Repeal – How Can We Tell?
To what extent are the changes already achieved by the Human Rights Act now embedded in our law, and not reliant on the continued survival of the Act for their existence? 12To start with there would be the problem of what to do with laws that have already been subject to statutory interpretation on the basis of the operation of section 3 of the Human Rights Act: the partners of deceased tenants in same-sex relationships; the inquests that examine more than the mere cause of death where there is some element of potential official culpability; the immigrant couple who no longer need to pay a fortune to get married; the family who have a chance to explain themselves before being evicted from their home; the asylum seeker for whom the prohibition on inhuman and degrading treatment in article 3 of the Convention has ensured that he or she eats; and so on—there are a myriad of examples, many of them covered in earlier chapters of this book. Are these interpretations now to be unravelled under the force majeure of repeal, either of the whole package or of the bits of the Act (section 3 for example) which drove these interpretative outcomes? Will things depend on whether the law under scrutiny was passed before or after the Human Rights Act (thus indicating a notional awareness (or not) of that legislation on Parliament’s part)? What about those statutes where the Human Rights Act requirements are specifically referred to, as in the destitute asylum case, Limbuela? Will such obligations survive repeal of their parent Act or fall away with it? Does it depend on whether the repealing measure remembers to obliterate them as well?
Much progress on a common law of rights was achieved, it is worth emphasizing, before the Human Rights Act had even been drafted. Indeed, articulated in the limbo period after the measure’s enactment but before its implementation, remarks by Lord Hoffmann in a case from 2000 about the extent to which the common law was committed to the protection of human rights, have become one of the most frequently cited authorities in the decades that have followed, Human Rights Act or no Human Rights Act. It was as though this measure enacted in the first term of the Blair government was merely confirmatory of a pivot towards rights that the genius of the common law had already been in the course of successfully executing. Not even the most ambitious of Tory revolutionaries plan to abolish the common law; in fact they are excited by returning to it its lost power. These dicta suggest, though, that this great beast might itself be a human rights oracle and not the creature of the past beloved of Professor Finnis and his disciples (whom we came across in an earlier chapter).
It might even be thought that the judges have themselves been anticipating repeal of the Act by the way in which they have recently been approaching it. A marked shift was evident in three Supreme Court cases decided in quick succession in the summer of 2014. In Kennedy v The Charity Commission, the Supreme Court took the opportunity of a case on freedom of information concerning access to information on certain of the Commission’s inquiries to flag up for advocates the desirability of adopting a new approach to rights. Strasbourg decisions were not to be as relied upon as slavishly as heretofore and more attention was to be paid to, as Lord Mance put it, ‘the domestic legal position’. The modern principles of judicial review extended beyond EU and Convention law and were capable of operating at a deep level of scrutiny where ‘a common law right or constitutional principle [was] in issue’: It could do this without the crutch of the Convention. In Lord Toulson’s view, since enactment of the Human Rights Act ‘there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.’ Five of the seven judges held to this position, Lords Neuberger, Clarke, and Sumption agreeing with Lords Mance and Toulson. In vain did Lords Carnwarth and Wilson in dissent complain that this common law turn had been ‘unsupported by any of the parties before us’ and as a result the judges had ‘not had the advantage of full argument’.
There are other, similar cases: A v BBC is one, Barnes v The Eastenders Group another. We can expect more such revivalist common law emulations of human rights in the future, whatever happens to the Human Rights Act. That law may well have been the ladder that allowed the common law to ascend to its current ethical heights but it is not necessary to it remaining in the lofty position it now occupies.