Many commentators portray the Human Rights Act (HRA) as marking the demise of Britain's “political constitution.” This article argues otherwise. The HRA need not be taken as handing over supremacy for rights adjudication from the legislature to the courts. First, the HRA brings “rights home,” strengthening, in certain respects, domestic rights instruments vis-à-vis the European Convention on Human Rights (ECHR). Second, sections 19 and 4 of the Act maintain and potentially enhance Parliament's scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review generally can be assimilated to a system of “weak” review whereby courts defer to the legislative “scope,” as determined by Parliament, and are restricted in their independent determinations to the judicial “sphere” of the fair conduct of the case at hand. Such weak review, so called, has always been necessary. However, the HRA potentially reinforces judicial deference by giving it a stronger statutory basis. That the HRA could strengthen rather than undermine political constitutionalism need not mean it does or will. However, the implication of this article is that it ought to be regarded as doing so, with the judiciary acting accordingly.
The U.K. has long presented scholars of constitutionalism with a puzzle.1 Despite never having had an entrenched written constitution, it can claim to be the inspirer and originator of two key elements of modern “legal constitutionalism”: the separation of powers and a bill of rights. Book 11, chapter 6, of Montesquieu's De l’Esprit des lois (1748), which drew on English sources and took the English constitution as its model, is commonly regarded as the urtext of the former, while the 1689 Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown offered the template for the latter. Yet, from more or less the same period, Parliamentary sovereignty emerged as the distinctive constitutional feature of the U.K.—a characteristic that commentators from the late eighteenth century onward have believed negated, or at least trumped, both of these attributes of a legal constitution. As Dicey, who became this doctrine's chief ideologist, famously and approvingly noted, there is “in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists.”2 With the highest Court part of the House of Lords and the lord chancellor a member of the executive, judicial separation was also partial. True, some commentators—notably Tom Paine—considered these British peculiarities meant, effectively, that the U.K. had no constitution at all.3 On this account, the paradigm of constitutionalism had passed from Britain to the United States. However, from Edmund Burke onward, a host of defenders of the Westminster system have regarded it as offering a distinct and superior model of political constitutionalism, which protects British liberties far more effectively than could the paper parchment of a “legal” constitution.
Has this all changed with the Human Rights Act (HRA) and the subsequent creation of a Supreme Court separate from Parliament and the government, which was to some degree prompted by the new Act? Passed in 1998, the HRA empowers courts to review legislation for compliance with the rights enshrined in the European Convention on Human Rights (ECHR)—albeit in what has been called a “weak” form that does not allow courts to disapply the law, though it does require them either to interpret legislation in compliant ways or declare it incompatible.4 Many scholars have regarded this development as the most significant of the various constitutional reforms carried out in the U.K. over the past decade.5 However, the precise nature of that significance remains a matter for dispute. Some have regarded it as “an unprecedented transfer of political power from the executive and legislature to the judiciary” that, for either good or ill, has undermined Parliamentary sovereignty, the capstone of the U.K.’s political constitution, and replaced it with a legal constitution.6 Others, though, have seen it as either compatible with—even an extension of—the U.K.’s political constitution7 or, at least, as a typical British compromise between political and legal constitutionalism.8 Meanwhile, a few—among them members of both these camps—have wondered, albeit for different reasons, whether any of it matters.9 A number even maintain that, despite appearances, legal constitutionalism always has played a crucial and, in many respects, uneliminable role within the British constitution. These developments simply formalize that fact. 10
In what follows, I shall attempt to assess these various points of view. The assessment is not so much descriptive as analytical and normative. My aim is less to assess if current judicial practice suggests the HRA is compatible with a distinctly political conception of the constitution and more to explore if it could be so. Such an exercise seems worthwhile for the following reason: if such an account could not be given, then the political constitution would be dead—if, indeed, it had ever been alive11—and could only be revived by repealing or considerably amending the HRA (something, as we shall see, that is dismissed as impossible by some, though advocated at the last election by the Conservative Party).12 Like other proponents of political constitutionalism, I would find such a conclusion disturbing given that our objections to legal constitutionalism arise not from opposition to human rights but because we regard political means as offering securer safeguards for them. Consequently, it ought to be possible to reconcile political constitutionalism with something like the HRA's attempt to enumerate them in an ordinary statute and offer qualified protection by the courts.
I should note that some have seen the HRA, as well as parallel developments in other commonwealth countries, as giving rise to a new model of constitutionalism that balances legal and political constitutionalism in a novel way while offering an alternative to both.13 By contrast, I believe it is more accurate to say that just as different forms of legal constitutionalism give greater or lesser weight to the legislature and popular sovereignty, in amending or deciding constitutional questions, so different forms of political constitutionalism have allowed greater or lesser degrees of judicial independence and discretion. Both kinds of constitutionalism allow for some balance, and there is nothing new in that.14 The crux is where supremacy lies—with the legislature, as political constitutionalists desire, or the judiciary, as legal constitutionalists wish, and how far judges make judicial deference to Parliament a central feature of their role. On this account, therefore, the crucial test with regard to the HRA, from a political constitutionalist perspective, is whether or not it renders legislative supremacy redundant.15 My central claim is that it need not do so.
I start with a brief outline of political constitutionalism. Subsequent sections then argue that the HRA need not, as a matter of either logical or practical necessity, replace it with legal constitutionalism—indeed, potentially it buttresses the role of Parliament. First, the HRA brings “rights home,” strengthening, in certain respects, domestic rights instruments vis-à-vis the ECHR. Second, sections 19 and 4 of the Act maintain and even enhance Parliament's scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review generally, can be assimilated to a system of weak review whereby courts defer to the legislative “scope” determined by Parliament and are restricted in their independent determinations to the judicial “sphere” of the fair conduct of the case at hand. Such weak review has always been necessary. However, the HRA arguably reinforces judicial deference by giving it a stronger statutory basis.
Within the British context, political constitutionalism has been associated hitherto with the seminal article of J. G. A. Griffith16 and seen mainly as a description of the U.K. political system.17 More recently, a number of scholars have sought to stress its normative aspects and deeper historical roots and to offer it as a generally applicable jurisprudential model rather than just a defense of the peculiarities of the British constitution.18 Although there are significant differences between these various accounts in terms both of focus and starting point, these divergences largely can be put to one side for the purposes of this article. My primary objective, here, is to consider the plausibility of political constitutionalism in practice and only secondarily to defend its normative attractions.19 To this end, I shall offer an ideal type of political constitutionalism, which draws together the convergent descriptive and normative elements of the various versions on offer, and briefly indicate how this model could be presented as offering a plausible view of the constitutional potential of the U.K. political system pre-HRA.
Five key and related features characterize this ideal type of political constitutionalism. First, political constitutionalists contend there are reasonable disagreements about constitutional essentials, including rights. Among other matters, we disagree about the sources of rights, that is, their philosophical foundations; the subjects of rights, or who possesses them, where and when; their status with regard to other values, such as utility; their scope, namely, how far given rights might extend and create obligations on others; the ways they might be best secured; how they might be set and balanced against each other; and so on.20
Second, as a result, political constitutionalists maintain there can be no higher, rights-based constitutional law that sits above or beyond politics. We necessarily frame and apply rights-based judgments within what Waldron has termed the “circumstances of politics” - that is, those circumstances where we may need a collective decision, but still disagree about its basis, content, scope and the best mechanisms and policies to realize it. We may need rights to coordinate our collective behavior and offer forms of protection to individuals and groups from the uncertainties and injustices that arise within social life, yet we differ considerably over what the most appropriate system of rights might be. Thus, any system of rights has to be politically negotiated and will be the product of the institutional arrangements that exist to arbitrate these debates.21
Third, and as a consequence of these first two points, political constitutionalists contend judicial review is politics by legal means. Within the U.K., a prime influence on the development of what might be called “strong” legal constitutionalism has been the work of Ronald Dworkin and his followers.22 Political constitutionalists have been particularly critical of the Dworkinian account of courts as a forum of principle, developing the critiques of those who have challenged the policy/principle distinction on which this thesis relies. They have also criticized Dworkin's claim that there is a purportedly right answer as a matter of law in “hard” cases and his apparent inability to distinguish invocations of morality that are supposed to be legally binding from those that are simply cases of judges exercising discretion.23
By contrast, political constitutionalists can be located, broadly, within the fold of legal positivism. Obviously, it is possible to be a legal positivist and still advocate a form of legal constitutionalism. However, political constitutionalists, as Jeremy Waldron has noted,24 give the legal positivist's focus on the institutional sources of law an important twist. For them, the democratic provenance of a law forms an essential feature of its political legitimacy. Unlike Hobbes, for whom the kind of authority he associated with sovereignty defines law regardless of who that sovereign might be, the political constitutionalist believes that lawmaking, sovereign power must reside in democratic institutions that embody a plausible conception of political equality. Moreover, as Waldron also notes,25 it is important for the political constitutionalist not just that the source of law be democratic but also that the business of recognizing laws by courts and lawyers be reasonably clear and open to lay people, not simply an arcane endeavor of the legal profession. For a democrat, the criteria of legal validity need to be understandable by the citizens whose property the law is. This concern applies, particularly, to the notion of judge-made law—and not simply because of potential mystifications that arise when the law seems to be a creature of judicial discretion and finds itself defined through judges exercising their private judgments about the merits of particular cases rather than by way of settled parliamentary processes.
Fourth, political constitutionalists regard courts as being both less legitimate and less effective mechanisms than legislatures within working democracies, such as the U.K., for reasoning about the most appropriate constitutional scheme of rights. They insist that it is important to ensure that the outcomes of any decisional procedure embody the equal concern and respect for all individuals, as autonomous agents, that motivate contemporary theories of rights. Such theorists insist, too, that the process whereby these decisions are made must exemplify this commitment to the equal status of citizens. Indeed, they are inclined to believe that only such an equality regarding process will secure appropriately equitable outcomes—or could legitimately resolve disagreements about what such an outcome or process could be. When it comes to both process and outcome, they claim democratic legislatures prove superior to courts. Two features figure with especial prominence in the comparisons political constitutionalists draw between them: the deliberative qualities of legislatures, as compared with courts, and the accountability of legislators to citizens. In both cases, political constitutionalists challenge the legal constitutionalist's claims that the legal context and independence of courts are advantages rather than disadvantages for the fair and impartial reasoning about rights. 26 On the one hand, they argue that the need for courts to accommodate both extant law and to consider only those parties with legal standing in a particular case tends to make them less apt than legislatures to take into consideration all the moral and practical considerations relevant for collective decisions. On the other hand, they see the electoral accountability of legislators as giving citizens political equality as autonomous reasoners and sources of information about rights, strengthening their sense of ownership of rights decisions and enabling them to ensure that the full range of concerns is taken into account and appropriately weighed. The electoral incentive of parties to build a coalition of voters capable of commanding a majority and either to criticize and offer an alternative to the incumbent parties or defend themselves against such criticisms means that a continuous balance of power exists between government and opposition. This balance serves to aid consideration of alternatives and curb abuses of power.
By contrast, compared to legislatures, courts fail to offer to all citizens as equal a chance for each and every one of their views and concerns about the collective provision and protection of rights to be counted, weighed, and challenged. Indeed, because the law is a more restricted forum than legislatures, with entrenched bills of rights favoring the status quo, strong constitutional review has a tendency to favor the privileged over the unprivileged. As the few large n studies that have been carried out in this area indicate, within established democracies rights-based judicial review by constitutional courts invariably has been a means for blocking rather than promoting progressive social reform. Hegemonic groups have argued successfully that such measures impose coercive restrictions on individual civil rights.27 Indeed, the record of such courts as defenders of civil rights has overall proved no better and, on occasion, far worse than legislatures for similar reasons—they allow powerful interests an unequal chance to trump collective decisions in the name of constitutional rights.28 However, as political constitutionalists note, if rights claims have already been played, as it were, in the legislative process, then such judicial trumping is an illegitimate form of double-counting. There are no trumps left to play if they have already been duly considered by the legislature.29
Fifth, as a result of all the above, political constitutionalists affirm that the rights determined by legislators within legislation should be superior to the decisions of courts. Judicial decisions should be guided by legislation and courts should not have the power to strike down legislation on substantive as opposed to procedural grounds. The Supreme Court on constitutional issues, including rights, should be Parliament.
Two important clarifications need to be entered and underlined, at this point. Both are crucial to the analysis of the sections that follow and the assessment of whether the HRA and political constitutionalism are compatible. First, as noted above, although political constitutionalists are sometimes dubbed “rights skeptics” none—so far as I am aware—deny that individuals possess rights (even if they offer different accounts of the moral and other sources of such rights).30 Rather, they are skeptical about rights-based constitutional review by courts. In fact, their position is grounded in at least one right—what Waldron calls “the right of rights”—that of participating as an equal claimer of rights in collective decision making.31 The argument is premised on the view that, among those who take rights and justice seriously, the very grounding theorists of a liberal or social democratic persuasion normally give for such rights—namely, that they support equal concern and respect for autonomous individuals—points toward prioritizing the right to participate as an equal in collective decision making about the shape of rights in their society.
Second, political constitutionalists do not deny that all legislation will be subject to an element of judicial review when applied by courts to particular cases. No law can be drawn up in such a detailed way that it anticipates all possible cases that might be decided with reference to it. Nor can judges avoid deploying what might be regarded as principles of natural justice in their interpretation of how the law applies. However, the decision as to whether legislation might be regarded per se as rights compliant and how such compliance might best be achieved, ought, on their view, ultimately to rest with the legislature.32
These five features of political constitutionalism all point toward something like the doctrine of Parliamentary sovereignty—the view, in Dicey's words, that Parliament possesses “the right to make or unmake any law whatever; and, further, that no person or body is recognised … as having a right to override or set aside the legislation of Parliament.”33 They need not go any further than that.34 For example, they do not entail popular sovereignty if that is taken to mean a radical form of democratic self-rule, such as direct democracy. Nor do they point to constitutional referenda or what might be called popular constitutionalism. Not only do these tend to be supermajoritarian, thereby favoring what may be an unjust status quo, they also fail to motivate citizens and legislators to look at rights in the round, to see the referendum's subject as part of a larger program of government that takes into account the full range of preferences on a given issue and the way it may relate to other important issues. That purpose is best achieved via a system of representative democracy, where all citizens can participate as equals in public processes that select and can hold accountable the prime power holders. As a result, the key decision makers have incentives to treat the views and concerns of those who elect them with equal concern and respect.
The claim of political constitutionalism is that parliamentary democracy possesses constitutional qualities that make the fear of a populist government, giving rise to a tyrannous majority, highly tendentious. The objection to judicial review is, at its heart, an objection to the lack of such constitutional qualities within legal constitutionalism. These are wanting because of the absence of accountability and responsiveness by the judiciary, combined with the narrowness and unrepresentative nature of the considerations it views as relevant. These may be good qualities in ensuring consistency in the application of the law; however, they are poor qualities for making laws. Much of the recent debate between political and legal constitutionalists turns on how realistic as well as legitimate it is to see the judiciary, ultimately, as the servant of Parliament—either ever, or post-HRA. It is to this issue that I now turn.
The HRA: From political to legal constitutionalism?
What might be termed the basic case for regarding the HRA as an extension of political constitutionalism is, in formal terms, relatively straightforward. Indeed, most commentators—including those who believe it de facto marks a shift toward legal constitutionalism—accept that the drafters of the HRA went to considerable lengths to render the judicial protection of Convention rights compatible with the Diceyan view of Parliamentary sovereignty, cited above,35 which we have seen forms the key aspect of Britain's political constitution.
The Diceyan doctrine is usually identified with two main features: first, that Parliament can legislate in any way or area it pleases, including if necessary amending and repealing any existing legislation, and, second, that no other institution may disapply parliamentary legislation. At the simplest level, the HRA appears to meet the first criterion in being an ordinary piece of parliamentary legislation—it has no special, entrenched status—and, as such, can be revised or withdrawn on the basis of a parliamentary majority. Meanwhile, as we shall see, section 4 of the Act, which allows the Court to issue a “declaration of incompatibility” with convention rights, has been drafted so as to maintain the second criterion. For such declarations do not in themselves disapply the offending legislation—only Parliament can do that. Needless to say, though, many commentators have found the basic position a little too simple and formal. I shall begin by looking at the relationship between the HRA and the ECHR and the European Court of Human Rights (ECtHR) to see if it offers a strengthening of domestic control over rights congenial to a political constitutionalist. I then turn to the other main provisions of the HRA and explore how far a weak form of judicial review, which preserves legislative supremacy on rights questions, is plausible.
Bringing rights home? The HRA and the ECHR
Some have objected that repeal of the HRA would be tantamount to withdrawal from the ECHR.36 However, although article 1 of the Convention requires contracting states to secure Convention rights within their jurisdictions, it does not specify how this might best be done . The primary domestic mechanism need not be judicial—and, indeed, was not in either the U.K. or several Nordic countries for over fifty years. Of course, it might be argued that the ECHR itself undermines the political constitutionalist position, with the HRA simply reinforcing that weakening. However, formally, the Convention is an international agreement between sovereign states from which they can withdraw or could potentially seek to renegotiate, as has periodically occurred when adding protocols or changing the composition and workings of the ECtHR. This status has also allowed the U.K. not to sign up to all the protocols to the Convention and to hold reservations with regard to particular articles. Few would deny that withdrawal from the ECHR would have such grave consequences as to be highly unlikely—adversely affecting the U.K.’s international standing and moral legitimacy and, arguably, involving departure from the EU as well, for which adherence to the ECHR is a requirement. However, although those advocating this position tend to be on the margins of British political life, the constraints on Parliamentary sovereignty are political not legal and leave the first criterion, identified above, intact.37
The second criterion might seem trickier, given that the ECtHR can pass judgment on parliamentary legislation or administrative acts. True, there is a certain intergovernmental logic in the membership and organization of the ECtHR. The Court's decisions also provide for a margin of appreciation in the interpretation of rights, thereby conceding that while national governments and legislatures must all value Convention rights, their valuations of them may diverge to reflect local circumstances and traditions. Indeed, many clauses of the Convention allow the protection of individual rights to be balanced against other collective concerns such as public order, health, and security. States may even temporarily derogate from certain provisions when these countervailing considerations are deemed to make it necessary to do so. Though the ECtHR can rule that laws or executive actions that have the sanction of Parliament may breach the ECHR—and British governments have invariably complied with such rulings—unlike EC law, the ECHR contains no principles of supremacy and direct effect and, unlike the European Court of Justice (ECJ), the ECtHR cannot instruct British courts to disapply rules of national law or interpret them in a particular way. The ECtHR can only award remedies against signatories as a matter of international, not domestic, law. It might be argued that, even pre-HRA, the courts had begun to cite the ECHR of their own accord and risk going beyond what was officially permitted.38 However, the courts still deferred to Parliament's explicit repudiations: for example, in the Joint Council for the Welfare of Immigrants case, where the Court of Appeal's judgment was overruled by primary legislation the following day.39 So the second criterion is also met.
Nevertheless, despite the compliance of the ECHR regime with Parliamentary sovereignty, there is no denying that the growing number of cases against the U.K. brought before the ECtHR was felt to be an embarrassment that the HRA was designed, in part, to rectify. In this regard, many viewed the HRA as reinforcing political constitutionalism. The HRA would “bring rights home” by offering domestic remedies that would reduce the need for recourse to the ECtHR.40 The decisions of a domestic court would be both less embarrassing than adverse judgments by a foreign court and, most important, more in tune with the particular circumstances and traditions of the U.K., including its political constitution. Certainly, there is good reason to believe that a national court will be more susceptible to indirect domestic democratic pressures than an international court is likely to be. Even if formally independent, national courts form part of the domestic political system. Their membership draws on the same broad political class from which national politicians emerge—a significant number of whom may even have practiced law alongside them. Moreover, the selection of judges is subject to various forms of direct or indirect political control and influence. A far thicker public sphere exists at the national as compared with the international level. Consequently, domestic courts come under greater scrutiny by the media and a broad range of interest groups and, thus, are more aware of public opinion than international courts. As a result, they tend to feel more obliged than their international counterparts to legitimize themselves and gain acceptance for their decisions among the wider public. As research on the U.S. Supreme Court indicates, courts follow the polls—or, at least, sustained, national electoral trends.41
That said, the ECtHR continues to cast its shadow over the HRA. In particular, section 2 (1) of the HRA requires domestic courts to “take into account” any relevant Strasbourg jurisprudence relating to a judgment involving a Convention right. That could be quite a weak instruction, strictly applying only to cases where the U.K. was a party. In fact, the courts generally have accorded Strasbourg jurisprudence a binding status.42 Arguably, that policy follows from the aim of avoiding litigation before the ECtHR. Moreover, domestic courts have deferred to Strasbourg as to the definition of what Convention rights require.43 Since their role under the HRA simply is to ensure compliance with these rights, they have deemed it inappropriate to challenge or outstrip the ECtHR rulings on what an acceptable standard of observance involves. However, that has not meant that Parliament need treat ECtHR norms as a ceiling rather than a floor, even if domestic courts have done so. Judges have merely felt (and, pace certain legal constitutionalist commentators,44 from a political constitutionalist position, rightly so) that it is for Parliament rather than the courts to decide whether it wishes to elaborate legislation that goes beyond what the ECtHR deems necessary to protect rights. So, while the HRA does not weaken the necessity of the British Parliament to stay compliant with ECtHR decisions, the deference of domestic courts to Strasbourg also creates a potential brake on their judicial activism and has arguably encouraged them to develop a domestic deference principle giving Parliament leeway as to how it might secure a given right. Though some argue such deference hinders the development of a distinctive British human rights jurisprudence,45 to a degree, that can reinforce political constitutionalism.
However, even where the new Supreme Court, like its predecessor, does not go beyond the U.K.’s commitments under the ECHR, its role is to make that commitment more present and continuous. As we shall see, a key issue has been the recognition, in part mandated by a Strasbourg decision,46 that proportionality rather than the looser norm of reasonableness now be applied when Convention rights are at stake.47 Meanwhile, the courts had already acknowledged that not all ECtHR jurisprudence necessarily applies to the U.K., having been formulated with regard to cases involving circumstances that do not obtain in Britain, or is always sufficiently clear or well-reasoned that it can be followed.48 There are also cases where there is, as yet, no relevant Strasbourg case law.
For the reasons noted above, it may still remain not just symbolically or formally but also, in many ways, substantively more in line with political constitutionalism for such judgments to be made by a domestic rather than an international court. Even in cases where the Court sees itself as doing no more than acting as Strasbourg would, at one remove, it will be doing so as the agent of a U.K. political order and be subject to the pressures from Parliament and British public opinion from which, to a large extent, it derives its authority and legitimacy.49 And when it acts in cases of a kind where Strasbourg either has yet to offer a view or has done so in ways that seem unclear or inappropriate, the Court can provide an interpretation that corresponds to the British context, including those circumstances that reflect its distinctive political processes. For example, at least some law lords have stressed that the HRA does not “authorise the judges to stand in the shoes of Parliament's delegates, who are decision makers.”50 The possibility does exist, therefore, for the HRA to bring rights home in ways that could potentially strengthen political constitutionalism vis-à-vis the ECtHR. The crux is whether, in doing so, the HRA must necessarily weaken political constitutionalism in other ways and move the U.K. ineluctably toward a legal constitutionalism, as some claim has occurred.51 Or can the Act be read more coherently as offering a way for bringing legal within political constitutionalism, as is generally thought its drafters intended?
Parliamentary supremacy and weak review
The crucial provisions for assessing the respective roles of Parliament and the courts under the HRA are sections 3, 4, and 19 of the Act and the interplay between them. Section 19 (1) requires the Minister in charge of a Bill to make “a statement of compatibility” before the second reading “to the effect that in his view the provisions of the Bill are compatible with Convention rights” or explicitly to remark “that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.” Section 3 (1) obliges the courts to read primary and subordinate legislation, whenever enacted, in a way that is compatible with Convention rights “so far as it is possible to do so.” However, 3 (2) specifies “this article does not affect the validity, continuing operation or enforcement of any incompatible” primary or subordinate legislation. In these cases, where both a provision is deemed incompatible and the primary legislation concerned prevents the removal of any incompatibility, then—as I noted above—section 4 allows the highest relevant courts to “make a declaration of incompatibility.”
However, such declarations of incompatibility do not strike down offending provisions, which remain in force, operable, and valid, and are not binding on the parties against whom they are made. The decision on whether to remedy the incompatibility by amending the legislation rests with the government and, ultimately, Parliament, although provision is made in section 10 for a fast-track legislative procedure to provide such remedial action. Let us explore each of these provisions in turn.
Sections 19 and 4: Upholding parliamentary supremacy?
On the surface, sections 19 and 4 might appear to be straightforward instruments of political constitutionalism. The first could be taken as offering the courts a clear indication that the legislation should be regarded as compatible; the second gives the last word on whether to revise legislation or not to Parliament.
However, once again matters are not clear-cut. With regard to section 19, courts initially paid little attention to these declarations of compatibility—in great part, for reasons a political constitutionalist ought to approve. By and large, courts have been wary of according too much weight to statements by Ministers or others as to what they intend by any piece of legislation.52 The standard case for paying attention to such statements is that the intentions of those who author a legislative text should be regarded as informing its authority. Yet, it is part of the political constitutionalist case that Parliament and its committees allow many voices to enter into the legislative process, with the result being the product of a dialogue among these voices and involving the mutual modification of many individual positions. Therefore, the authors of legislation are not individual members so much as the legislative body as a whole. Given that Parliament is not a coherent, unitary actor, it is doubtful that it makes any sense to speak of its intentions. At the very least, the only sensible way we can access those intentions is by paying attention to the plain meaning of the legislative text itself rather by attending to individual interventions in parliamentary debates.
A similar problem arises with the offering of reasons by legislatures. Legal constitutionalists sometimes contrast courts and legislators in this regard, and argue as if legislation is thereby unreasoned. Again, the reasoning occurs in the actual legislative process; the reasons of the legislature as a whole can only be those embodied in the legislation itself. After all, the reasoning of the individual members of the legislature may well have differed as to why the legislation represents an appropriate reading of rights on this matter. Like multimember courts, their agreements are likely to be “incompletely theorised,”53 the product of a convergence on a policy that may seem reasonable from a number of points of view.54
Some of these difficulties have been addressed potentially by the establishment of a Joint Committee on Human Rights (JCHR), two years after the HRA. The JCHR reports to both Houses on the compatibility question, taking evidence from Ministers, government departments, NGOs, and legal experts. It suggests amendments, where it deems them necessary, and has pushed the government toward outlining its views on points at issue in the explanatory notes published with every government Bill. These reports have ensured that rights considerations are raised in parliamentary debates and are often referred to in that context. As a result, it cannot be said that the rights enumerated in the HRA have received insufficient scrutiny in the framing of legislation. There are good grounds, then, for regarding the legislative text as embodying the legislature's considered view of the balance of rights with regard to any given policy. Legislation is not, as some have characterized it,55 simply the product of the unprincipled trading and aggregation of interests to promote public utility regardless of its impact on rights. Rights and interests have both played a role in the legislative process.
Nevertheless, two problems remain in regarding this feature of legislation as rendering the HRA fully compliant with political constitutionalism. First, legal advisers play a crucial role in the JCHR's deliberations. Their advice consists largely of second-guessing the likely judgments of the courts, be they domestic or the ECtHR. In this way, as Alec Stone Sweet pithily put it, “governing with judges” all too often “means governing like judges.”56 Yet, as we saw, a strong part of the political constitutionalist case lies in asserting the superiority of legislative over judicial decision making with regard to the moral and political questions surrounding rights. To the extent Parliament feels constrained by legalistic reasoning in its rights deliberations, this alleged advantage of political over legal constitutionalism is diminished.57 However, this point probably proves overstated. For example, the Communications Act 2003,58 which banned political advertising in the broadcast media except for independently regulated election and referenda broadcasts by political parties and a limited number of other relevant organizations which had been registered with the Electoral Commission, was the subject of two reports by the JCHR and was scrutinized by a specially appointed joint committee of both Houses of Parliament. As a result, Parliament believed that, although the legislation potentially breached ECHR article 10 concerning freedom of expression, it would proceed nonetheless as permitted under section 19. Indeed, it could be considered that Parliament's deliberation of the issue proved important in persuading the House of Lords to rule unanimously that courts should regard the law as compatible with ECHR article 10 in a subsequent case.59 As Adam Tomkins has remarked, this example shows how Parliament can use the new procedures to influence the courts rather than the other way round, with the HRA promoting precisely the sort of legislative deliberation about rights political constitutionalists advocate.60
Some commentators still feel, though, that a second and more intractable problem remains. For no matter how thorough and independent Parliament's deliberations of rights may be, its ability to control the judicial process remains limited. Resolving this question turns on how deferential the courts are—or can be made to be—to what Parliament decides on the rights question. Section 4 potentially supplies a solution in this respect, and has been regarded as the key provision in maintaining the political constitutionalist status quo. Thus, Jeremy Waldron regards the inability of courts to refuse to apply or moderate the application of a given law, notwithstanding their view that it is incompatible with human rights, as the hallmark of what he and others term “weak judicial review.”61 Waldron sees the U.K. as at the stronger end of a continuum62—given that judicial declarations of incompatibility can trigger a legislative process of remedial action—that puts New Zealand, where similar declarations have no such effect, at the weakest end. Canada, where courts can disapply the law but legislatures can pass laws with a “notwithstanding” clause that insulates them from judicial scrutiny, occupies a middle position. It is true that the U.K. also occupies a roughly middle position, since under section 19 a Minister can propose legislation he or she believes to be incompatible with Convention rights; nevertheless, this is a power that has been employed only once thus far.63
Section 4 was heralded as a core provision of the HRA. It was seen by many advocates of the measure as inaugurating a new model of judicial review that lay midway between political and legal constitutionalism.64 However, others—both legal and political constitutionalists—have argued that, in practice, there is little difference between weak and strong judicial review—indeed, that the former is a chimera.65 They note that, so far, Parliament has always complied with such rulings and amended the offending legislation accordingly. The key point, though, is why. Four sets of reasons have been given, none of which is inherently incompatible with political constitutionalism.
The first is that Parliament has exercised its prerogative. That it does so only rarely is neither here nor there, it remains Parliament's to exercise. 66 Indeed, if one takes the highest profile instance of a declaration of incompatibility, that of Belmarsh Prison,67 Parliament can hardly be regarded as supinely accepting the Court's decision. Though it granted the Court's judgment that the current detention scheme involved unreasonable discrimination against non-U.K. citizens, it took several months to respond, adopting the new control-order scheme following one of the longest Parliamentary debates ever. Meanwhile, the prisoners were only released once the new legislation was enacted so that they could be immediately rearrested. Rightly or wrongly, therefore, Parliament can hardly be viewed as conceding judicial supremacy.
A second reason is political culture—that any government would simply find it politically inexpedient to go against such a court ruling unless it were sure of overwhelming political support in doing so, as was the case, for example, when Roosevelt stood up to the Lochner-era reasoning of the U.S. Supreme Court.68 However, to the extent this argument holds—which, given the preelection commitment of the Conservative Party to repeal the HRA, is perhaps highly disputable—this reasoning also is not per se incompatible with political constitutionalism. After all, political constitutionalists value responsiveness to public opinion, and if a lack of popular legitimacy explains Parliament's compliance rather than a binding constitutional measure that literally gives them no choice in law but to comply, then its deference to judicial declarations of incompatibility is in line with the political constitutionalist position.
A third reason holds that where such declarations have been issued it is likely the ECtHR would have made a similar ruling. A failure to comply with a declaration of incompatibility would give prima facie weight to any appeal to Strasbourg and increase the likelihood of the case going against the government.69 Though some have argued that, where there is no existing case law, the ECtHR might apply a wider margin of appreciation than the domestic court, this is not probable. As we saw, not only have the domestic courts been guided by ECtHR standards in their judgments but also the fact that the highest domestic court had ruled some piece of legislation contravened a Convention right would almost certainly be taken as evidence by the ECtHR that this was the case. Nevertheless, we have seen the ECHR regime per se is not incompatible with political constitutionalism.
More troubling from the political constitutionalist perspective, however, is the fourth reason, namely, that the Court has only issued declarations of incompatibility in those cases where the judges concerned felt certain the government would comply, while, in other situations, they have used their power of interpretation under section 3 (1) to render legislation compatible with Convention rights. 70 Indeed, the use of section 3 (1) has been seen by legal and political constitutionalists alike as the aspect of the HRA that poses the greatest potential challenge to Parliamentary sovereignty. Many have argued that it largely undermines whatever powers may have been reserved to Parliament under sections 19 and especially 4.71 Consequently, it proves crucial for the political constitutionalist case to defend a plausible account of judicial deference and weak review in the use of section 3.
Weak review and section 3: The judicial “sphere” and deference to the “scope” of legislation
There are three main concerns with the use of section 3 by the courts.72 First, some have worried that the injunction that all subsequent as well as preceding legislation be read as Convention compatible goes against the view that no Act of Parliament can bind later Parliaments, with later legislation involving an “implied repeal” of any prior legislation with which it was inconsistent. Second, the ability of the judiciary to interpret legislation in a manner it feels is Convention compatible has been seen as allowing it, effectively, to amend legislation in ways that are contrary to the clear intention of Parliament. Third, that as a result, use of section 3 makes sections 19 and 4 largely redundant.
With regard to the first concern—the doctrine of implied repeal—courts have always assumed that in the absence of an explicit repeal of, or challenge to, prior legislation, then it is reasonable to suppose that Parliament wished to legislate in a way that was compatible with existing law. As a result, they have interpreted all new laws “so far as it is possible” as if that were so. Moreover, under the HRA, the declaration of compatibility under section 19 gives the courts explicit grounds for holding that view. Of course, where they find legislation to be incompatible, they now have to say so, explicitly. It might be argued this still replaces an implied repeal with an explicit repeal.73 Still, as we saw, such declarations do not of themselves disapply the law—that remains Parliament's prerogative. The Court must continue to apply the disputed legislative provisions, suggesting that, until such time as Parliament decrees otherwise, Convention rights do not apply in the area covered by the new legislation. As Nicholas Bamforth has argued, the HRA protection of Convention rights does not need to be repealed implicitly or explicitly in this case, because it is limited by the Act to those cases that do not fall within section 4 as incompatible with it.74
The second concern appears more problematic, for it involves the fear that section 3 (1) will lead the courts to depart from the conventional meaning of the legislative text in ways that had previously been deemed inappropriate, thereby challenging the rights-based judgments of Parliament. Yet here, too, the departure from traditional forms of statutory interpretation may be less substantial than is assumed, with judicial discretion, in certain respects, reduced rather than increased. Some commentators make it seem that any failure not to follow the literal letter of the law must involve the undermining of legislative supremacy and, with it, political constitutionalism.75 However, as I noted in section 1, it has always been the case that statutory interpretation has involved courts in clarifying unclear or ambiguous terms, correcting drafting errors, and overcoming incoherent or unintelligible provisions that are irreconcilable with the rest of the statute. With the best will in the world, one cannot hope to eradicate all such linguistic problems. Nor can legislators be expected to foresee all the potential cases and circumstances to which their legislation may be applied. As a result, they often use terms, such as “reasonable,” and employ general rules rather than specific standards with the intention of giving judges a degree of discretion that will enable them to tailor legislation to the peculiarities and particulars or special features of a given case. It would be impossible to rule out such discretion and replace it with a mechanical application of the law except in the crudest imaginable way, such as a two-strikes-and-you-are-out rule, that excludes drawing the various distinctions between cases that are generally seen as necessary to avoid unjust and dysfunctional outcomes.76 Any attempt to overcome this problem by writing all these distinctions into the law, inevitably would give judges discretion to choose which ones applied. Even then, it would be hard to imagine that every eventuality could be anticipated.77
However, none of the above need mean that judicial discretion is totally unconstrained. Any type of constitutionalist must believe it possible, for one reason or another, that judges can be bound by law—at least in the sense that they feel an obligation to justify what they do by reference to it. A political constitutionalist need only ask if it is possible to have a concept of law that conjoins Convention rights with Parliamentary sovereignty in a coherent way that might constrain the sorts of legal reasons judges could offer for their decisions. In particular, can there be legal norms that prevent judges from simply interpreting the law so that it accords with an outcome they personally believe best realizes human rights in the case at hand?78 I think a broadly legal-positivist view, of the democratic kind outlined earlier,79 holds there can be.80
Both the HRA and the other pieces of legislation that are to be read alongside it have a common source that renders them legally valid—namely, Parliament. Therefore, the grounds of compatibility—or incompatibility—must be those stemming from this source within the legislation itself. Under section 19, Parliament will have supplied only a limited set of reasons for regarding a given piece of legislation as Convention compatible, or possibly none at all, and it is to these that the judge must defer. I shall call this a limitation of interpretative “scope.” Alongside it, is a limitation of the interpretative “sphere” that is related to the activity of judging itself. Judges have a legally constituted role. They are not armchair moral philosophers but sit in courts constituted by certain rules and procedures that they have a duty to oversee in order to ensure a trial is conducted fairly and provides justice for the litigant. These include such formal rule-of-law notions as treating like cases alike, acting impartially, ensuring all sides have an equal chance to present their case, and so on. A political constitutionalist holds that it is appropriate for Parliament to decide general substantive issues of rights and to offer legislative resolutions of the disagreements that attend them. However, that function is compatible with regarding courts as entitled to ensure that the procedures for passing the law were duly followed and that the judicial process remains fair when it comes to applying such rights in practice. The due process, particularly in the court room, is their domain, where they can legitimately claim more expertise and authority than Parliament.81
Naturally, there are discretionary elements in deciding how the law applies. My point is simply that such discretion need not be arbitrary but may be legally sanctioned and deployed with regard to a certain set of moral principles—those enumerated in the HRA—and in conformity with the rationale of existing law (its “scope”) and the norms of the judicial role (as applying to the “sphere” of the court and related procedural issues). Such deployment comes with a legal duty to say when these options cease to be at all plausible because further reasons are needed to resolve the case in a rights-compatible fashion. To the extent this legal guidance has its source in Parliament, it will not be the case that section 3 (1) HRA undermines the very notion of Parliamentary sovereignty by offering a distinct moral test for the existence of law.82 Indeed, as Sandra Fredman has suggested,83 the HRA arguably strengthens Parliament in this regard because it directs judges to be guided in their decisions not by vague, permissive social sources of morality—such as notions of “natural justice” or an apparently ever-expandable “common law”—but by a specific and democratically enacted list of rights.
In fact, the Court has consistently argued that its post-HRA rights-based review of legislation has legitimacy because it accords with the express will of Parliament that it interpret the law with regard to these norms.84 In itself, however, simply listing a certain set of rights will not be enough to constrain judicial discretion. For these rights still allow for pretty broad and widely differing interpretations, and it is the basic claim of political constitutionalists that a democratically elected legislature ought to be responsible, ultimately, for justifying which interpretation applies in legislation. The notions of scope and sphere enter here, offering crucial guidelines. The former constrains the allowable breadth of legislative interpretation to those purposes proposed by—or that can be plausibly attributed to—Parliament, the implications of which for rights are now spelled out under section 19; the latter, the domain where judicial independence holds sway.
By implication, these criteria also provide guidelines for addressing the third concern noted above. For, they can help determine when interpretation under section 3 should give way to a declaration of incompatibility under section 4; namely, on those occasions where the Court cannot render the law compatible with its reading of Convention rights, within the judicial sphere, without going beyond or altering the scope of the legislation, thereby trespassing on the legislative domain that properly belongs to Parliament. Crucially, this division of labor also relates to the application of the doctrine of proportionality, which is regarded as one of the main innovations introduced by the HRA. Whereas courts may legitimately question whether a measure that restricts an individual's rights within the judicial sphere is proportionate to the legislative goal to be achieved, they should avoid judging whether the legislative scope per se is proportionate in its effect on Convention rights in cases where precisely that issue has been determined by Parliament under section 19. At most, they should employ section 4 to request Parliament reconsider. That leaves the constitutional determination of rights where a political constitutionalist believes it properly resides—with the legislature. Indeed, even advocates of constitutional judicial review under the HRA appear to accept that the more a court's decision touches on matters of legislative scope, the greater its deference to the executive and legislature should be, allowing at the very least for a wider margin of appreciation as to what the upholding of rights might require.85 For such judgments necessarily involve courts in determining the relative weight different interests and values contribute to the public good—a matter that, for the political constitutionalist, the limitations of the judicial sphere, not least their isolation from the public, however warranted for the impartial application of the law, makes them ill-suited to do.
To see how these criteria might work in practice, let us consider their implications for two leading cases under the HRA—R v. A86 and Ghaidan v. Mendoza.87 As I noted at the outset, my intention is not to show that these and other cases were decided in ways compatible with political constitutionalism but, rather, to ask if they could have been and, if so, what that would have involved. All three concerns were potentially at issue, with a number of commentators arguing that these cases reveal how the use of section 3 (1) effectively undermines the apparent safeguard of Parliamentary sovereignty provided by section 4.88 By contrast, I shall argue the foregoing analysis suggests section 3 can be regarded as a justified use of judicial discretion within the court's own sphere. However, R v. A also involved a challenge to the legislative scope of the law in question, albeit with attempts by certain members of the Court to argue otherwise, and so ought to have led, at most, to a declaration of incompatibility under section 4. Instead, Ghaidan can be read as being consistent with a reasonable understanding of Parliament's determination of the relevant law's scope when applied to this case and, as such, provides an example of the use of section 3 to address rights in the judicial sphere that is consistent with a political constitutionalist perspective.
In R v. A, the legislative provision at issue was section 41 of the Youth Justice and Criminal Evidence Act of 1999 (YJCEA). Known as the “rape shield” provision, it prohibited the admissibility of evidence regarding sexual history apart from certain narrowly defined exceptions. The intention was to overcome the much-criticized section 2 of the Sexual Offences (Amendment) Act of 1976, which had left the question of admissibility largely to the discretion of the trial judge, with the perceived result that the position of complainants had frequently been prejudiced by irrelevant and humiliating evidence that had come to deter many women from even bringing rape cases. The point at issue in R v. A was whether this provision breached the defendant's right to a fair trial under article 6 ECHR by blocking evidence of an alleged prior consensual sexual relationship.
The House of Lords ruled that, although prima facie it appeared that the statute offered a reading of the balance between the rights of complainants and defendants that was heavily weighted toward the former, it was allowed—indeed, incumbent on them “in accordance with the will of Parliament”—to employ section 3 (1) HRA to read section 41 (3) (c) YJCEA in such a way as to include an “implied provision” that evidence necessary to make the trial compatible with article 6 ECHR was admissible. However, this “reading in” goes beyond the removal of a linguistic confusion or error of the kind adverted to above. As such, it appears to trespass on the scope of the legislation, given that there can be no doubt that Parliament had wished to block the use of the very kind of evidence the Court now sought to allow. That said, the heart of the case was a sphere of responsibility that could be regarded, rightfully, as that of the judiciary: the fair conduct of a trial. The difficulty lay in the Court's being unable to rectify its perception that an injustice might arise in this sphere without altering the scope of the legislation. True, the Court did attempt to justify its decision by arguing that the reading in was to give effect to what it believed was the main purpose of the legislation; namely, to ensure rape trials were not biased. The Court claimed this case had merely revealed that in these particular circumstances—either unanticipated or not fully considered by the legislature—the laudable desire to protect the rights of complainants, found in the express wording of the statute, had undermined its central implicit purpose by jeopardizing the equally compelling rights of defendants. Thus, it could be said the Court's argument was that its decision had the limited purpose of better realizing the legislature's intent or scope, and doing so in a sphere where it possessed a competence that had always been reserved to it and in terms that the legislature itself had ordained in the HRA. Certainly, it is significant that the Court felt it necessary to legitimize itself in this way. Still, even if purposive construction has long formed part of statutory interpretation,89 many commentators feel—rightly in my view—that, in this case, the Court went too far and effectively changed the scope of the legislation.90 Given the Court's justified worries with regard to its own sphere, it would have been better to issue a declaration of incompatibility. Indeed, those who defend the judgment, do so as part of a more general defense of strong forms of constitutional review.91
By contrast, Ghaidan, which became the leading case of HRA interpretative adjudication, arguably represents a weaker form of review. This case centered on whether paragraph 2 (2) of the Rent Act 1977, which allowed a person who had lived with a tenant “as his or her wife or husband” to be treated as the tenant's “spouse” and, hence, to be entitled to a secure tenancy on the death of their partner, could be read as including same-sex couples. It was thought such a reading was required to avoid discrimination on impermissible grounds “under Article 14 taken together with Article 8” ECHR. The Court decided that section 3 (1) allowed it to do so, thereby overturning a ruling in a pre-HRA case, Fitzpatrick,92 which had deemed the express wording of “husband” and “wife,” to be gender-specific and so had ruled out homosexual couples. Again, at least one law lord argued that behind the explicit wording lay a more abstract legislative purpose of protecting the interests of people “living together in a close and stable relationship, and it was this ‘underlying thrust of the legislation’ that made a rights compatible interpretation possible.”93 Others argued similarly, also apparently stepping back from Lord Steyn's more radical position in R v. A, that a rights-compatible interpretation should (and in this case did) reflect the “fundamental features of the legislative scheme” and “go with the grain” of the law.94 Given that Parliament itself had amended the 1977 Act in 1998 to make provision for unmarried heterosexual couples, thereby implying a change of legislative focus from official marriage to cohabitation, these arguments that the interpretation fell within the scope of the legislation seem well founded. Indeed, even Fitzpatrick might have been decided otherwise. After all, courts had departed from the express wording of statutes in other pre-HRA cases in order to reflect changes in social morality.95 In Ghaidan, the passage of the Civil Partnership Bill through Parliament at the time, which would prevent future discrimination against same-sex couples, and the fact the government did not contest the case further reinforced the acceptability of seeing the judicial interpretation as compatible in scope with Parliament's underlying purpose. This approach conforms to a standard pattern within the HRA case law, whereby even if courts depart from the enacted intention of Parliament found in the express terms of a statute, they will refer to its unenacted legislative purpose and to the more general parliamentary intention that they use 3 (1) to make legislation Convention compatible. As such, their interpretations remain consistent with political constitutionalism.96
It might be objected that, even so, Ghaidan involved sufficient creativity with regard to the reinterpretation of scope as to render a declaration of incompatibility more appropriate. The contrast with Bellinger—a case involving the recognition of a marriage by a transsexual woman as valid, where a declaration of incompatibility was issued—proves instructive in this regard.97 Here, the government had accepted a recent ECtHR decision holding the U.K. to be in breach of articles 8 and 12 for denying legal recognition of gender reassignment;98 it was already exploring the many issues to do with such recognition that went beyond the immediate case; and it had announced new legislation would be available, offering a remedy to the plaintiff. As a result, the interpretation by the Court was unnecessary in order to obtain justice for the litigant and would have preempted the work of the legislature. Invoking section 4 did little more than confirm the view that Parliament had already taken of the issue. Instead, in Ghaidan, interpretation was the only way to find justice for the litigant—whose partner, being dead, would not benefit from legislative change. So there were strong reasons, relating to its sphere, for the Court to adopt the interpretative route. Moreover, it could do so, as we saw, by following existing legislative developments as to the law's scope. A parallel point emerges in Re S,99 where the Court overrode a reading in by the Court of Appeal on the grounds that it went against a “fundamental feature” of the legislation in question, in this case the implementation of care orders by local authorities under the Children Act 1989. Here, the Court of Appeal's interpretation can be viewed as going beyond both the judicial sphere as well as the law's scope by essentially proposing a wholly new procedure for dealing with care orders in contrast with that proposed by Parliament. The court's reading in could be neither catered for within the existing terms of the Act nor related to its underlying purpose.
Of course, notions such as the “sphere” and “scope” of judicial decisions and legislation do not provide hard and fast rules. A number of judges have also felt uneasy about using section 3 (1) to depart from what they see as the “mandatory language used by Parliament” in order to attribute to it a “presumed” intention.100 However, to a degree, Parliament has always looked to the courts to use their discretion effectively to interpret legislation in ways that seem suited to the case and to extend or amend it to fill gaps or avoid injustices. Does that make the ritual deference to Parliament mere window dressing? Some arguments along these lines suggest that because courts are the end users of legislation and because the law cannot prescribe entirely how it should be applied, Parliamentary sovereignty is a myth.101 I do not believe that need be so. One may regard Parliament as the valid source of law in the U.K. but accept that judges have always had to employ a range of tools—logical, linguistic, and moral, among them—to make reasonable decisions. Some of these tools are needed to make sense of the law in a given case; others to indicate where the law fails to make sense and needs supplementing from other, less-binding sources, such as positive morality or the exercise of judicial moral and political judgment. What judges are doing in referring back to Parliament is recognizing the need to validate their views in a given way. They can distinguish good or bad laws from good or bad judgments about laws and, appropriately enough, see Parliament as the forum where, despite our disagreement about rights, we can seek to resolve them in authoritative ways. Having law-based criteria for determining the merits of law will naturally strengthen the confidence with which judges use them. Effectively that is what the HRA does by making the ECHR part of domestic law. Yet it is perfectly coherent for judges to say they acknowledge the force of Convention rights as legal standards because Parliament has authorized them to do so and to see Parliament as the ultimate arbitrator of whether or not they apply and—to the degree that is possible through general laws—of how they apply. So conceived, judicial interpretation post-HRA would be more solidly in line with Parliamentary sovereignty than it was before.
The HRA contains a number of explicit provisions designed to protect Parliamentary sovereignty and the U.K.’s political constitution. Legal constitutionalists have argued not only that these provisions ought not to apply—that they are illegitimate and, in certain ways, unconstitutional—but also that they are implausible and impossible to operate in practice. My prime aim has not been to show that they do operate, so much as that they could. As I noted, legal constitutionalist critics of Parliamentary sovereignty regard the court's deference to this doctrine with great skepticism—as either deluded or purely formal and possibly cynical.102 It is sometimes assumed that political constitutionalists embrace a similar skepticism regarding notions of rights, the rule of law, or judicial impartiality. However, at its heart, political constitutionalism can be regarded as providing a defense against just such skepticism.
On the one hand, political constitutionalism offers a way of identifying law and explaining its authority by associating its source with a democratically elected legislature.103 On this account, the assurance we have that law reflects our interests and secures our rights and that we have good reason to obey it comes from the fact that it is promulgated and debated by our representatives. Far from being skeptical of rights or law, political constitutionalists defend both. They merely regard the legislature as the most appropriate forum for seeing rights in the round and ensuring that their specification in legislation takes into account the full range of considerations necessary to promote the public interest. They also see the need for a large number of accountable representatives to agree on a settled law as a means for preventing arbitrary rule by any one person or group.
On the other hand, that does not involve any skepticism about courts—merely that legislation and adjudication involve different qualities. Judges have responsibility for and expertise in issues of fair process that form part of their sphere and in assuring the law is appropriate to its scope or purpose with regard to a given litigant. These are issues that cannot be addressed fully at the legislative level, which is too remote from the peculiar circumstances that surround a particular case. However, by the same token, courts are by their very nature too narrow in focus and as forums to deal adequately with the issue of deciding a collective policy on rights that looks at the myriad ways different rights interact. They lack the informational and legitimacy advantages that come from decision making by large numbers of representatives responsive to the views of millions of electors.
The HRA, arguably, should be read as reinforcing both these features of political constitutionalism. Section 19 and the processes that have developed around it reinforce the conscientiousness with which Parliament deliberates about rights. Section 3 (1) reinforces the rights-based aspects of adjudication. However, courts also have the ability to reinforce, further, Parliament's responsibilities through section 4—using this both to signal when they feel Parliament might, in the light of a given case, be advised to think again or to indicate where they believe the executive may have overstepped its authority and should be subjected to additional Parliamentary scrutiny.
The division of labor, here, accords with the reasoning Locke gave for moving from the state of nature to civil society and that lies at the heart of the “separation of powers,” which he first began to theorize. Namely, that civil society overcomes the disadvantages in the state of nature of the lack of a known and settled law “allowed by common consent to be the Standard of Right and Wrong and the common measure to decide all controversies between them” and of “a known and indifferent Judge, with Authority to determine all differences according to the established Law.”104 Parliament provides the mechanism for establishing a settled law through common consent; the judiciary supplies an indifferent judge. By contrast, the legal constitutionalists risk conflating rights, law, and legislation with judicial adjudication. Meanwhile, they offer no clear mechanism, of a kind equivalent to electoral accountability, to explain why we should not see their assurances—that judges are not deciding in arbitrary ways but according to the higher constitutional law offered by rights—as anything but formal pieties. After all, judges disagree on what these rights require yet need not seek to reconcile their disagreements in ways that might obtain “common consent,” and the highest courts allow no challenge to their decisions. Rights-based constitutional review by courts thereby replaces the sovereignty of Parliament with the sovereignty of judicial monarchs, returning us to what Locke regarded as worse than the state of nature—a condition where the ruling power governs by “extemporary Dictates and undetermined Resolutions,” the “unlimited Decrees of their sudden thoughts, or unrestrain’d, and till that moment unknown Wills.” In this way, skepticism about the possibility of a political constitution turns into skepticism about constitutionalism itself. And so we come back to the opening apparent paradox, the resolution of which arises by virtue of the British constitution's remaining true to its history in successfully combining both the separation of powers and a bill of rights not in despite of but because of Parliamentary sovereignty.