Conservative Anti-HRA Rhetoric, the Bill of Rights ‘Solution’ and the Role of the Bill of Rights Commission

This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.

Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.

The Impact of the Human Rights Act on Advocacy

This chapter reflects on the impact of the Human Rights Act (HRA) in its first 10 years on litigation and, in particular, on advocacy. It suggests that the impact has been important but not revolutionary: the HRA has fitted into the existing legal landscape and has not required radical changes to the rules on procedure and evidence. It examines four areas in which its impact can be felt: the nature of the evidence required in human rights cases; disclosure and candour in judicial review proceedings; the increased need for cross-examination of witnesses; and the role of third-party interveners because human rights cases tend to raise issues of importance to the wider public. Finally, it examines the increasing importance of international law in domestic cases, which can be attributed in part to the impact of the HRA.

The Continuation of Politics, by Other Means: Judicial Dialogue under the Human Rights Act 1998

Much of the judicial-dialogue debate implies that this process was initiated by the Human Rights Act, but developments since its enactment arguably refine the long-established process whereby the courts interact with the other branches of government. For example, when individuals (often supported by pressure groups) pursue rights-based claims they may do so not with the expectation that the courts will uphold their claim, but in the hope that judges will issue a declaration of incompatibility with which they can influence political debate. The Human Rights Act marks an increase in the volume (in both senses of the word) of such dialogue. Judges must now consider their decisions not only regarding their impact upon UK government policy but also with one eye towards ensuring that the European Court of Human Rights upholds their decisions. This chapter examines these efforts, focusing in particular on the growth in ‘protest cases’ before the courts.

Deconstructing the Mirror Principle

The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.

Cross-fertilisation of Constitutional Ideas

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

Human Rights and Legislative Supremacy

This chapter outlines the measures implemented for the protection for human rights available in New Zealand, Australia, and Hong Kong. It examines the influence of jurisprudence from the United Kingdom and European Court of Human Rights on those systems, and traces the conditioning effect of the doctrine of legislative supremacy on the development and implementation of rights instruments in New Zealand and Australia.

Human Rights and Judicial Technique

This chapter assesses changes in judicial approach and technique since the enactment of the Human Rights Act (HRA), and whether they are irreversible. It considers the language of analysis; the significance of terms such as ‘deference’, ‘institutional competence’, and ‘weight’; and the interpretative obligation in s.3 HRA enabling radical re-interpretation, and its relationship with the s.4 power to make declarations of incompatibility. It asks whether the ‘no less, but certainly no more’ than Strasbourg approach, with its need to predict outcomes in Strasbourg, reflects a ‘domestic remedy for breach of international obligations’ view of the HRA, or is an indication of the courts' understanding of their constitutional role and its limits. Finally, it suggests it is important not to sideline or forget the potential of the common law and the continued relevance and importance of traditional common law public law techniques.

Back to the Future? Judges, Politicians and the Constitution in the New Scotland

This chapter gives a view for and of Scotland. It highlights the different constitutional status given to Convention rights under the Scotland Act 1998. These constitute absolute and non-negotiable limits on the powers of the Scottish government and the Scottish Parliament, limits which are to be enforced by and before the courts. This new constitutional position of judicial primacy has led to certain political tensions within Scotland which have become focused, in particular, on the UK Supreme Court when exercising its devolution jurisdiction. The consequent juridicalisation of (Scottish) politics has resulted in a certain politicisation of (Scots) law, and a new and uncertain marriage between Scottish political nationalism and the formerly depoliticised legal, ecclesiastical, and romantic nationalisms which had characterised Scotland since the 1707 Union.

A Bill of Rights for the United Kingdom? Lessons from Overseas

The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.