Last year’s Supreme Court decision in R (AAA) v Home Secretary – which found the British government’s Rwanda policy to be unlawful – has reignited broader debates about the position of a government which commands a majority in Parliament vis a vis the judiciary, the separation of powers, the extent to which legislating against judicial decisions is constitutionally proper or compatible with the rule of law, and the appropriateness of disapplying sections of the Human Rights Act 1998 (HRA 1998). This post does not restate or reengage with such topics; substantive attention has already been given by Tom Hickman KC, Professor Mark Elliott, Adam Tucker, Professor Sarah Singer, and Richard Ekins KC et al. Neither does it take a position on the feasibility or desirability of any specific government policy, the continued operation of HRA 1998, or membership of the European Convention on Human Rights (ECHR).
Instead, this post will argue that the backlash to and disapproval of the British government’s response to R (AAA) – the introduction of the Safety of Rwanda Bill, which, amongst other measures, allows Parliament to diverge from the Supreme Court’s judgment – neatly evidences the intended effect of New Labour and Lord Derry Irvine’s HRA 1998 system and judicial reforms. More specifically, that effect included, firstly, ensuring all policy and legislation-making centres around a culture of rights-compatibility. This was to be given priority over debates regarding the merits and necessity of an elected government’s policy preferences and assessment of the public interest. Secondly, it encourages the perception of the judiciary as unchallengeable and hierarchically superior to other branches of the state.
By tracing the political thought of New Labour’s constitutional agenda – in respect of rights, policy, and legislation – and, in particular, that of Lord Irvine, via his published work, speeches, and House of Commons debates, it becomes clear that the undesirable compatibility culture inherent in the HRA 1998 and perception of judicial supremacy were purposely created to constrain an elected government that commands a majority in Parliament.
The Culture of Compatibility
For New Labour, the aim was to ensure domestic policy and legislation was subject to, and heavily shaped by, the rights found in the HRA 1998 – particularly via sections 3, 6, and 19 – regardless of whether the domestic public interest or common good, according to a democratically elected majority government, required departing from such measures. As such, governments of all stripes would be predisposed to, and forced into designing and arguing for, policy that sat within the HRA 1998’s framework and ECHR case-law. It has been argued that, because the HRA 1998 and the ECHR rights within are ‘dynamic’ and consistently evolve (as a result of the ‘living instrument’ doctrine), policymaking and legislative deliberation will, for the most part, only ever be concerned with whether any intended action has overstepped the moral and legal boundaries set by said rights and accompanying case-law. As such, other pertinent questions about the need, validity, strengths, weaknesses, and democratic support for any proposed measure will often become secondary and be given much less attention. The political thought and constitutional rationale of the HRA 1998’s main author, Lord Irvine, supports this claim.
Lord Irvine was clear-eyed about the types of rights-based reforms he wanted to introduce into the British constitution. He unequivocally claimed that New Labour’s HRA 1998 sought to mould not only the content of law in a range of areas but also the law-making process. As such, it was New Labour’s specific intention to ensure government policy and legislation prioritised and was framed around individual rights. The requirement for government ministers to make statements of compatibility when introducing a Bill into Parliament was vital to this end. Lord Irvine explained that such measures obligated ministers and legislatures to keep in mind the impact on rights as expressed in the HRA 1998 – and by extension the ECHR jurisprudence – when doing their work. So, where a bill was introduced to the House of Commons the government minister in charge had to make a statement in the affirmative or negative. Lord Irvine believed that this would ensure there was ‘no fudge’ and guaranteed the government minister would face heavy scrutiny. He claimed, ‘Parliament will, no doubt, scrutinise closely any draft legislation which risks infringing human rights’. As a result, the ‘responsible minister’ would have to justify their decision openly, ‘in the full glare of parliamentary and public opinion’. Lord Irvine suggested that where ministers of a government sought to curtail qualified rights, or rights more broadly, legislators would have to think carefully about whether what they were proposing was necessary and for what object it is necessary in a democratic society. He ended this argument by claiming ‘sovereignty will in future have to be exercised within an environment highly sensitive to fundamental rights’.
Moreover, Lord Irvine claimed the decision to subject all public bodies to the jurisdiction of the HRA 1998 showed the prioritisation of rights-based compatibility measures. New Labour’s expansion of judicial review in that Act allowed for judges to use a more malleable proportionality test (compared to other stricter thresholds e.g., Wednesbury) to achieve maximum compatibility with the rights in question. Indeed, when discussing the principle of proportionality, Lord Irvine confirmed that public bodies would be subject to ‘considerably more rigorous scrutiny … than Wednesbury review’ and, importantly, he conceded the ‘special arena of human rights’ would entail high degrees of judicial intervention.
In sum, Lord Irvine stated it was New Labour’s and his own intention to create a clear rights-based policy making process. Indeed, they designed a legislative and deliberative process which aptly manoeuvred government ministers, parliamentarians, courts, and by extension public discourse around the question of rights-compatibility. Whilst Lord Irvine maintained that parliamentary sovereignty would be preserved, and Parliament could continue to legislate as it wished, the intention was to reposition the terrain for legislating towards matters of compatibility. If Parliament sought to legislate against the grain of the HRA 1998, the question would not be of sovereignty or public interest but of rights compatibility. The duty placed on domestic courts to read primary and subordinate legislation in a way that is compatible with the rights located in the HRA 1998 has led to a wide range of British government policy being reduced to such debates. Measures in relation to certain characters and groups in society have either been prevented or have had to be significantly adjusted due to the strict requirement of compatibility. For example, cases that have been subject to such compatibility measures include IRA members claiming to suffer a breach of the right to life, the blocked deportation of suspected terrorists, and, despite not being previously subject to parliamentary discussion, the UK’s indiscriminate ban on prisoner voting. Even British government policies concerning public ownership and late-night flights from London Heathrow airport have been subject to questions of compatibility.
Of course, while these types of cases can and often have been decided in favour of the British government, the reduction of substantive policy proposals to discussions of ECHR-compatibility, and the resulting delays to implementation of policies, are debilitating for domestic legislative or public interest programmes. This may also increase the risk that proposed measures will have to be amended due to public pressure and the attention that surrounds it – even before any definitive decision has been made about compatibility. Whilst adhering to basic minimums of rights is important, to confine the legislative and policy-making process so that it only or disproportionately considers HRA 1998 compatibility distorts, limits, and significantly harms domestic deliberations about any proposed measure. Such a bias towards compatibility reduces the role of unique customs and traditions of the country that might inform policy programmes. It also has the potential to relegate the view of legitimate domestic actors or bodies who may have a role in influencing policy or legislation (trade unions etc). As such, designing and implementing domestic measures require some degree of political and legislative freedom, relatively free from compatibility measures that are premised on decisions made by the supranational voices of the European Court of Human Rights. It might be preferable and more democratically inclusive to ensure the terms of the debate do not unduly centre around HRA 1998 compatibility and supranational standards.
Overall, New Labour and Lord Irvine’s culture of rights-compatibility, for any current or future government, might prove to be tiresome. There will doubtless be occasions where domestic approaches taken on areas of law and policy will be incompatible with HRA 1998 and European supranational case-law or thinking. When this happens, discussions that try to give equal weight to public interest and domestic necessity, for example, are few and far between. For example, the British government’s original intention behind the Rwanda scheme – removing asylum seekers to Rwanda to have their claims determined – and the merits of such a proposal have been given much less attention. Similar systems are being considered by a range of European countries. As such, a more open discussion about asylum seekers, illegal migration, and third countries would aid the policy-making process. An intense focus on compatibility might lead to an elected government being forced to abandon or alter initiatives to such an extent the initiative itself no longer serves its original purpose.
Fostering Feelings of Judicial Supremacy
In addition to the culture of compatibility, New Labour and Lord Irvine’s HRA 1998 created the perception that the judiciary, and their judgments, were hierarchically superior to the elected majority government in Parliament. Or, in other words, a false impression was created that framed Parliament, and the majority government within, as being unable to question or legislate against judicial decisions. Historically, the British constitution is no stranger to judicial checks on potential overreaches of power. But it is not through enforced judgments that Parliament complies with judicial decisions. Instead, it has been through sovereign self-regulation, conventions of restraint and respect, and, where this fails, the British system lends itself neatly to parliamentary scrutiny and, ultimately, electoral assessment. However, the New Labour government encouraged an Americanised feeling of judicial supremacy by, firstly, reframing the role of judges and, secondly, allowing them to enter more substantive discussions about the merits of any given policy or legislative measure in question.
Firstly, Lord Irvine confidently asserted that the HRA 1998 reforms ushered in a new system and prominence for judicial authority. He understood that the British system was not like that of the United States (US), with a written constitution, but he believed that the judiciary should be tasked with protecting substantive rights and the content of those rights. He argued that the success of the US constitution in delivering a developed system of rights protection was due to the power given to the courts. He claimed, armed with positive rights that had a consensual basis, the British judiciary would be provided with the ‘constitutional warrant’ it needs to uphold those rights. Strikingly, in comments that would petrify Lord Chancellors of the Labour Party’s past, Lord Irvine also argued that characteristics of the US Supreme Court would underpin the new rights protection model in the UK. By moving away from the Diceyean common law model, the ‘the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way’. Whilst arguing this would speak to Britain’s proud libertarian system, Lord Irvine was explicit that the task being given to the judiciary, via the HRA 1998, was tantamount to the one begun by justices of the US Supreme Court over 200 years ago.
Secondly, with his recasting of the British judiciary in the same light as the US Supreme Court, Lord Irvine explained that the introduction of New Labour rights-based reforms would begin a specific, new, process of justice based on the promotion of positive rights. As such, he believed the mechanics of the HRA 1998 changed the constitution to one where citizens asserted a positive entitlement that was expressed in clear and principled terms. This meant that British judges, for the first time, were able to make their own distinctive contribution to the protection of rights. But, more importantly, Lord Irvine claimed the judiciary would now be armed with a ‘catalogue of new rights’ and ‘new tools’ to uphold freedom. Despite New Labour arguing their rights-based reforms maintained the position of Parliament as the ultimate arbiter, Lord Irvine specifically claimed there would be much pressure to concede ground to any decision that the court has made. This would especially be the case where a section 4(2) declaration of incompatibility – where legislative provisions went against the grain and values of the HRA 1998 – was made. Lord Irvine claimed:
… the issue of a declaration of incompatibility is very likely to prompt the amendment of defective legislation. This follows because such a declaration is likely to create considerable political pressure in favour of the rectification of national law … Consequently, while British courts will not possess the power to strike down legislation which is incompatible with human rights, their power to issue a declaration of incompatibility is substantial, given that, in pragmatic terms, it very probably will lead to the amendment of defective legislation. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review …
Commentators broadly agree on the potency of such a declaration, despite Parliament, in a technical sense, having the ability to ignore said declaration. With some arguing that ‘legislation has so far always been amended to respect such declarations of incompatibility’, a declaration of incompatibility places ‘immense pressure’ on the government, and that it would be ‘politically inexpedient to go against such court rulings’. Indeed, the political pressure created by a ‘Supreme’ Court which rules against a government tends to be so enormous that in practical terms the court, not Parliament or the government within, is viewed as supreme. In effect, such a measure is tantamount to ordering the government in Parliament and Parliament itself to halt or change direction – something which, prior to 1998, was constitutionally improper and unfamiliar.
Moreover, Lord Irvine claimed judges would also be able to conduct a more substantive review of human rights and policy when ensuring the legislation or policy in question was compatible with the HRA 1998. This was described as a ‘major shift’ from a concern with form to substance. Lord Irvine argued that the domestic courts would be able to examine the merits of a decision to see whether it was necessary to limit a right and whether the extent of the proposed limitation was required. In this way, Lord Irvine and New Labour sought to create a moral approach to judicial decision-making. The courts would now have to be satisfied that interference with the protected right was justified in the public interest of a free democratic society. The result, Lord Irvine explained, would be judicial decisions based on the morality of government policy and legislation – not simply its compliance with the bare letter of the law. Lord Irvine noted his pleasure at these new powers, which he recognised as going beyond constitutional norms by allowing courts to engage with previously forbidden matters, act against public bodies, and reshape public body decision making. He closed these arguments by restating his belief that judges were guardians of fundamental rights, and predicted that courts would now take an interventionist approach regarding rights while narrowly construing any provisions which appear to inhibit their application.
Lastly, whilst seemingly cosmetic, taken with the above, New Labour’s decision to disband the Appellate Committee of the House of Lords and create a new, relocated, Supreme Court – via the Constitutional Reform Act 2005 – gives further weight to their intended aim of fostering feelings of judicial supremacy. Instead of adhering to the unique commixture of powers in the British constitution, the Department of Constitutional Affairs, at the time, explained the intention was to redraw the relationship between the judiciary and other branches of the state – in addition to enhancing judicial independence. Lord Woolf also commented on the renaming and role given to a Supreme Court potentially being a ‘catalyst causing the new court to be more proactive than its predecessor. This could lead to tensions’. However, New Labour firmly argued it was time for a Supreme Court to move out of the shadow of the legislature.
Overall, New Labour’s package of rights-based reforms is responsible for the support shown for the HRA 1998 and judicial authority. More specifically, there is often extensive backing for judicial supremacy where a Supreme Court judgment rules against the government or legislative measures are taken to bypass, amend, or correct a decision handed down by said court. This can be clearly seen by the responses to the Rwanda policy amongst civil society, commentators in the media, and politicians. For example, third sector organisations unequivocally called for the government to abandon and draw a line under the measure following the Supreme Court judgment. Along similar lines, others have criticised the Safety of Rwanda Bill for ‘disapplying’ aspects of the HRA 1998 and ‘disabling the courts’. Amongst media coverage, reporters have framed the Supreme Court decision as dismissing government policy and the government’s response as one which ‘brushes the historic role of our country’s courts aside’. Similarly, amongst politicians, legislating against the Supreme Court has been described as ‘an affront to democracy’ and Members of Parliament have expressed concern about ‘the possibility that by effectively reversing through statute a Supreme Court judgment on the facts, the Bill could undermine the constitutional role of the judiciary?’. Of course, whilst these responses are not a complete picture, they do provide a snapshot of the feelings of judicial supremacy New Labour intended to and have successfully fostered. The result of which significantly obstructs an elected government’s policy or legislative agenda.
Conclusion
This post has attempted to use the political thought of New Labour and, more specifically, Lord Irvine to outline how their rights-based reforms have placed significant constraints on majority governments in Parliament. Indeed, through the culture of rights-compatibility and feelings of judicial supremacy, we are still stuck in the stranglehold of those reforms.
I would like to extend gratitude to Dr Richard Johnson and UKCLA editors, Dr Se-shauna Wheatle and Dr Paul Scott, for their extremely helpful feedback on previous drafts. Any errors in this post are my own.
Sanjit Nagi, PhD Researcher at SOAS University of London
(Suggested citation: S. Nagi, ‘The Stranglehold of New Labour and Lord Irvine’s Rights-based Constitution’, U.K. Const. L. Blog (15th January 2024) (available at https://ukconstitutionallaw.org/))
