The Human Rights Act: Ambiguity about Parliamentary Sovereignty

Abstract

The United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with a core constitutional principle of parliamentary sovereignty. When adopting the Human Rights Act (HRA), the political framers insisted on preserving Parliament's final say on the legality of legislation.

The decision to authorize judicial review, while also constraining the scope of judicial remedies by withholding a power to invalidate inconsistent legislation, has introduced serious ambiguity about the function of the HRA and also about where political legitimacy resides for resolving institutional disagreements about how rights appropriately guide or constrain legislation. The first example of ambiguity is with respect to how institutional actors understand the principal function of the HRA. For example, does rights protection occur primarily through judicial review, either by authorizing the judiciary to engage in interpretive techniques that force legislative compliance, or by identifying rights constraints that parliament is expected to address by enacting remedial measures? Or instead does rights protection occur via altered political practices: by engaging bureaucrats, the executive, and Parliament in a more conscious role of identifying how rights are implicated in proposed legislation, increasing intra-institutional deliberation about justification, and facilitating pressure to implement rights-inspired amendments? The second example of ambiguity occurs with respect to political actors' responsibilities in circumstances where courts disagree that legislation complies with protected rights, as judicially interpreted. Specifically, how does the principle of parliamentary sovereignty relate to the mission of a recently adopted bill of rights? Notwithstanding formal constraints on judicial power, can Parliament's contrary judgment be considered a compelling interpretation of rights and, if so, under what circumstances and according to what criteria?

This paper explores this ambiguity in the context of debate about disenfranchising prisoners.

The United Kingdom has long considered a bill of rights as both unnecessary and inconsistent with the constitutional principle of parliamentary sovereignty. This view of inconsistency arose from the assumption that an effective bill of rights requires a judicial remedial capacity to set aside inconsistent legislation, and thus this judicial power contradicts the idea that parliament has the final say on the legality of duly enacted legislation. Yet a political willingness to experiment with where responsibility resides for remedial action helped overcome reticence to adopt a bill of rights. The HRA came into effect in 2000 and incorporates the European Convention of Human Rights into domestic law. Yet the HRA differs significantly from conventional assumptions about how a bill of rights functions. Instead of conceiving of rights protection in a court-centric manner, as occurring through binding judicial remedies to redress rights infringements that have already occurred, the HRA instead represents a more politically-oriented bill of rights. Such a politically-oriented bill of rights embodies the optimistic ideals of facilitating proactive rights protection through more rights-oriented legislative processes and relying on political willingness to enact remedies if the judiciary subsequently disagrees that legislation is consistent with Convention rights.

The HRA represents an ambitious model for rights protection that envisages rights-based scrutiny occurring at four institutional stages, three of which are oriented around the legislative process. The first of these four stages, pre-legislative review, arises from a new ministerial reporting requirement in section 19 to alert Parliament that a legislative bill is either compatible with Convention rights or that the minister is unable to claim compatibility. This reporting obligation has precipitated regular assessments by government lawyers and relevant policy officials of whether legislative initiatives are consistent with Convention rights before these become legislative bills. The second stage, parliamentary rights review, is facilitated by the creation of a specialized parliamentary rights committee—the Joint Committee on Human Rights—to review legislation from a rights perspective, which provides Parliament regular and often critical reports on the persuasiveness of the minister's earlier claim that a bill is consistent with the Convention rights. Judicial review, the third stage, occurs as a result of a new authority for judges to consider whether legislation is consistent with Convention rights. If judges determine that legislation is inconsistent with Convention rights, judicial censure can take an interpretive form under section 3 of the HRA, by altering the scope or effects of legislation through a judicial interpretation that strives to render legislation compatible with Convention rights, or it can take a more explicit form by declaring that the legislation is not compatible with Convention rights under section 4 of the HRA. The fourth stage arises from a legislative process for implementing remedial legislation in section 10 and reflects the political framers' expectations that Parliament will regularly comply with domestic and European Court of Human Rights (ECtHR) rulings of incompatibility.

Yet this highly idealized model of rights protection reflects deep and unresolved ambiguity about the nature of parliament's responsibility to pass remedial measures. This ambiguity is a direct consequence of a political attempt to construct a rights project that emphasizes a juridical approach for interpreting liberal constitutional values and yet also relies on political willingness to enact remedies. The significance of this ambiguity is intensified by the rhetorical dissonance between the claim that a strong expectation of compliance with British and ECtHR rulings exists and the very different claim that parliamentary sovereignty protects parliament's capacity to have the final say on all judgments including those involving rights.

The seriousness of this ambiguity is particularly clear in political responses to judicial rulings that the UK's comprehensive ban on prisoners' voting is inconsistent with ECtHR rulings. The paper examines political reactions to ECtHR rulings on prisoner voting in Part One. Part Two draws on the work of Jeremy Waldron to suggest the benefit of Parliament developing processes or criteria to revisit judicially-impugned legislation in order to reassess the merits of its earlier judgment and/or the justification of political reticence to implement remedial measures. Although some might interpret this argument that Parliament should reassess the justification of legislation from a rights perspective as being in serious tension with ideas associated with political constitutionalism, the author rejects this interpretation. This perception is only valid if the argument for re-evaluation is predicated on the idea that courts alone are capable of, or have legitimacy for, judgments about rights. If one rejects a court-centric position on this issue, as does the author, and yet also takes seriously the idea that a polity's fundamental rights should be respected, it is incumbent upon Parliament to find a way to critically assess and distinguish when its dissenting judgment is justified as a reasonable response to legitimate rights-based concerns, from when Parliament's dissenting opinion can only be explained as an assertion of political and constitutional power.