The Government’s Policies on the Human Rights Act and the EU are an incoherent muddle

The vast majority of Conservative MPs are united in the belief that Parliament should be sovereign and the British Supreme Court should be supreme. Yet the Government has embarked on a plan which (if it succeeds) will effectively entrench the precise opposite of what its MPs actually want.

The problem arises from a misunderstanding of the Human Rights Act and a failure to address the constitutional realities of EU law.

On the Human Rights Act, the Prime Minister has instructed Michael Gove to press ahead with preparations for its repeal and replacement by a British Bill of Rights.

Any sensible Conservative ought to realise that the repeal of the Human Rights Act is not just unwise but, if you are worried about Parliamentary sovereignty and the supremacy of our courts, entirely beside the point. The Act requires the Supreme Court only to “take account” of Strasbourg decisions, not to follow them; and it gives courts, whether British or European, no power to strike down Acts of Parliament. Under the Human Rights Act the Supreme Court is supreme and Parliament is sovereign.

Meanwhile, Mr Cameron is continuing with his EU negotiations which will lead to the “In/Out” referendum in 2017. Constitutional issues do not feature at all.

The Conservative manifesto promised:

• commit to keeping the pound and staying out of the Eurozone

• reform the workings of the EU, which is too big, too bossy and too bureaucratic

• reclaim power from Brussels on your behalf and safeguard British interests in the Single Market

• back businesses to create jobs in Britain by completing ambitious trade deals and reducing red tape.

Apart from the commitment not to join the Eurozone – hardly a controversial policy these days – this is rather short on concrete proposals.

Digging a little deeper into the manifesto we find this:

We are clear about what we want from Europe. We say: yes to the Single Market. Yes to turbo-charging free trade. Yes to working together where we are stronger together than alone. Yes to a family of nation states, all part of a European Union – but whose interests, crucially, are guaranteed whether inside the Euro or out. No to ‘ever closer union.’ No to a constant flow of power to Brussels. No to unnecessary interference. And no, of course, to the Euro, to participation in Eurozone bail-outs or notions like a European Army.

It isn’t actually clear at all. Do you have any idea what “turbo-charging free-trade” means? Nor me. And whilst saying “no to a constant flow of power to Brussels” sounds tough, it is also largely meaningless: the Government could say “Yes” to an intermittent flow of power to Brussels while keeping that particular promise.

But while the subject of the negotiations may be murky, what they are not about could not be clearer: the Government does not intend to address the principle that gives EU law supremacy over both our Supreme Court and our Parliament.

Section 2 of the European Communities Act 1972 gave direct effect to all European Community (and subsequently “Union”) treaties; and the landmark Factortame case in 1990 demonstrated in practice that an Act of Parliament could be over-ruled if it breached European law.

While it concerned itself largely with cases about competition, questions of sovereignty seemed mostly theoretical. UKIP, a few “loony left” Labour MPs and “Euro-obsessed fanatic” Conservatives may have talked about it, but for the most part it has been considered impolite to discuss the constitutional ramifications of EU membership.

Most lawyers are even less interested than politicians. EU law often seems to consist of an interminable series of numbered directives and impeccably dull case-law about German Geschellschafter.

But like many dull things, it turns out that it is in fact extraordinarily important, and it is now becoming much more so thanks to the adoption in Lisbon of the EU’s Charter of Fundamental Rights.

The Charter is an astonishingly wide ranging document, creating rights which are in principle directly enforceable under UK law. Many of the rights explicitly follow those in the ECHR – for example the right to a private and family life, and the right not to be subjected to torture – but the Charter goes much further than the Convention.

Did you know, for example, that it contains a right to education, a right to academic freedom, and a right to the protection of personal data? It bans eugenics, and insists (under Article 1) that human “dignity … be respected and protected,” whatever that may mean.

A dramatic, and surprisingly little publicised, example of how British judges are prepared to use their powers under the Charter came earlier this month when the Administrative Court ruled (in a case brought by MPs David Davis and Tom Watson) that Section 1 of the Data Retention and Investigatory Powers Act 2014, a hastily cobbled together Act with the appropriately unlovely acronym “DRIPA”, was unlawful under European law. The importance of the case is that it involved a British court using the Charter to invalidate an Act of Parliament (although it suspended that invalidation until March 2016). Ironically, in argument counsel for the Home Secretary (who wished to uphold the validity of DRIPA) had tried to limit the effect of the Charter by arguing that the Court should follow the less stringent European Convention case law. That did not work because, as the judges held: “Article 8 [of the Charter] goes further … and has no counterpart in the ECHR.”

The potential implications of the case are very significant. If judges get a taste for striking down Acts of Parliament for lack of compliance with the Charter, they are doing something that goes way beyond anything allowed by the Human Rights Act and it is impossible to know where they will stop.

On the face of things Article 51 of the Charter appears to limit its effect considerably:

“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union … and to the Member States only when they are implementing Union law.” (Emphasis added)

So does this mean that we are back to EU law quietly regulating disputes about obscure Geschellschafter?

No it doesn’t.

Our own Supreme Court has held that “the rubric ‘implementing EU law’ is to be interpreted broadly and, in effect, means whenever a member state is acting “within the material scope of EU law.” What the precise limits of this “broad interpretation” might be remains to be seen, but generally speaking if judges are given “broad” powers they can be expected to use them broadly.

A second possible limitation comes from one of the so-called “opt-outs” obtained by Britain and Poland during the Lisbon negotiations – “Protocol 30” – according to which:

“The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

The judges in David Davis’s case had little difficulty sidestepping that:

“The precise scope of Protocol 30 is far from clear, since it only precludes the extension by the CJEU or domestic courts of their existing powers to find that UK laws are not in accordance with the Charter. It cannot be used to prevent the court from defining the extent of rights contained in the Charter which set out provisions within the material scope of EU law.”

In other words, the opt-out is meaningless because the courts can say: “we are not ‘extending’ our powers, we are merely ‘defining’ the ambit of powers we already had, even though you didn’t realise it.”

There are certainly some areas where EU law has yet to make much headway, but as the Supreme Court Judge Lord Mance put it in a recent speech, there are “few limits to the dominance of EU law … and so far as these limitations exist, they are self-evidently less effective deterrents to European pro-activity than those which a country with a written constitution possesses.”

It may be that there is much to be said for EU law in general and for the Charter in particular. But given their potentially huge importance we should at least be as honest and clear as possible about their legal effects.

At present that clarity, and possibly that honesty, is lacking. In the name of asserting Parliamentary sovereignty and the supremacy of the Supreme Court the Lord Chancellor is preparing to repeal the Human Rights Act, under which Parliament is already sovereign and the Supreme Court is already supreme. Simultaneously the Prime Minister is preparing to remain in a European Union in which Parliament is not sovereign and the Supreme Court is not supreme. It is not a coherent policy. It looks likely to bring about a settlement that solidifies those very features of the constitution that the Conservative Party most viscerally dislikes.

Notes:

1. This article first appeared in a slightly different form in the Daily Telegraph on 28 July 2015.

2. I can only apologise for the formatting of the last two paragraphs. There is no reason for them to be in italics, or for the final paragraph to be inset so deeply. Unfortunately I can’t change it.