decide whether any derogations are justified in any particular case. The power of the courts is subject to limitations where primary legislation was concerned. When faced with primary legislation that conflicts with the requirements of the Act, the courts cannot set aside the offending statute. The courts can either (a) under section 3(1) of the Act seek an alternative rights-compatible interpretation of the statute concerned, or (b) issue a declaration of incompatibility under section 4, if such an interpretation is impossible. If a declaration of incompatibility is issued, then there is a fast-track procedure for introducing remedial legislation, which requires affirmative resolutions on the part of both Houses of Parliament rather than the full procedure for passing Acts of Parliament. Parliament is entitled to ignore declarations of incompatibility, and can overturn purposive interpretations. Parliament is free to exercise its sovereignty as regards individual decisions of the courts. The Human Rights Act does not dictate what the law must or must not be – as, for example, is the case when the US Supreme Court strikes down an Act of Congress. Instead, the Act directs the minds of the government and legislature to the human rights issues, and ensures that there is a fully reasoned human rights analysis on which legislators can focus. The Human Rights Act focuses Parliamentary attention on rights issues not just through litigation: section 19 requires that a Minister presenting a Bill to Parliament should either make a ‘statement of compatibility’, or make a formal request that Parliament should proceed despite possible incompatibility.

The Human Rights Act thus incorporated procedures that bring human rights issues to the fore. It requires ministers to seek legal advice on whether their proposals were human rights-compatible; and at the other end of the process, litigation would give ministers and legislators a reasoned judgment on how incompatible legislation offended human rights. And, of course, behind the workings of the Human Rights Act in the United Kingdom stands the Convention at the international level. Lord Bingham in the Human Rights Bill debate stressed that the Bill would provide a mechanism to reduce the need for British cases to be brought to Strasbourg, and for British case law to influence that of the European Court of Human Rights (‘ECtHR’ or ‘Strasbourg’) (HL Debates, 1997a: col. 1245). However, the Act was structured so as to also keep the Convention to an extent at arm’s length. The decisions of the ECtHR lack direct authority in the United Kingdom. As a matter of domestic law, the case law of Strasbourg is something for domestic courts to ‘take into account’. The ECtHR’s decisions do not pass into domestic law – as a matter of the legislative response to such decisions, Parliament’s freedom (such as it is) to ignore international law obligations was unchanged.

The reconciliation or balance sought in the Human Rights Act addressed a fundamental tension in modern constitutional thought that arises whenever a system of constitutional review is created to protect fundamental rights. It is, as Bickel (1962, p. 16) explained: ‘[t]he root difficulty is that judicial review is a counter-majoritarian force in our system’, yet ‘democracies do live by the idea, central to the process of gaining the consent of the governed, that the majority has the ultimate power to displace the decision makers and to reject any part of their policy’, (p. 27). However, the counter-majoritarian effect is not a side-effect of constitutional review but a goal. It is precisely the fear that democratic process may violate human rights that forms the principal justification offered for creating systems of constitutional, although an extensive study has suggested that legislators’ motives are often less noble, including a desire to guarantee the continuation of their policies following anticipated electoral defeats (Ginsberg and Versteeg, 2013, p. 587).

For this reason, the subject of constitutional review inherently exists in the context of a debate on achieving, as Baroness Hale said, ‘a fair balance, between the universal values of freedom and equality embodied in the Convention, and the particular choices made by the democratically elected Parliaments of the member states’ (Hale, 2011: p. 21). There are of course those in the debate whose views are inherently hostile to compromising one or other of those principles. There is the argument that Parliament should be unfettered, which is often based on a faith that ‘Parliament may possess power to enact evil laws, but can be trusted not to do so’ (Goldsworthy, 2000; p. 704). And there are fears that Parliamentary Sovereignty may be the route to enacting oppressive regimes, as was the case with apartheid legislation in South Africa (Goldsworthy, 1999: pp. 260–261). Sir Stephen Sedley (2015; pp. 273–275), writing recently, put forward the examples of Nazi Germany and apartheid South Africa as to why the rule of law requires restraints on the range of decisions that might be taken by a legislature, a point also made by Danny Friedman (2016: pp. 384–385). The Human Rights Act is structured so as to neither wholly accept nor wholly reject faith in Parliament nor fear of what it might do. The Act was drafted keeping in mind competing worries about ‘majority tyranny’ (Ely, 1980: pp. 7–8), and ‘the counter-majoritarian effect’ (Bickel, 1962: p. 16). Faith in Parliament is not so strong as to leave primary legislation outside of judicial scrutiny, but nor is that faith so weak as to deny Parliament the final word speaking in its ordinary way through statutes. The balance struck is somewhat in-between, but the question is: ‘where?’ Janet Hiebert (2015: pp. 57–58) has argued that a lack of debate on how the two sides of the balance should be reconciled has led to unprincipled opportunism: ‘a willingness to invoke whichever one perspective best serves the argument at hand’.

Republicanism and democracy

It is, of course, possible to deny the utility of such an investigation. Firstly, it might be argued that there is no genuinely democratic side to the constitution worth investigating. Secondly, it might be argued that democracy inherently includes rights protection, so everything is on the same side of the metaphorical balance.

We shall see that, for many, a realistic view of democracy is one of power concentrating in elites who rule a largely passive electorate – this elitist (or Schumpeterian) version seeing democracy largely in terms of enforcing governance (Schumpeter, 2011: pp. 284–296; Arora and Awasthy, 2007; p. 107; Sunstein, 1988: p. 1556). If this view is correct, then any weaknesses in democratic control of government and legislation – weaknesses in what Dicey (2008: pp. 8–9) described as the link between public opinion and legislative change – would be intractable. This would doubtless affect concern for the ‘democratic’ side of the rights/democracy balance. For example, Richard Clayton and Aileen Kavanagh have separately questioned how strong democratic concerns should be in the debate on constitutional review matters given that the link between public opinion and legislation is often weak or even non-existent (Clayton, 2004; p. 40; Kavanagh, 2009: p. 376; see also Fredman, 2001: pp. 199–200). Against this, John Hart Ely (1980: p. 67) notably argued that the cure for too little democracy ought to be more not less democracy. But if the elitist (Schumpeterian) approach is correct and Ely’s ideal solution of ‘more democracy’ is not in practice available, then the counter-majoritarian objection to constitutional review would be irrelevant. All that would have changed was the nature of the decision makers, not the electorate’s control over the state, which, ex hypothesi, would remain illusory.

The second way of undermining the very utility of the investigation is the opposite of that described in the last paragraph: instead of narrowing our understanding of democracy so that the electorate’s concerns are sidelined, we could expand our understanding so as to internalise rights protection within our concept of democracy. This is essentially the ‘rights-based’ concept of democracy particularly associated with Professor Jowell (2003: p. 597) – the argument that there are substantive values which are component parts of democracy. We shall return to this in the next chapter.

However, it should be stressed that neither of the above arguments address the counter-majoritarian difficulty. The democracy-based objection to constitutional review cannot be seen as a philosophical debate around the true nature of democracy, but must be seen from the perspective of citizens and their position in the state. If a citizen objects that judges are overruling the concerns of the public in matters of importance, then it is no answer to say that, probably understood, democracy allows for, or requires, such a judicial power to exist. Citizens are interested in where power lies, in their relationship to it, and whether the resulting system will work well or badly. Abstract arguments over whether ‘[our] notion of ‘democracy’ … is no longer synonymous with ‘majority rule’ (Jowell, 2006: p. 575), or whether the rule of law requires substantive rights protections (Sedley, 2015: pp. 273–275; Bingham, 2010: pp. 66–84), collapse the distinction between the benefits of constitutional review and the citizen’s power in the state. Anthony Downs (1957: p. 150), concluding his original economic theory of democracy, argued: ‘The way every government actually makes decisions depends upon the nature of the fundamental power relation between the governors and the governed in its society’. The ‘governed’, are entitled to know their position in this fundamental relationship – and should be fully informed when making constitutive choices (Bingham, 2010: p. 170). An analysis of the impact of a system of constitutional review on democracy is thus the analysis of how far, within the relevant constitutional forms and practice, the effect of constitutional review is within the reach of public opinion.

Republican theory

The twin claims of the ‘elegant balance’ is that the Human Rights Act gives the judiciary a power to interfere with legislative and executive decisions by reason of protecting fundamental rights, but that such power is subject through Parliamentary Sovereignty to a still-dominant force in the shape of democratic decision-making. The reality of the political power to restrain judicial power of interference, and the electorate’s relationship with that power, require close and realistic analysis. This book will take as its principal theoretical framework Philip Pettit’s (2008; 2009, pp. 42–49; 2012, pp. 26–74) systematisation of power relationships, identifying where relationships of domination exist or do not exist. It is an approach which can be used, without being laden in predetermining value judgments, to reveal the ‘fundamental power relation between the governors and the governed’.

Applying Pettit’s analysis, we will argue that democracy in any system of government, depends on the following proposition: any individual must be able to think rightly that, ‘If a majority of fellow citizens can be convinced that X is right, then we-over-time can achieve X’. If such a majority in public opinion can be formed, then there is no veto-holding power that must be convinced, nor any external force that must be overcome. This does not mean that there are no influences external to public opinion that affect decision-making calculations, but such influences either (a) work by affecting public opinion by contributing to electors’ reasoning, what Pettit describes as a ‘co-reasoning’ role, (b) are always subject to correction if the external influence promotes ideas unacceptable to public opinion, what Pettit describes as a power of ‘counter-control’ (Pettit, 2008: pp. 116–118), or (c) are part of the facts of life that government needs to address, as opposed to an attempt to influence government.

At the heart of a citizen’s political freedom is the freedom to choose laws and policies insofar as this is consistent with his or her political equality with other citizens. This freedom of undominated choice amounts to the ability to think and think rightly, ‘I can do that’ (Pettit, 2008: pp. 110–111), which in a representative democracy amounts to a less egotistical, ‘if a majority of fellow citizens come to share my opinion, we-over-time can do that’. It would be impossible for a citizen to think that and be right where constitutional review is determinative as to what must or must not be done. Constitutional review might make the citizen’s ‘we-can-do-that’ hypothesis become contingent on judicial support (‘we-can-do-that, but we must also gain judicial permission’), or might even become wholly independent of achieving majority support (‘we-can-do-that, and need only to convince the judges’). In such cases the freedom to choose would be subject to domination external to a body of equal citizens. The judges will exercise what Pettit calls ‘alien control’.

Democratic theory

Having set out the tools of analysis for power relationships, it will be necessary to apply those tools in due course to the British constitution as affected by the Human Rights Act. To do so first, the generalised republican analysis of non-domination must be brought within an understanding of democracy itself. What will be set out is an approach which identifies the different levels of decision-making and deliberation within a democracy, and then draws from Robert Dahl’s theory of ‘polyarchy’ and David Beetham’s ‘democratic audit’ to create a practical analysis congruent with Pettit’s analysis of domination.

The republican ideal is that there should be a system of popular control which is ‘properly individualised, unconditioned and effective’ (Pettit, 2012: p. 279; see also p. 302). However, Pettit set out a ‘dual-aspect’ theory of democracy in that the citizens are free to choose systems which fall short of a democratic ideal. In every choice as to voting system, terms of office, use of referenda, use of bills of rights, there are issues of democracy, efficiency, and stability. The expression of individual opinion within a system of government and legislation is by participating in the political system as constituted. The key form of participation is the act of voting, whether voting for representatives or directly for laws. Without public voting any actual citizen participation in public debate is not systematically connected to legislative change. A system of democracy is a system for participation – where electors may decide how to vote and seek to influence the voting decisions of others. Democracy is, as David Beetham’s democratic audit demonstrates, a matter of formal constitutional structures and social qualities – ‘the quality and vitality of a country’s democracy will be revealed in the character of its civil society as well as its political institutions’ (Beetham, 1999: p. 166). The theory of ‘polyarchy’ expounded by Robert Dahl is instructive. Any system of democracy with a representative element (which means any imaginable, workable system) will give immediate power to elected politicians and officials. Unless the electorate, meaning all electors as individuals, can participate in decision-making on a position of equality, the system will tend towards a ‘closed-hegemony’; but, insofar as the system permits such participation, it can be called a ‘polyarchy’. Democracy is never obtained. Instead, a polyarchy, by being open to the public exercising their participatory rights to displace the power of politicians and officials, will tend towards democracy (Dahl, 1956, pp. 63–89; 1971a; 1971b; 1989: pp. 225–264; 2000).

A constitution will represent choices as to how public opinion should control government and legislation...