Straight to the point

Amid the tension surrounding the Government’s Rwanda policy, one striking cause has been largely ignored. Read through yesterday’s coverage and you could almost miss it — the recognition, in a joint resignation letter fired off by former Conservative Deputy Chairmen Lee Anderson and Brendan Clarke-Smith, that our “Blair-era legal framework” is unfit for purpose.

New Labour has long been a convenient scapegoat for Conservatives of a particular persuasion. But this time, the accusations may have merit. The backlash that followed last year’s Supreme Court ruling — which found the Rwanda policy to be unlawful — is a direct product of New Labour and Lord Derry Irvine’s rights-based judicial reforms. Those reforms, firstly, ensured all policy and legislation-making centred around a culture of rights-compatibility. This was to be given priority over debates regarding the merits and necessity of an elected government’s policy preferences and assessment of the public interest. Secondly, it encouraged the perception of the judiciary as being unchallengeable and hierarchically superior to other branches of the state. The result, as we’re now seeing, is the constraint of an elected government that commands a majority in Parliament.

For New Labour, the aim was to ensure that domestic policy and legislation was subject to, and heavily shaped by, the European Convention (ECHR) rights found in the Human Rights Act 1998 (HRA), regardless of whether the domestic public interest or common good, according to a democratically elected majority government, required otherwise. As such, governments of all stripes would be forced into designing and arguing for policy that sits within the HRA’s framework and adhered to decisions made by the European Court of Human Rights (ECtHR). Other pertinent questions about the need, validity, strengths, weaknesses and democratic support for these proposed measures would become secondary.

Lord Irvine was clear-eyed about the types of rights-based reforms he wanted to introduce. He unequivocally claimed that New Labour’s HRA sought to mould not only the content of law in a range of areas, but also the law-making process. As such, it was New Labour’s specific intention to ensure government policy and legislation was framed around individual rights. To this end, the requirement for ministers to make statements of compatibility when introducing a Bill into Parliament was vital; the “responsible minister” would have to justify their decision in the “full glare of parliamentary and public opinion”. Strikingly, “Sovereignty”, Lord Irvine wrote, “will in future have to be exercised within an environment highly sensitive to fundamental rights”.

Moreover, because the HRA ensures executive and public bodies carry out their work under the umbrella of rights compatibility, Lord Irvine claimed such bodies would be subject to “considerably more rigorous scrutiny” than before — and he conceded the “special arena of human rights” would entail high degrees of judicial intervention.

While Lord Irvine, and New Labour, maintained that parliamentary sovereignty would be preserved, and Parliament could continue to legislate as it wished, the intention was to reposition the terrain for legislating towards matters of compatibility and away from concerns about public interest. If Parliament sought to legislate against the HRA grain, the question would not be of sovereignty or public interest but of rights-compatibility. Further, the duty on domestic courts to read legislation in a HRA-compatible way has led to a wide range of British government policies being reduced to such debates. The results, as we have seen, include well-documented cases of IRA members claiming to suffer a breach of the right to life, and the blocked deportation of suspected terrorists. Even government policies concerning public ownership and late-night flights from London Heathrow airport have been subject to questions of compatibility.

Of course, while these types of cases can and often have been decided in favour of the Government, the reduction of substantive policy proposals to discussions of ECHR-compatibility, and the resulting delays to their implementation, are debilitating for domestic legislative or public interest programmes. Adhering to basic minimums of rights is important. But to confine the legislative and policy-making process so that it only or disproportionately considers HRA compatibility distorts and significantly harms domestic deliberations about proposed measures. Such a bias also reduces the role of the unique customs and traditions of the country in informing policy programmes, and relegates the view of legitimate domestic actors, such as trade unions, who may have a role in influencing policy or legislation. Designing and implementing domestic measures requires some degree of political and legislative freedom, relatively free from compatibility measures that are premised on decisions made by the supranational voices of the ECtHR.

To make matters even more tiresome for any current or future government, New Labour’s HRA created the perception that the judiciary, and their judgments, were hierarchically superior to the elected majority government in Parliament. In other words, a false impression was created that framed Parliament, and the majority government within, as being unable to question or legislate against judicial decisions. Historically, the British constitution is no stranger to judicial checks on potential overreaches of power. But it is not through enforced judgments that Parliament complies with judicial decisions. Instead, it has always been through sovereign self-regulation, conventions of restraint and respect, and, where this fails, through parliamentary scrutiny and, ultimately, electoral assessment. Despite this, New Labour encouraged an Americanised feeling of judicial supremacy by, first, reframing the role of judges and, secondly, allowing them to enter more substantive discussions about the merits of any given policy or legislative measure.

Lord Irvine confidently asserted that the HRA’s reforms ushered in a new framework and prominence for judicial authority. He understood that the British system was not like that of the United States, with a written constitution, but he believed that the judiciary should be tasked with protecting both substantive rights and the content of those rights. Here, he argued that the success of the US constitution in achieving this was a result of the power given to the courts. Strikingly, in comments that would petrify Lord Chancellors of the Labour Party’s past, Lord Irvine also argued that characteristics of the US Supreme Court would underpin the new rights-protection model in the UK. By moving away from the Diceyean common law model, “the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way”. The HRA, he argued, gave the courts the “constitutional warrant” needed to uphold rights.

Then, after recasting the British judiciary in the same light as the US Supreme Court, Lord Irvine explained that the introduction of New Labour’s rights-based reforms would kickstart a new process of justice based on the promotion of positive rights. As such, he believed the mechanics of the HRA changed the constitution to one in which citizens asserted a positive entitlement that was expressed in clear and principled terms. This meant that British judges, for the first time, were able to make their own distinctive contribution to the protection of rights. The judiciary would now be armed with a “catalogue of new rights” and “new tools” to uphold freedom. Despite New Labour arguing these reforms maintained the position of Parliament as the ultimate arbiter, Lord Irvine specifically claimed there would be great pressure to concede ground to any decision that the court has made. This would especially be the case if a “section 4(2) declaration of incompatibility” — in which legislative provisions went against the grain and values of the HRA — was made. For those unsure what this might entail, he explained:

“The issue of a declaration of incompatibility is very likely to prompt the amendment of defective legislation. Consequently, while British courts will not possess the power to strike down legislation which is incompatible with human rights, their power to issue a declaration of incompatibility is substantial, given that, in pragmatic terms, it very probably will lead to the amendment of defective legislation. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review.”

Commentators broadly agree on the potency of such a declaration, despite Parliament, in a technical sense, having the ability to ignore it. Indeed, the political pressure created by a “Supreme” Court ruling against a government tends to be so enormous that, in practical terms, the court, not Parliament or the government within, is viewed as supreme. In effect, such a measure is tantamount to ordering the Government and Parliament itself to halt or change direction — something which, prior to 1998, was constitutionally improper.

Moreover, when ensuring the legislation or policy in question was compatible with the HRA, Lord Irvine claimed judges would also be able to conduct a more substantive review of human rights and policy. He argued that the domestic courts would be able to examine whether it was necessary to limit a right, and whether a proposed limitation was appropriate. Therefore a moral approach to judicial decision-making was created. The courts would now have to be satisfied that any interference with a protected right was justified in the public interest of a free democratic society. The result, Lord Irvine explained, would be judicial decisions based on the morality of government policy and legislation — not simply its compliance with the bare letter of the law.

Finally, although seemingly cosmetic, New Labour’s decision to disband the Appellate Committee of the House of Lords and create a new, relocated Supreme Court — via the Constitutional Reform Act 2005 — lent further weight to its aim of fostering feelings of judicial supremacy. Instead of adhering to the unique commixture of powers in the British constitution, the Department of Constitutional Affairs explained the intention was to redraw the relationship between the judiciary and other branches of the state — in addition to enhancing judicial independence. Overall, then, an image starts to emerge of New Labour and Lord Irvine’s responsibility for those in Britain who have spent the past two decades appealing to the paramountcy of the HRA and finality of judicial decisions. This can be clearly seen in the responses to the Rwanda policy from civil society, commentators in the media, and politicians.

Following the Supreme Court judgment, for example, third-sector organisations unequivocally called for the Government to abandon and draw a line under the measure. Others have also criticised the Government’s response  for “disapplying” aspects of the HRA and “disabling the courts”, while reporters have framed the Government’s response as one which “brushes the historic role of our country’s courts aside”. Similarly, among politicians, legislating against the Supreme Court has been described as “an affront to democracy”, with MPs expressing concern about “the possibility that, by effectively reversing through statute a Supreme Court judgment on the facts, the Bill could undermine the constitutional role of the judiciary”.

Of course, these responses do not form a complete picture — but they do provide a snapshot of the enthusiasm for judicial supremacy fostered by New Labour. The result, as the Rwanda policy has demonstrated, is a rights-based framework that can significantly obstruct an elected government’s policy or legislative agenda. While New Labour and Lord Irvine may feel like history, we are still stuck in the stranglehold of their reforms.

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A version of this article was published on the UK Constitution Law Association website.

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