Faced with the prospect of the UK’s departure from the EU, some Britons are contemplating urgent measures, whether applying for an Irish passport or migrating to New Zealand. Nothing wrong with either, of course, but the latter is an odd reaction. After all, one of the implications of Brexit is that it restores the fundamental similarity between the structure of government in the UK and New Zealand, the last two bastions of the Westminster constitution. In both countries, parliamentary sovereignty is fundamental and judges do not reign supreme. EU membership has long complicated this picture, with the UK subject to binding European law, enforced by the confident and inscrutable – not to mention largely unaccountable – Court of Justice.
Whatever consequences Brexit may have for economic growth and trade policy, the constitutional restoration it helps bring about should not be a concern. The UK knows how to exercise self-government by way of parliamentary democracy without European judicial review. And if it has forgotten, then the example of New Zealand (and in different ways Australia) should at least confirm that it can be done.
It is astonishing that this is at all controversial. And yet, ever since the referendum, the great and the good have fretted that withdrawal from the EU means constitutional regression, an abandonment of the rule of law, and, especially, a bonfire of human rights. In December, the Joint Committee on Human Rights (JCHR) inquired into the significance of Brexit for the protection of human rights in the UK; this seemed to suggest that extrication from European law and expansion of Parliament’s lawmaking freedom, put rights in jeopardy.
Self-government may involve risk, but lawmaking in a mature parliamentary democracy is not something to be feared. The JCHR’s alarmism revealed a sense of learned helplessness, a lack of confidence in the institutions that make democracy possible. One saw something similar in the bizarre campaign waged by the shadow Brexit secretary Keir Starmer, with a brief supporting role from Dominic Grieve, to retain the EU Charter of Fundamental Rights after Brexit. Scepticism about the Charter was once shared across Parliament – indeed it was Government policy – with parliamentarians recognising that the Charter was unclear and open-ended, and risked a massive transfer of power to judges. Strange then that in the course of enacting the EU (Withdrawal) Act lat year, some MPs spoke of the Charter as if it had somehow become an essential guarantor of human rights. The same curious perspective came to the fore in the House of Lords in late 2017 about the Data Protection Bill, with some peers attempting to amend the bill to include the Charter’s vague right to data privacy. This was resisted, with other peers insisting that the bill itself specified this right and that subjecting the detailed provisions of the bill to the Charter right would be sabotage.
These episodes disclose a misleading understanding of human rights and of how they are best protected, an understanding that unfortunately has deep roots in legal thinking around the world. This view of rights is drawn out and dressed down in a new book, Legislated Rights: Securing Human Rights through Legislation, jointly written by six scholars, one of whom is me. The point of human rights, the book argues, is not to call legislation into question. On the contrary, legislatures have primary responsibility for specifying human rights and giving them legal force and content. The under-specified propositions that make up bills of rights or charters of rights are incomplete: it is legislation that is required to set out what our rights truly are and thus what justice demands.
Interestingly, some senior judges share these concerns. In a symposium on the book, published today by Policy Exchange’s Judicial Power Project, four leading common law jurists reflect on the relationship between legislation and human rights. Beverley McLachlin, Chief Justice of Canada until 2017, notes the theoretical difficulty of ruling, as courts often do, that someone has a right and that the state is nonetheless justified in infringing (violating) that right. Dyson Heydon, formerly a justice of the High Court of Australia, commends “the great virtue of legislative technique”, which is able to give specific form to otherwise vague and malleable rights. Sir Ross Cranston, former High Court judge in England and Wales, Labour MP, and Solicitor-General, notes legislation’s capacity to promote the common good, including the interests of minorities.
For chief justice Glenn Joyal, from Manitoba (a Canadian province), legal thinking has too often overlooked the contribution that legislatures make to rights protection – judges should take seriously a more realistic, positive view of legislation and of legislatures and their capacities. This chain of reasoning may reframe rights adjudication. The book was relied on last month by two judges in the supreme court of Canada, dissenting from the majority’s decision to strike down legislation specifying the right of non-resident citizens to vote in federal elections. And in the UK, in the last year or so, courts have rightly dismissed challenges to the Suicide Act, recognising that it is Parliament’s responsibility to consider autonomy, compassion, protection for the vulnerable and the sanctity of life.
Still much public discussion about human rights law centres on a caricature of legislation, in which the legislature is framed as the vehicle of majority tyranny. Hence the fear that lifting the strictures of EU law puts rights in peril. But legislatures are well-placed to specify rights and constitutional law goes wrong when it assumes the contrary. In the UK, as in New Zealand, it is a mistake to take parliamentary sovereignty to be the antithesis of human rights. After Brexit, human rights in Britain will be protected as they should be, first and foremost by legislation enacted by a sovereign Parliament, which deliberates carefully in conversation with the people it represents.
Professor Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Associate Professor of Law, University of Oxford