Don’t break laws to make laws
Why is a Tory government proposing to extend the scope of the Human Rights Act?
If the past few years have taught us anything, it is surely the danger that attends when governments play fast and loose with the constitution. The last parliament saw Theresa May’s ministry put on the rack in a manner which would have been impossible prior to the widely-condemned Fixed-term Parliaments Act (FtPA), enacted in a fit of doctrinaire tidy-mindedness in 2011 (or due to low, reckless, self-serving politics, according to taste). Equally, John Bercow wrought havoc on the hitherto-unquestioned impartiality of the office of Speaker by exploiting a loophole plausibly traceable to a throw-away decision by a previous Speaker in 1977.
Yet it is a lesson which politicians appear very slow to learn. So even as the Government prepares to undertake a serious constitutional review (about which I have written previously), with a view to pushing back against the several assaults on British constitutional norms mounted by Remainers in the last parliament, the Ministry of Justice is proposing a potentially radical and expansive reinterpretation of a key section of the Human Rights Act.
The thing about our uncodified, political constitution is that, as the legal scholar JAG Griffith put it in a seminal 1979 lecture, “the constitution is no more and no less than what happens”. Thus, those who would defend constitutional propriety must make a habit of it across the whole conduct of government, rather than something which can be tidily boxed up in a ‘review’.
Which brings us to the Ministry of Justice’s recent proposal to amend the Human Rights Act, which is the subject of a new paper by Richard Ekins of Policy Exchange’s Judicial Power Project.
When New Labour passed the Human Rights Act (henceforth ‘the HRA’) in 1998, they did so in order to give the courts the power to take into account most of the terms of the European Convention on Human Rights (ECHR) in domestic law. But crucially, it attempted to do this on British terms. Unlike the earlier European Communities Act 1972, through which all European law became domestic law automatically, the HRA leaves it up to Westminster to bring the law into line. The courts are mandated to stretch the interpretation of statutory provisions up to a point, but beyond that they can only rule that legislation is incompatible with the HRA. This has no legal force.
In the event that Parliament wishes to bring the law into line – and to date, alas, it has (pace prisoner votes) – the HRA provides two means of doing this. The primary method is the introduction of new legislation. But in some circumstances, the HRA permits the making of a Remedial Order under s. 10 of the HRA, which is a so-called ‘Henry VIII’ power by which the government can amend legislation itself.
This second method is the root of the current controversy.
A Remedial Order is a form of ‘Henry VIII clause’ – statutory instruments which can amend Acts of Parliament. Unlike primary legislation, a Remedial Order can’t be amended during its passage. MPs and peers can instead only accept or reject it. This hugely limits the scope for democratic scrutiny of something which actually provides the Executive with a potentially awesome power to amend primary legislation.
It is therefore established practice that such Henry VIII clauses are always interpreted as narrowly as possible by the courts, so as not to grant the Executive powers which Parliament, in passing the Act, did not intend it to have. In his judgment in McKiernon v Secretary of State for Social Security (1989), which has been approved repeatedly in the House of Lords, Lord Donaldson said that:
“The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.”
Despite this, the Ministry of Justice proposes to use a Remedial Order to amend not just any piece of primary legislation, but the actual Human Rights Act itself, and it is not at all clear that the legislation actually permits this.
Ekins argues that this is potentially ultra vires, or unlawful. Whilst s. 10 of the HRA refers simply to “legislation”, which could in theory include the legislation which contains it, it makes no express provision to this effect. Ekins also points out that there are several other instances where the HRA does expressly empower ministers to amend itself, making the silence in s. 10 on the point much more significant – and arguably fatal, if the principle of ‘restrictive’ interpretation of Henry VIII powers is applied.
The Ministry of Justice proposes to use a Remedial Order to amend not just any piece of primary legislation, but the actual Human Rights Act itself
On the Government’s reading, Ekins argues, “the entire scheme of the Act is liable to be undone”. Ministers would be empowered, in the event of a declaration of incompatibility, to dismantle by Remedial Order the very parts of the Act which ensure its integration of ECHR jurisprudence through the HRA is in line with British constitutional norms.
This is not the first instance when politicians looking for an easy fix have chipped away at the safeguards built into s. 10.
Remedial Orders were originally intended only for when the Government had “compelling reasons” for a full Bill being impractical. But they are increasingly being described as simply another ‘option’. A good example can be found in the Command Paper published by the Government in 2017 to justify a Remedial Order to amend the Human Fertilisation and Embryology Act 2008, which followed a declaration of incompatibility in the case of Re Z (A Child) (No. 2).
They are also being used to amend legislation passed subsequently to the HRA itself, which Robert Craig persuasively (if perhaps radically) argues cannot be justified by a strict interpretation of the Henry VIII power.
But even so, it is remarkable that a Conservative Government should be proposing to effectively bootstrap into existence a potentially dramatic expansion of the scope of the Human Rights Act, a piece of legislation the Government is theoretically committed to ‘updating’. This is surely not what the 2019 manifesto meant.
So why is the Government not bringing forward a short Bill? Is it simply a hangover from before the election, when the Government’s position in Parliament was precarious, the risks of legislation being hijacked were acute, and ministers were trying to conduct as much business through secondary legislation as possible?
Inertia has ever been one of the most powerful forces in politics. But on this Robert Buckland, the Lord Chancellor, should change course.
Not only does the Government now enjoy a comfortable majority, but as one of the Cabinet ministers charged with overseeing the Prime Minister’s constitutional review, he should be taking care to set an example when it comes to handling sensitive legislation with constitutional implications.
He might be tempted to think that this is only a small thing – a matter of practicality. But a corner cut today can sow the seeds for serious trouble tomorrow. That’s how precedents work. Ask Bercow.
Enjoying The Critic online? It's even better in print
Try five issues of Britain’s newest magazine for £10Subscribe