If the Human Rights Act were repealed, could the common law fill the void?

Professor Brice Dickson, Queen’s University, Belfast.  This post draws from a presentation given to the Oxford Public Law Discussion Group on 25 November 2013 and was originally posted on the Oxford Human Rights Hub at http://ohrh.law.ox.ac.uk/?p=3400 

It now looks pretty certain that, if Justice Secretary Chris Grayling has his way, the Conservative Party manifesto for the election in 2015 will promise to repeal the Human Rights Act 1998 and to enact some alternative legislation. Earlier this year a retired judge of the High Court of Australia, Dyson Heydon, also suggested that the UK would be better off without a statutory Bill of Rights. Such a position begs the question whether, in the absence of the 1998 Act, UK courts could instead rely upon the common law to protect human rights to the same standard as under the Act.

The repeal of the HRA may have implications for the human rights protection of British soldiers serving abroad

Out would go the judicial duty under section 2 of the Act to ‘take account’ of Strasbourg jurisprudence, but the right of lawyers to make reference to that case law in their arguments and of judges to refer to it in their reasoning would continue. The absence of section 2 would make a difference only if it were replaced by a statutory duty to give priority to domestic law over Strasbourg jurisprudence in specified situations.

The loss of section 3 – the duty to interpret legislation as compatible with Convention rights ‘so far as it is possible to do so’ – would also make little difference unless, under some new Act, judges were told to engage in such interpretation only when legislation is ambiguous. A lack of ambiguity, however, is a rare commodity, especially in cases in the appeal courts.

Nor would the inability to make formal declarations of incompatibility under section 4 of the Act matter very much. Such declarations are already neutered by section 4(6), their only purpose being to alert government to the possibility of fast-track reform under section 10. Get rid of the Act and judges could still express a clear view that domestic legislation is inconsistent with what is required by Strasbourg.

But the repeal of section 7, which allows civil suits to be brought against public authorities for violating Convention rights, would be a more serious matter. There is nothing in the domestic courts’ jurisprudence to suggest that in parallel with the statutory cause of action they have developed common law claims for breaches of human rights. Indeed in the contexts of the right to life and the right to privacy they have specifically refused to do so (Smith v Chief Constable of Sussex Police [2008] UKHL 50 and Campbell v MGN Ltd [2004] UKHL 22).

The repeal of the Act would also cast doubt on existing UK law relating to the extra-territorial scope of the Convention: the decision that British soldiers serving abroad can claim Convention rights (Smith v Ministry of Defence [2013] UKSC 41) would have a very weak legal basis without the Act.

More worryingly, the common law looks ill-equipped to run with the human rights baton. Its attempts to do so prior to the 1998 Act were quashed by the House of Lords in Watkins v Home Secretary [2006] UKHL 17, where the concept of constitutional rights was firmly extinguished. Judges’ adherence to ‘the mirror principle’ (doing ‘no more and no less’ than the European Court when protecting Convention rights), their refusal to apply the 1998 Act horizontally, and their affirmation that public authorities can ignore human rights when making decisions so long as what they ultimately decide does not in fact violate a right, all suggest a certain complacency in the common law sphere.

The recent decision of the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61 may however be a turning-point. With the consent of his four colleagues, Lord Reed repeatedly stressed that UK domestic law can protect rights other than through the Human Rights Act. Examples of its doing so, however, are few and far between, and there is not yet any clear common law principle that public authorities cannot do things which violate the ECHR, notwithstanding the new focus on proportionality. I know that judges can rise to the challenge, perhaps by citing Blackstone and ‘the principle of legality’, but they need to do so quickly, before the Human Rights Act disappears.