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Lord Lester's 'Five Ideas to Fight For' - And How Brexit Changes Them

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About The Author

Emily Scanlon (Guest Contributor)

Emily is a History graduate from Balliol College, Oxford and an aspiring solicitor. She has a particular academic interest in civil rights and law and order, and last year completed her thesis on pre-Troubles experiences of Northern Irish society and politics among veteran civil rights activists. She is an International Citizen Service Volunteer, currently fundraising for VSO development projects and training for a volunteering placement in rural Cambodia. Her hobbies include running with her local running club and suspecting all the wrong people in TV murder mysteries.

Human rights are not the gift of politicians and bureaucrats. They are our birthright – part of our common humanity

Lord Anthony Lester QC

Last year, before the result of the EU referendum, Lord Anthony Lester QC published a book. Informed by his time as a barrister and a politician, Five Ideas to Fight For examines the history and current status of Human Rights, Equality, Free Speech, Privacy and the Rule of Law.

Lester’s career has been dedicated to the pursuit of these ideals. He was called to the Bar in the early Sixties, at a time when the practice of both Human Rights Law and Public Law in the United Kingdom was virtually unheard of. In Alam and Khan v UK [1966] – shortly after the Harold Wilson government permitted cases against the UK to be taken to the European Court of Human Rights (ECthR) in Strasbourg – he successfully brought the first British case on behalf of a Pakistani millworker from Bradford. He was instrumental in securing the enactment of the Sex Discrimination Act 1975, Race Relations Act 1976, the Human Rights Act 1998, the Equality Act 2010 and the Defamation Act 2013.

And, aged 80, he is still fighting. On the 1st March 2017, I attended an interview with Lester conducted by legal commentator Joshua Rozenberg QC; Lester arrived directly from the House of Lords, where he had just voted in favour of an amendment to the Brexit bill safeguarding the rights of EU citizens.

‘Five Ideas to Fight For’ tracks the legal and political developments relevant to Human Rights, Equality, Free Speech, Privacy and the Rule of Law over the past fifty years. It examines the theoretical and practical dilemmas these ideals pose, and how they are under threat from ‘not only terrorists but also the state and its agents and populist politicians.’ It is a personal memoir, lawyer’s casebook, national history and political manifesto rolled into one. Perhaps most strikingly, Lester succeeds in making it simultaneously comprehensive and widely accessible – and, given it functions as a call to arms for a new generation of liberal campaigners within and outside the legal profession, necessarily so.  

Yet Brexit has profound implications for the arena in which this ‘fight for rights’ is to take place. In triggering a constitutional climacteric, the democratic mandate to leave the European Union not only shrouds current protection of these rights in uncertainty, but also creates new threats and new opportunities for their application.

Rather perversely, the build-up to the referendum last June paid sparse and sideline attention to how quitting the EU would impact the rights of UK citizens. Obligations rather than rights tended to steal the show, and there was limited discussion of the practicalities of a ‘Leave’ result. The narrow parameters of the conversation surrounding Brexit meant most voters were unaware of its full implications – somewhat undermining the legitimacy of the referendum itself, as human rights lawyer Katie Boyle posited last April.

Nevertheless, it is not the aim of this article to question the referendum result; rather, it aims to reflect on what it means for the practice of and fight for Human Rights, Equality, Free Speech, Privacy and the Rule of Law in the UK.

What Do These ‘Five Ideas’ Mean?

Lester’s ‘Five Ideas’ are complex in theory and messy in practice – and this makes them vulnerable. It is beyond the remit of this article to give them the explanations they deserve, but a few points shall be clarified.

Human Rights, Equality, Free Speech, Privacy and the Rule of Law overlap and are interdependent, yet they elude a consensus hierarchy of greater and lesser importance. For example, Lord Nicholls in Campbell v MGN Ltd. [2004] articulated the tension between Free Speech and Privacy:

Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state.

They are organic concepts, unfixed and in constant evolution. Equality, for example, is difficult to standardise in practice. It can be defined as every difference in treatment having a good and relevant reason, but what constitutes sufficiently ‘different’, ‘good’ or ‘relevant’ is challenging to articulate in law. Their application faces practical as well as theoretical challenges. Even if violations of rights can be identified in straightforward terms, tangible remedies can prove impractical. Violations of privacy, for example, are difficult to reverse in cases of privileged information already made public.

They are ideals and are, in some respects, necessarily unachievable. The Rule of Law encompasses values rarely given full effect: an independent judiciary and legal profession; justice for all who seek it; the openness and accessibility of all laws; and a free press.This is not to imply that these ‘Five Ideas’ are at odds with reality. Lester’s book showcases how, via the courts and Parliament, tangible progress in these areas was possible – though at times slow and by no means uniform. It is as much a reflection of how our system works as it is of how it does not.

How Are These ‘Five Ideas’ Currently Protected?

As Lester observes, the British legal and political system is a peculiar one. The UK is the only European country, and almost the only common law country, with no written constitution and no enforceable Bill of Rights. This does not mean the UK does not have a constitution. Its ‘unwritten’ constitution derives itself from a myriad of sources, primarily statute (laws or ‘Acts’ passed by Parliament) and common law (judgments on individual cases that form legal precedent.) International treaties and custom play their part too.  

Britain is currently party to two distinct European systems: the Council of Europe and the European Union (EU). It is the latter that the British people voted to leave on the 23rd June 2016 – although there have been calls (including from Prime Minister Theresa May, a historic critic) for Britain to withdraw from the Council of Europe and its Convention on Human Rights too.

The EU binds its 28 member states to a Charter of Fundamental Rights and enforces these rights, and the rest of EU Law, via the Court of Justice of the European Union (CJEU) in Luxemburg. The Council of Europe, meanwhile, binds its 47 member states to a separate European Convention on Human Rights (ECHR), with its own supranational court, the ECtHR, situated in Strasbourg.

The Human Rights Act 1998 (HRA 1998) is the result of a decades-long struggle by Lester to integrate ECHR rights into domestic law. Since the 17th century, the ‘absolute sovereignty of Parliament’ to legislate on any subject-matter and for this legislation to have immunity from the courts has been Britain’s guiding constitutional principle. When the Council of Europe was formed in 1949, Britain ratified the ECHR (which its own politicians and lawyers helped write) under the condition that the UK would not allow individuals to take a case against the state to Strasbourg. This wholly undermined the Council’s founding initiative, spurred by events of the Second World War, to protect individual rights from abuses of the state. It meant that the Convention had ‘no practical value to its victims in the UK.’ Successive governments continued to deny the right to petition, until it was granted by the Wilson administration in January 1966.

This was revolutionary. British individuals could now seek redress for violations of their ECHR rights by Parliament and the courts. Lester successfully argued the first British case at the ECtHR, Alam and Khan v UK [1966], in which a Pakistani millworker’s young son had been refused permission to join him in the UK. The court ruled in their favour, and the government not only permitted the boy to join his father, but also introduced the first immigration appeal system under the Immigration Appeals Act 1969.

Throughout his book, Lester explores countless other cases where the ECHR was vital in providing protection for rights before they were recognised by UK Law, and in ‘exposing abuses that would otherwise have been condoned or covered up’. Such cases include Malone v UK [1991], Chahal v UK [1997], Darnell v UK [1994], and Sunday Times v UK [1979].

Yet protection of individual rights from the state was still limited. Crucially, individuals had to rely on remedies outside of the courts. In 1968, Lester first suggested in a public lecture that Convention rights be given direct expression in UK Law. It took thirty years of fighting against traditional hardliners of Parliamentary 
sovereignty to see that happen.

Section 6(1) of the HRA 1998 requires British courts to not act in a way that is ‘incompatible’ with the Convention. It meant Acts of Parliament, Ministers and public authorities can be held to account in British courts. It has also spurred development in areas of UK Law that were inadequate, such as Privacy Law (as examined by Connor Griffith in his KCTL’s article entitled
‘Slipping Off the Mask: The Failure to Protect Our Right To Privacy’).

Nevertheless, the ECtHR was, and still is, careful not to subvert national authority. In particular, when it finds a violation it defers responsibility for giving effect to its ruling to the state in question. This relies on the benevolence of a government to comply with those rulings. The UK may not be the worst offender, but it is certainly guilty of undermining Convention rights. Most shockingly, the British government has for years defied binding judgments, such as that of Hirst v UK [2005], that at least some convicted prisoners be given the right to vote in Parliamentary elections. A bill has been drafted, the government has repeatedly blocked it, and to this day no bill has been presented to Parliament. As Lester laments, this sets a shameful example for Human Rights protection. Indeed, perhaps encouraged by the British example, the Russians passed a federal law in December 2015 empowering its Constitutional Court to refuse application of international tribunals.

Membership of the EU has also had a profound impact on British legal rights – despite the UK being, as Lester describes, ‘a semi-detached and grumpy member punching below its weight and size.’ The European Communities Act 1972
(ECA 1972) legislated Britain’s accession to the European Communities. This entailed incorporating EU Law into domestic law. As the community increasingly expanded its remit from economic union to encompass “social progress and…the constant improvement of the living and working conditions of their peoples” – see Defrenne v Sabena [1976] – its impact on the UK’s approach to rights became pronounced.

This has by no means been a neat process.
 The ‘supremacy’ principle of EU law – that it takes precedence over national law – means the means of protecting a number of British rights, including and extending beyond Lester’s ‘Five Ideas’, derive themselves from EU law and judgments. This was one of the features of EU membership objected to by ‘Leave’ campaigners in the referendum; that the ‘supremacy’ principle subverted the ancient notion of Parliamentary sovereignty, as seen in R v Secretary of State for Transport, ex parte Factortame [1990].

What Does Brexit Mean for These ‘Five Ideas’?

Theresa May has announced that the Government will trigger Article 50, the legal process that will initiate Britain’s withdrawal from the EU, by the end of this month. It is unclear what precisely the divorce negotiations will bring. Her government has promised a ‘Great Repeal Bill’ to smooth the transition. If passed in Parliament, it will take effect when Britain exits the EU, repealing the ECA 1972, but ensuring legislation formerly under force by EU law is restated in UK law.

In essence, the idea is to maintain all legislation so that former EU laws can be repealed gradually and selectively. But this still leaves a great deal of uncertainty regarding ‘rights’ post-Brexit, as a report by the
Joint Committee on Human Rights stresses, ‘The Great Repeal Bill’ may safeguard existing rights initially, but, as a nation without a written constitution detailing fundamental rights and values, there is little to stop future governments repealing laws that have a profound impact on individual rights. It is also unclear what the government intends to use as ‘bargaining’ points during negotiations to leave.

Abuse of executive powers is of high concern during the Brexit process. The referendum last June provided the government with a democratic mandate to leave the EU; it did not, however, give the government a mandate for the ‘how’ as well as the ‘should.’ Several high-profile legal challenges to the government’s executive-minded and unconstitutional handling of Brexit have been raised, most notably R (Miller) v Secretary of State for Exiting the European Union [2017]
, which ruled a Parliamentary vote necessary to trigger Article 50. On the 1st March 2017, the House of Lords passed an amendment to the government’s Brexit bill safeguarding the rights of EU citizens. On the 7th March, the Lords passed a further amendment requiring government give Members of Parliament a ‘meaningful vote’ on the final Brexit deal before withdrawal from the EU. These were overturned in the House of Commons on the 13th March, and on the same day, peers voted to pass the Bill unamended. It received Royal Assent on the 16th March.

Headline upon headline accused the ‘undemocratic’ House of Lords of frustrating Brexit and undermining the ‘people’s will.’ The Supreme Court and High Court judges suffered similar treatment from the tabloids during the Miller case. But it is crucial that the immensity of Brexit does not over-inflate the executive’s legislative power – particularly as British individual rights are so flimsily protected in periods of change by our fragile constitution.

Leaving the EU may for now shelve calls to quit the ECHR. Yet, even with the HRA 1998, the Convention still falls short of adequate protection in the UK. Because it sources rights from an international treaty, it is more vulnerable than it would be if it had domestic integrity. It suffers frequent anti-European attack from the press and politicians, who depict the Act as a ‘farce’ and deplore the rulings of a foreign court. Even Lester, one of its main architects, recognises this:

[The Act] asked the wrong question. The wrong question is ‘have my convention rights been violated’, because it immediately makes one look to an international treaty for an answer. The right question is ‘have my constitutional rights been violated.’ Although that might sound like playing with words, it makes a difference, because ordinary people are alienated if they have to go to a European treaty for their rights rather than to a domestic instrument.

Rights enforced by a supranational body can be all-too-easy for a government to ignore – as seen in prisoner voting rights – and all-too-vulnerable to expedient criticism by populist politicians and the press. Fundamentally, they lack public confidence and ownership. 

After his interview last week, I asked Lester whether he thought Britain was ready for a written constitution. He replied straightforwardly ‘yes, but it will take some time.’ Many nations established their written constitutions and fundamental rights during periods of revolution. Brexit may not constitute a ‘revolution’ in the traditional sense, but it is placing our current system under great strain. It signals a colossal shake-up to our complex legal framework and further undermines the unity of the United Kingdom. In many respects, it appears we are approaching a constitutional crossroads.

Yet, though attractive in an ideal world, a Bill of Rights would not necessarily offer better protection. Prior to the referendum, the current government proposed several times to withdraw from the Convention, tear up the HRA 1998, and replace it with a British Bill of Rights and Responsibilities – still reportedly part of the Conservative agenda under Theresa May. This has more or less been justified on the basis of restoring Parliamentary sovereignty, signifying the potential danger of a Bill of Rights; that it would be used to deprive victims of the right to seek redress in external courts, reversing the steps taken to protect individuals from the state.

The move to isolation signified by Brexit exacerbates this risk. As Lester asserts, ‘any proposal for a homegrown British Bill of Rights must give a convincing answer to this question: would it weaken or strengthen existing protection?’ It seems to me that Conservative proposals so far, fixated on placating an anti-European, anti-foreigner Right, are far more concerned with strengthening political power and autonomy than Human Rights protection.

Conclusion – The Fight Ahead

Brexit has put our current system under the spotlight, and, in terms of protection of Lester’s ‘Five Ideas’, I would argue that system is found wanting. Human Rights, Equality, Free Speech, Privacy and the Rule of Law are meaningless in a society where they are not widely understood or shared. Yet the nature of British constitutionalism, which does not allow the entrenching of fundamental rights, makes achieving this particularly difficult. Our ‘unwritten’ constitution may be highly nuanced, but it is, above all, inaccessible. Citizens should not have to have a law degree to understand what their rights are and how they are protected. They should also feel that those rights are secure, and a part of, not imposed on, their society.

There are, of course, no easy solutions. But in the turbulent and critical years to follow, change promises and threatens. Political engagement rather than deference to those we empower will be necessary to ensure Lester’s ‘Five Ideas’ are safeguarded in the process. As he concludes, ‘there is much to defend, and fortify and undo – and so much need for your active involvement in the pursuit of justice. Now over to you.’

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Tagged: Administrative Law, Brexit, Constitution, Equality, European Union, Human Rights, Justice, Public Law, Review, Rule of Law

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