Critically Examining the Case Against the 1998 Human Rights Act

Frederick Cowell, Frederick Cowell

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315310039
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Since its inception in 1998 the Human Rights Act (HRA) has come in for a wide variety of criticism on legal, constitutional, political and cultural grounds. More recently, this criticism escalated significantly as politicians have seriously considered proposals for its abolition. This book examines the main arguments against the HRA and the issues which have led to public hostility against the protection of human rights. The first part of the book looks at the legal structures and constitutional aspects of the case against the HRA, including the criticism that the HRA is undemocratic and is used by judges to subvert the will of parliament. The second part of the book looks at specific issues, such as immigration and terrorism, where cases involving the HRA have triggered broader public concerns about the protection of human rights. The final section of this book looks at some of the structural issues that have generated hostility to the HRA, such as media coverage and the perception of the legal profession. This book aims to unpick the complex climate of hostility that the HRA has faced and examine the social, political and legal forces that continue to inform the case against the HRA.

Part I

The historical roots of the case against the Human Rights Act

Chapter 2

The Magna Carta’s tainted legacy

Historic justifications for a British Bill of Rights and the case against the Human Rights Act

Colin Murray^*

Introduction: Weaponising the Magna Carta

Events styled as celebrations often take place, as Lord Neuberger pointed out in the context of the 800th anniversary of the Magna Carta, in a “mutually self-congratulatory bubble”.¹ The 2015 events proceeded on the basis of Lord Denning’s oft-quoted claim that the Magna Carta is “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.² His sentiment was affirmed by Boris Johnson: “[t]he liberal spirit of Magna Carta is alive … in those magnificent Clauses 39 and 40 that have come to incarnate the freedoms of the individual that we uphold”.³ And who could object to a celebration on such terms? In this chapter I argue that the 2015 anniversary celebrations instrumentalised the Magna Carta for the Conservative-led government’s specific political ends. Events were closely managed by ministers to emphasise the Magna Carta’s place within the UK’s ancient constitution as a counterpoint to the incorporation of the European Convention of Human Rights (ECHR) into UK law.⁴ The celebrations therefore advanced the Conservative Party’s agenda that the Human Rights Act (HRA) needs to be replaced by a “British” Bill of Rights.⁵

Having examined the significance of the 2015 celebrations I evaluate three facets of the Conservatives’ efforts to employ Magna Carta as a weapon against the HRA. First, the Magna Carta’s indigenous character has been used as a rallying cry against the incorporation of the ECHR’s ‘foreign’ legal values through the HRA. Second, because the HRA has been characterised as alien to the UK’s constitutional landscape, the Magna Carta supports claim that the UK has a unique history of constitutional liberty. This lays the groundwork for a bill of rights which reduces substantive rights protections and sidelines the Strasbourg court. Third, the Conservatives’ claims that the UK’s constitutional history makes it a particularly trustworthy country when it comes to upholding human rights challenges the underlying ethos of international human rights protections. The ultimate aim of the Magna Carta rhetoric is to persuade the UK electorate that there is little role for international human rights within the UK’s governance order and, as a consequence, to ease the UK out of the ECHR.

(1) Creating the Magna Carta myth

Even if a direct line cannot be drawn between Magna Carta and the UK’s current human rights protections, lawyers have historically been at the forefront of advancing this national foundation myth. Whereas the ‘historian’s view’ of 1215 “has tended to emphasise the self-interested motives of the barons and has generally been sceptical about the charter’s constitutional significance”, according to Lord Sumption the ‘lawyer’s view’ treats the charter as “a major constitutional document, the foundation of the rule of law and the liberty of the subject in England”.⁶ The divergence between the popularised Magna Carta myth and the historical reality owes much to the efforts of lawyers, from Lord Coke in the seventeenth century onwards, to instrumentalise the charter in the service of contemporary political causes.⁷ The Magna Carta’s usefulness lies the generality of its supposed challenge to unaccountable authority, making the detail of its terms and context of its drafting irrelevant. The pope’s swift annulment, rendering the 1215 settlement ineffective, matters little to the celebrations of its significance for the rule of law. That the security clause, a mechanism for constraining absolute monarchical authority, was stricken from the subsequent 1216 version need not hamper claims that the Magna Carta founded the separation of powers.⁸ Trial by jury came to be read into the text retrospectively.⁹ In the 2015 celebrations Conservative ministers regurgitated this Whiggish narrative, casting the Magna Carta as the start of the “bending of the arc in favour of individual rights and freedoms” in the history of England and ultimately the UK.¹⁰

The Global Law Summit of 2015 was not intended to reflect on the Magna Carta’s place in history but to refresh its “iconic, even mythical value”.¹¹ Cass Sunstein has described this process as the creation of a “usable past” which underpins national political self-consciousness.¹² As the following extract from a Guardian editorial indicates, the resulting constitutional foundational myth has been generally accepted:

David Cameron has called it the ‘foundation of all our laws and liberties’. Historically speaking, this is bunk. But in so far as it supports the idea that individual freedom is precious and must be defended and passed on, it is genuinely ennobling. Myth it may be, but a virtuous national myth that speaks to the belief that the timeless and magisterial law stands above the flawed ruler, whether medieval or modern.¹³

Nevertheless, because the principles said to be at work in the Magna Carta are so underdeveloped they can easily be overlooked or even entirely hollowed out. In 1878, in opposition to the deployment of Indian troops in Malta, Gladstone directly invoked clause 51 of the original 1215 charter (calling for foreign knights and mercenaries to leave the kingdom), even though the provision had not been included in the later statutory versions of the charter. By grounding his opposition in the ‘ancient constitution’ Gladstone evidently “still thought of Magna Carta as something modern”.¹⁴ As little as 50 years later, however, such claims would have marked him out as a crank. As a sovereign Parliament overlaid the ancient constitution with modern statute, the legal force of the Magna Carta was lost. In Peter Linebaugh’s scathing assessment, “[the Magna Carta] ceased to be an active constitutional force and became a symbol characterized by ambiguity, mystery, and nonsense … it became an idol of the ruling class”.¹⁵ Today the charter has become more useful as a means to legitimatise UK human-rights exceptionalism than as a rallying cry for individual liberties.¹⁶

(2) Human rights as an invasive species

The supposedly exceptional nature of the UK’s constitutional order was, in the decades before the HRA’s eventual enactment, employed by the opponents of the ECHR to limit its role within the UK’s constitutional order.¹⁷ Although he was a leading human rights advocate Lord Scarman had to acknowledge that “the legislative sovereignty of Parliament … makes it difficult for the legal system to accommodate the concept of fundamental and inviolable human rights”.¹⁸ In drafting the HRA the New Labour government focused on overcoming the narrative that domestic human rights legislation could not be compatible with the notion of parliamentary sovereignty as the keystone principle of the UK’s constitution.¹⁹ For Jack Straw, this difficulty in mapping the HRA to the requirements of parliamentary sovereignty was, above all others, the “elephant in the room” during the drafting process.²⁰ The drafters tackled this conundrum by favouring a reinterpretation clause and declarations of incompatibility over any judicial strike-down power.²¹ As a result, most constitutional commentators have joined Lord Steyn in accepting that “[i]t is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereignty”.²² The HRA’s requirement that domestic courts “take into account” Strasbourg jurisprudence was also intended to walk a fine line.²³ On one hand, it restricted the UK courts from developing novel and activist approaches to human rights and, on the other, it did not impose an obligation upon domestic judges to slavishly adhere to Strasbourg’s position.²⁴

That the HRA simply incorporated some of the UK’s commitments under the ECHR into domestic law was not a mainstay of the Conservative Party’s criticism at the time of the HRA’s enactment. Their 1997 manifesto described the introduction of any enumerated list of human rights in domestic law as a “radical” change which “could unravel what generations of our predecessors have created”.²⁵ The legacy of successive high-profile defeats for the UK before Strasbourg’s institutions, however, blunted claims that fundamental rights were already adequately protected in UK law.²⁶ The incorporation approach was, nonetheless, a visible effort by Tony Blair’s government to emphasise the limited ambitions of this legislation in an effort to smooth its integration into the UK’s Constitution. Some human rights advocates, such as Sydney Kentridge, QC, complained that the HRA was too timid and that “a new, home...