Human Rights and the Dream of Liberal Legalism

Politicisating the judiciary; judicialising politics

[C]ourts cannot act as primary decision-makers, and principles of institutional competence and respect indicate that they must attach appropriate weight to informed legislative choices…But…when all relevant interests fall to be evaluated, the domestic court may have an especially significant role.

-Lord Mance, in Re Recovery of Medical Costs for Asbestos Disease (Wales) Bill [2015] UKSC 3

Tony Blair and Gordon Brown were the last two consequential Prime Ministers of the United Kingdom. They understood what they wanted to achieve and had a strategy to implement it. Since Brown left office, it has all been a strange combination of bland technocracy and crisis management. The image which comes to mind when trying to think of a suitable metaphor for government since 2010 is that of a bank manager continually having to try to stomp out a series of fires in his office rubbish bin - and gradually growing more sweaty, puce-faced and bedraggled as a result. Blair and Brown were different: they each had their eye on the future, and they made big, long-lasting changes to the UK constitution accordingly.

The most significant feature of the New Labour constitutional realignment was the enactment of the Human Rights Act 1998 (HRA). The HRA is the biggest of conservative commentariat bugbears, given a run for its money only by the Equality Act 2010 (itself best thought of as an extended riff on chords which the HRA first struck). But it is surprising how few of its opponents take the time to analyse, and describe, what exactly it does and why. This has resulted in a failure amongst conservatives to think through human rights reform strategically (although Dominic Raab, former Secretary of State for Justice, gave it a decent shot; more on him, perhaps, in future posts). Here, I submit for your amusement my own thoughts on the matter.

The HRA is best understood as the crowning achievement of what John Gray once called the dream of liberal legalism. It is striking how many New Labour high-ups - Jack Straw, Stephen Byers, Geoff Hoon, Harriet Harman - were former lawyers, but even more striking that both Tony Blair and his wife, Cherie Booth, were barristers. These were all people who would have gone to university in the 1960s and 1970s and imbibed the notion - then coming to prevalence in law schools on both sides of the Atlantic - that the job of lawyers, and indeed law itself, was not to provide and apply a mere framework of rules, but to give effect to and promote certain values. Law, they would have been told - largely implicitly - was the way to enshrine progressive ideals as being beyond politics, and therefore beyond opposition or democratic challenge. And it followed that as soon as Blair’s government came to power, it was going to put this vision of law into effect: it was, so to speak, going to constitutionalise New Labour’s ‘century of progressive politics’ and transform both law and politics in the UK for good.

The HRA, then, at heart represents a judicialisation of politics. It seeks to transfer political decision-making away from democratic processes and into the courts, where it will be unsullied by whatever grubby, atavistic views exist amongst the electorate. And it is very important to be clear about this, because ever since the time it was enacted people have been describing the Act, misleadingly, as simply a way to incorporate the rights contained in the European Convention on Human Rights (ECHR), originally ratified in 1951, into UK law. The UK, being what is called a ‘dualist’ state, must pass an Act of Parliament in order to give effect to an international treaty in domestic law, and this, it is commonly thought, is what the HRA was chiefly for. It just, ‘at long last’, some 47 years after the fact, made the rights contained in the ECHR enforceable in UK law, by UK courts.

But the Act does not in fact do this (although legal academics and lawyers - I am myself guilty - sometimes say as much in shorthand when describing what the HRA is for). Rather, it creates within UK law a set of parallel ‘Convention Rights’ to those that exist in the ECHR - expressed in the same terms, but not on the basis of a simple legal transplant. They are freestanding from the Convention, and on that basis best thought of as entirely ‘new domestic rights’ (as Lord Hoffman described them in Re McKerr [2004] UKHL 12). The aim was not to just make the rights contained in the ECHR enforceable in UK courts, in other words; it was to create an ‘indigenous’ human rights jurisprudence that is in many important respects quite separate to the jurisprudence of the European Court of Human Rights (ECtHR) in Strasbourg.

Why is making this point, which may seem somewhat arcane, important? It is to emphasise that the HRA has to be understood as a primarily internal phenomenon. It did not provide a means by which the ECtHR could dictate legal arrangements in the UK. It rather provided a means by which the UK’s judiciary could dictate political and social arrangements within the jurisdiction. They would, of course, do this through ‘taking account’ of the jurisprudence of the Strasbourg court (they are required to do this by s. 2 (1) of the Act). But ‘taking account’ of something is not the same thing as being bound by it, and UK judges have ever since the HRA’s enactment understood that their role as rather to develop a distinctive and independent body of precedent which is best described as ‘UK human rights law’.

The ECtHR’s jurisprudence, they therefore say, is not to be treated as a ‘straitjacket’ (Lord Hope in Re P (A Child) (Adoption: Unmarried Couples) [2008] UKHL 38); that would be ‘inappropriate’ (Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45); and in any case there will be many occasions in which UK courts will indeed wish to ‘go further’ than the court in Strasbourg (Lord Neuberger again, in Moohan, Petitioner [2014] UKSC 67). The idea is not, to repeat, to merely make the ECHR enforceable in UK courts and to make UK courts follow decisions of the ECtHR. It is to give license to UK judges (in the words of the Court of Appeal in Aston Cantlow v Wallbank [2001] EWCA Civ 713) to ‘draw out the broad principles which animate the Convention’ and apply them in our law. This is code, I think it will be obvious, for UK judges deciding for themselves what the ECHR really means when applied to any given set of facts, based on their own reading of what ‘the principles which animate the Convention’ really are.

A rule of thumb: as soon as you give judges the green light to think of themselves as giving effect to ‘principle’, you will find yourself no longer to be in the world of the application of legal rules, and to have slipped into an altogether different reality - judicial policy-making. A court which is holding itself to be giving effect to ‘principles’ is one that does not particularly feel itself to be bound by either precedent or even the clear wording of legislation. Instead, it is free to more or less decide whatever it wants as long as it has a plausible basis for attributing its decision to ‘principle’.

Every critic of the direction in which UK human rights jurisprudence has gone has a favourite example of this phenomenon in action, but mine is R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (Tigere).

Ms Tigere was a national of Zambia, born in 1995, who arrived legally in the UK in 2001 with her parents but who then (with her mother) stayed on illegally after her visa had expired in 2003. She remained in the country until at least 2015 (I assume she is here still), going through school and eventually getting to the position of being able to apply for a place at university. She also, like almost everybody in her position, applied for a student loan from Student Finance England - the trading name of the Student Loans Company, the state-funded finance company for students in England. And this is where the story really begins: on making her application for a loan, she discovered that she was not in fact eligible for one.

This was because - unbeknownst to her - her mother ‘had taken no steps to regularise [her] immigration status’ when her visa had expired in 2003. She therefore fell foul of two requirements to get a student loan: having been lawfully ordinarily resident in the UK for the three years before applying (the ‘residency requirement’) and being ‘settled in the UK’ (the ‘settlement requirement’). She did not meet the settlement requirement because this was taken to mean being a UK national or having been granted Indefinite Leave to Remain. And she did not meet the residency requirement because she had not been lawfully ordinarily resident in the UK for the three years before applying.

One obviously feels sorry for Ms Tigere, who could perfectly justifiably complain that nothing about her status was her own doing. But it is important to make one thing clear out of the gate: it was neither the case that she would be deported, nor that she would ultimately be denied the opportunity to attend university. She and her mother had been granted Discretionary Leave to Remain in 2012 after having been granted temporary leave in 2010, and this was extended in 2015 to last until 2018, at which point she would have been eligible to apply (and would without doubt have been granted) Indefinite Leave to Remain. At this point she would have met both the residency and settlement requirements to get a student loan and would, at the age of 23, have been able to go to university as a (not very old) mature student. Slightly disingenuously, this fact appears only towards the very end of the judgment of Lady Hale, who gave the lead judgment, and who (spoiler alert) found in Ms Tigere’s favour; one gets the impression from the opening pages that Ms Tigere was being denied the opportunity to attend university forever. This was not so.

But, in any event, Ms Tigere duly brought a claim against the Secretary of State for Business, Innovation and Skills, who was responsible for having made the relevant regulations about applying for student loans. To simplify, the argument was that the residency requirement and settlement requirement were discriminatory restrictions on the right to education, and therefore violations of Ms Tigere’s rights under article 14 of the ECHR (non-discrimination) and article 2 of Additional Protocol 1 to the ECHR (the right to education). The crux of the matter is easily stated: the right to education does not mean that everybody is entitled to ‘an education’ as such, but that they are not to be denied access where educational institutions exist. And in particular they are not to be denied access in a discriminatory way. Since immigration status has long been held to be a ground on which somebody might be unlawfully discriminated against (we’ll leave that can of worms for another day), Ms Tigere’s claim was that she was being denied access to higher education on the discriminatory basis that she was not lawfully resident or settled, and therefore could not apply for a loan which would fund her studies.

The majority found in her favour. And its decision was reached in an illuminating way, in that it was essentially entirely founded in policy. Citing the ECHR’s decision in Ponomaryov v Bulgaria (2011) approvingly, Lady Hale noted that education ‘is a very particular type of public service’ which ‘serves broader societal functions’. It plays a ‘fundamental role’ in a democratic society and is itself ‘indispensable to the furtherance of human rights’. And while the court had to ‘treat the judgments of the Secretary of State, as primary decision-maker, with appropriate respect’, as the matter concerned ‘the distribution of finite resources at some cost to the taxpayer’, there was ‘no evidence that the Secretary of State addressed his mind to the educational rights of [people, like Ms Tigere, who were unwittingly unlawfully resident and thus ineligible for student loans, thought to be about 2,400 in number at the time] when making [the relevant] regulations’.

With that framing, Lady Hale then applied what she called the ‘test for justification’ to decide whether discrimination against Ms Tigere through the residency requirement and settlement requirement was justified. Basically, unless a right is absolute, it is ‘qualified’, which UK courts have decided means that it can be restricted if the measure in question: (i) has a legitimate aim; (ii) has a rational connection to that aim; (iii) was the least intrusive measure available; and (iv) strikes a fair balance between the rights of the individual and the interests of the community. (This is what English lawyers mean by ‘proportionality’ in the context of human rights, following a line of cases beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, and ending with Bank Mellat v HM Treasury (No 2) [2013] UKSC 39).)

In Lady Hale’s view, the first step in the test for justification was satisfied by both the settlement and residency requirements: it made sense for the Secretary of State to only want student loans to be made available to people who would be likely to remain in the UK after graduating and make a ‘significant economic contribution’. It was therefore legitimate to ‘target resources’ to students who had some sort of long-term connection to the country. But the settlement requirement was not rationally connected to that aim; Ms Tigere and people in her position were ‘just as likely to stay’ in Lady Hale’s view and contribute to the economy (and repay their loans) as people who were properly settled. Moreover, Ms Tigere was ‘just as closely connected with and integrated into UK society as her settled peers’. All of the incentives - including the fact that ‘graduate wages in the UK labour market are large’, would point towards Ms Tigere remaining in the country long-term if she was able to get a student loan and go to university.

And setting all that aside, the settlement requirement was a ‘bright-line’ or ‘blanket’ rule that did not allow for the application of discretion where needed. It was a ‘good rule of thumb’ for identifying elegibility for student loans, but it operated harshly against people in Ms Tigere’s position. It therefore was not the ‘least intrusive’ measure available. It would have been less intrusive to create discretion for exceptional cases, and this would not be ‘administratively impracticable’. And, finally, regarding the fourth step, a fair balance was not being struck between the rights of Ms Tigere and people in her position and those of the community. The impact of a delay in starting university until the age of, effectively, 23, was ‘very severe’, and it would, if applied in the round to people in Ms Tigere’s position, result in a delay to such people entering the graduate workforce and delivering the associated benefits to the economy. For all of these reasons, the settlement requirement was not justifiable, and was incompatible with Ms Tigere’s rights (although, cursorily, Lady Hale concluded that the residency requirement was compatible). The result was that a declaration was granted to the effect that she was entitled to a student loan and that the Secretary of State had to go away and come up with a ‘more carefully tailored criterion’ that would create space to exercise the necessary discretion in exceptional cases.

This is not, as I hope you will immediately see, the application of legal rules to resolve a dispute. The rules in this instance were perfectly clear (and indeed the case should really never have been litigated in the first place); nothing about the settlement or residency requirements was ambiguous. And they had been created in the proper way by a government minister acting intra vires, responsible to Parliament, and ultimately accountable thereby to the electorate. Lady Hale’s judgment (she spoke for Lord Kerr, and Lord Hughes applied similar reasoning) if anything is to be understood as, instead, the application of policy. Higher education, she made clear, was in her view a good thing - good for democracy, but also good for the economy. And it was therefore, presumptively, good policy to try to get as many people into university as possible if they had the ability - even if they did not have the required settlement status. Never mind that a government minister, accountable to Parliament and acting on the basis of powers granted by legislation enacted by Parliament, thought otherwise and had good reason for it (chiefly to do with having an efficient approvals process that would achieve value for money, which would clearly be impossible if Student Finance England had to vet 1.5 million applications a year to check whether they were ‘exceptional cases’). He had failed to ‘address his mind’ to the right issues. The rational way to behave would have been to require Student Finance England to exercise discretion in exceptional cases and allow people like Ms Tigere to get student loans - it was, in the end, as simple as that.

Lord Sumption and Lord Reed gave an interesting and cogent joint dissenting judgment in Tigere, which it is worth reading in its entirety. But it is summarised nicely in its closing paragraph:

In a case where a range of rational and proportionate policy options is open to the decision-maker, the decision which provides the best allocation of scarce resources is a question of social and economy evaluation. These are matters of political and administrative judgment, which the law leaves to those who are answerable to Parliament. They are not questions for a court of law.

The HRA, though, and the way that it has been interpreted by the judicary, provides precisely the means through which to transform those questions into what are indeed those for a court of law. The important point, of course, is that this does not make them any less matters of ‘political and administrative judgment’. Where to draw the line between people who are eligible for student loans and people who are not, and whether the application should be hard and fast in all cases or subject to discretion, are obviously political decisions. Tigere, in transplanting those decisions into the minds of the judges in the Supreme Court, did not render them apolitical; it rather politicised a judicial process or, if you prefer, judicialised a political one. That is, indeed, what the HRA is really for; and that is the dream of liberal legalism in action - evident almost whenever the courts these days issue a ruling that concerns any of the Convention rights.

The public should be outraged about this sort of thing. In the end, it doesn’t really matter in the grand scheme of things whether Ms Tigere got to go to university in 2015 or 2018, or whether the 2,400 other people in her position got to go to university either. What matters is that it is not the job of people like Lady Hale, Lord Kerr, or, for that matter, Lord Sumption, to make the decision. This is not merely because they are inadequately informed (the reasoning on the value of higher education on display in the judgments in Tigere is almost embarrassingly inept), but because they are not accountable to the electorate. Ordinary people, though, rely on journalists, politicians, lawyers and academics to make them aware of what is happening and explain it in layperson’s terms, and this self-evidently is not really happening.

More importantly, conservative politicians - who don’t have the same excuse - should be outraged too, and should be thinking carefully and strategically how they go about remedying the problem. Bleating about ‘the Strasbourg court’ and fighting tactical battles over things like votes for prisoners or the Rwanda scheme is not the approach to take; the task has to be handled with seriousness and with an eye on the long term. (It also has to take account of the perfectly reasonable concerns of people in Northern Ireland, just as much citizens of the UK as the rest of us, for whom the HRA has additional constitutional significance, being entwined with the Good Friday peace agreement.) Emblematic of failure in this regard was the absurd defenestration of Dominic Raab and the abandonment of his, in many respects sensible, proposals for reform subsequently. But, to come back to our initial starting point, this is really the rub: whether one likes or loathes what New Labour achieved, the fact of the matter is that they were very intelligent and capable people, who knew what they wanted to do, spent a long time thinking deeply about it, and had their minds set on carrying it out. That kind of politician seems very thin on the ground these days - an observation that is as regrettable as it is trite.