Human Rights Act 1998 (HRA 1998) has numerous enemies. Some of them have formed a government which controls (or at least directs) a majority in the Commons. Though the government which enacted it did not intend the Act to be an innovation in constitutional law (Loveland 2018 521), the highest courts quickly recognised its constitutional importance.  Indeed, a recognition of its (present) integral status is implied by the government’s promise to establish a ‘Constitution, Democracy and Rights Commission’ (Law Society 2019). While there is no denying the impact of the Act especially on the rights of individuals, its precarity  suggests describing it as constitutional would be premature and even wistful.

In a discussion of Quila  ([2011] UKSC 45) and proportionality as a ground for review, Loveland suggested that HRA 1998 ‘altered the balance of power between the different branches of the government’ (579). Restated, HRA 1998 altered the balance of power between the judiciary and the executive. This obviously impacted the constitution. With Wilson LJ’s ‘ten question’ methodology, the Court was in effect instructing the government on how to draft policy . However, it soon backed away from such overt ‘activism’.

In Rajavi ([2014] UKSC 60 para 29), Sumption LJ  remarked that

traditional notions of the constitutional distribution of powers have unquestionably been modified by the Human Rights Act 1998. In the first place, any arguable allegation that a person’s Convention rights have been infringed is necessarily justiciable. Section 6 of the Act requires public authorities, including the courts, to give effect to those rights.

This requirement arguably prompted the emergence or, as Loveland put it, the (re‑)emergence of the principle that certain rights are ‘fundamental’ and, presumably, constitutional. In the same judgment, Neuberger LJ opined that the ‘Act for the first time formally introduced fundamental rights into the domestic law of the United Kingdom’ (56). Domestic law is common law. 

In Pham ([2015] UKSC 19), Sumption resisted identifying particular rights as fundamental and elaborated on the standard of review appropriate for a rights-related matter. He emphasised (para 107) the ‘significance’ of the right interfered with and that the court must be ‘competent’ to assess the balance the decision-maker made. His opinion, described by Loveland as providing a ‘sliding scale’ approach, added some legal certainty to substantive review and incorporated elements of proportionality into the common law.  

In Rajavi, Sumption (para 29) continued:

… the jurisprudence of the European Court of Human Rights calls for a standard of review of the proportionality of the decisions of public authorities which is not only formal and procedural but to some extent substantive. 

‘To some extent’: this is a telling modifier. Proportionality was repeatedly considered by the highest courts – but, as Loveland (581) observed, it was not adopted as a ground outside of statutory (ie HRA 1998 and ECHR) review.

Proportionality has its critics (eg Tsakyrakis 2009), but it has much to recommend it. It has been thoroughly developed in European jurisprudence. Perhaps unfortunately, outside statutory review it has not replaced irrationality. The current government apparently intends to replace HRA 1998 and to take the United Kingdom out of the Convention. Deference to the common law – and to the doctrine of deference itself – will likely result in the loss of the principle of proportionality from judicial review.  

Sumption in Rajavi (para 31) argued that

the obligation of the courts to adjudicate on alleged infringements of Convention rights does mean that the traditional reticence of the courts about examining the basis for executive decisions in certain areas of policy can no longer be justified on constitutional grounds.

Will this reticence return? Allan (2006 671–672) observed that ‘When individual rights have required protection, neither the formal source of the power in question nor its intrinsically discretionary character have proved impenetrable barriers to judicial scrutiny’. HRA 1998 facilitates this scrutiny in important ways. Following Quila, however, the Court arguably returned to deference.

The doctrine of deference makes the barriers identified by Allan more formidable than they need be. Allan (679–680) attacked it thus:

Even when a more ‘‘intensive’’ form of appraisal is permitted, as when the curtailment of rights is subjected to review for proportionality, the roles of court and public authority remain distinct as long as the latter retains an element of discretion in its pursuit of the public interest. It follows that there is no role for any distinct doctrine of deference to fulfil: its invocation above and beyond the ordinary constraints inherent in judicial review amounts to an abdication of the judicial role and a failure to protect legal rights. Either such a doctrine restates what is already implicit in the ordinary mechanisms of judicial review, or it dictates judicial abstinence from the functions reposed in the courts by the rule of law.

Loveland agreed. Elaborating on Allan’s argument, Loveland posited that the courts have used the notion of deference to ‘relinquish their traditional constitutional responsibilities’ (554–555). The courts blurred the distinction between hierarchy and function. The legal meaning of a legislative measure should be determined by the courts and not the executive body which published it. The courts have been provided ample opportunity to broaden proportionality (simply, that any infringement be ‘necessary in a democratic society’) as a ground of review.

Bringing rights 'home’  afforded the courts the opportunity fully to incorporate proportionality into the common law. Their doing so should have surprised no one – after all, the United Kingdom helped draft the Convention. The highest court chose not to do so.  If the highest courts will not innovate, lower courts, try as they might, cannot.

The constitution does not offer a means to legally entrench human rights, however ‘fundamental’ these may be. Fortunately, HRA 1998 has contributed to the common law. Courts were perhaps aware that the Act was unlikely to survive and tentatively incorporated features of proportionality. Their understanding of deference – to both Parliament and the common law – allowed them to do no more. Battles will continue on the traditional grounds for the foreseeable future.

References

Book

Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights, 8th ed, Oxford U P.

Articles

Allan, T.R.S. (2006) ‘Human rights and judicial review: a critique of “due deference”’, Cambridge Law Journal, vol 65(3) pp 671–695.

The Law Society (28 November 2019) ‘General election 2019: summary of party manifestos’ [Online]. Available at www.lawsociety.org.uk/policy-campaigns/articles/general-election-2019-party-manifesto-summaries (Accessed 4 March 2020).

Tsakyrakis, S. ‘Proportionality: an assault on human rights?’ (2009) International Journal of Constitutional Law, vol 7(3), pp 468 – 493.

Cases

Pham (Appellant) v Secretary of State for the Home Department (Respondent) [2015] UKSC 19, [2015] 1 WLR 1591

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45, [2012] AC 621

Lord Carlile of Berriew QC, & Ors, R (on the application of) v Secretary of State for the Home Department [2014] UKSC 60, [2014] WLR(D) 479 (Rajavi)

Legislation

Human Rights Act 1998 c 42

International instruments

European Convention on Human Rights (‘Convention’, ECHR)