It was probably predictable that at some point the public and political debate about this bill, and the proposed extension of pre-charge detention of terror suspects to a potential maximum of 42 days, would be diverted away from the merits into a discussion of whether the provisions comply with Convention rights. That’s happened now, as the Commission for Equality and Human Rights has threatened legal action if the bill is passed. Interestingly it’s merely said on its own website that it’ll consider taking legal action; some of the quality press is reporting that they definitely will go to court.
Anyone who reads this blog will know I oppose the government’s proposals; but I’m also opposed to bogus arguments on either side, and have to say I deplore this intervention by Trevor Phillips. It’s clearly an attempt to influence Parliament’s key vote on Wednesday at third reading, and not by means of pure persuasion (I had no problem with Shami Chakrabarti’s lobbying MPs, even though I think some of her arguments have been misleading) but by making portentous technical legal threats. I really don’t think a publicly-funded body should be doing this sort of thing. They should shut up now, and launch a legal challenge later if they want to; but to huff and puff about about it now as a lobbying tactic is something else, especially when they may not be committed to doing it. They may think better.
Because in my view, the CEHR’s view has little to it. There isn’t Strasbourg case law requiring a charge to be laid at any particular time – a suspect must simply be informed “promptly” of the case against him – and I suspect Rabinder Singh’s and Aileen McColgan’s advice of the kind of wishful thinking that often turns lawyers’ opposition to the merits of a proposal into a misguided conclusion that it’s unlawful.
Here’s the advice. I’ll let you know what I think of it when I’ve had a good look at it later today.
In the meantime, Jacqui Smith is fighting back, saying she’s written to Trevor Phillips to set him straight. I can’t link you to that letter yet, but nowadays the government includes in the explanatory notes it publishes with any bill its own views on human rights compatibility: they’re here, from paragraph 269. Not a very clear or ringing defence, but then these notes tend to be quite dull. I think they’re right, though.
MPs should vote on the merits of the bill; not be swayed by the threats of lawyers and lobbyists.
Set a non-lawyer right on this one. If the 42 days bill is passed in to law, it can, if necessary, be said to have repealed the HRA by implication.
My understanding is that one judge has said that constitutional acts like the HRA can’t be repealed by implication, but that this is not widely accepted in the judiciary.
Is this right, and if so, where is the possibility of legal challenge?
No, it all works more harmoniously than that, Bishop. One of the big mistakes people make when approaching the HRA is to think it bans, outlaws or prevents Parliament from legislating in breach of human rights. It emphatically doesn’t. In fact, it is designed to permit Parliament to do exactly that: in the white paper and discussion before the bill became law, this was often referred to (misleadingly, but that’s another story) as the bill’s aim of “preserving Parliamentary sovereignty”.
That being the case, there is no conflict between the HRA and a later statute which breaches human rights. Honestly! So the doctrine of implied repeal doesn’t come into it.
If the CEHR is right, which I very much doubt, then the CT Act will under s4 of the HRA be declared incompatible with Convention rights – and will lawfully remain on the statute book and be enforced and applied. There’d be no legal reason why the government would have to repeal it, unless someone won a case against it in Strasbourg, which would give rise to an international law obligation to remedy the situation somehow. It might want to repeal it for political reasons, but that’s not law of course. As a matter of interest, when Charles Clarke was defeated over detention of foreign terror suspects in Belmarsh, he could legall have left them languishing there (as in fact he did for a couple of months as I recall, while he thought up controls orders as the political solution to his problem). Their detention was incompatible with Convention rights, yes – but under the HRA, it was lawful.
On judicial approaches to implied repeal, you’re referring to what Laws LJ said in Thoburn, the “metric martyrs” case back in, was it about 2002? I’ve no idea what most judges think, but my view is that he was right about some provisions of the European Communities Act 1972 and the HRA being immune from implied repeal, but it ain’t because they’re constitutional in nature. It’s because when you look in detail at the relevant provisions – take section 2(4) of the ECA72 (admittedly an obscure provision) – you realise you are necessarily departing from what was clearly Parliament’s intention if you apply implied repeal to it in the traditional way. Essentially, since 1972 Parliament has passed one or two acts whose entire purpose is to fundamentally condition and colour the way subsequent Acts are read – you can only give effect to those by modifying implied repeal as it applies to them. Of course this doesn’t limit Parliamentary sovereignty at all because Parliament can always simply repeal the HRA or the ECA expressly.
Thanks for taking the time to make such a detailed response.
I must say, I’m pretty gobsmacked by the government being able to legislate in breach of human rights, but I suppose I shouldn’t be, that being the basis of the British Constitution.
On the point about the Thorburn case, my reading of the judgement of LawsLJ is that he did say that certain laws were not succeptible to implied repeal because of their being “constitutional statutes”, and he listed Magna Carta and the Bill of Rights and so on as examples.
What is not clear to me is the standing of this theory in law. But if Laws is right, then presumably parliament would have to expressly repeal the HRA to get 42 days, and while possible, this would presumably have a political price to pay.
OK, I think I’ve missed the point, haven’t I? The HRA allows the courts to make a declaration of incompatability, but the offending legislation stays on the statute books. You did try to explain that to me, but I was being too dense to take it on board.
Laws’ inclusion of the HRA as a “constitutional statute” looks a bit suspect on this basis.
You’ve got it now. Legislating in breach of Convention rights is consistent with the HRA, so there’s no question of it leading to implied repeal, and no need for express repeal to achieve it.
You’re right about what Laws said; in my last post I gave you my view of it. I think he’s wrong to say it’s about the status of any Act: it’s about what the legislation says. If seeing a statute (Act 1) as impliedly repealed by another (Act 2) would clearly depart from the intention of the Parliament which passed Act 1 and it’s not clear that parliament 2 intended you to do that, then the only result you can come up with that gives undoubted effect to the intention of Parliament in relation to the two still valid Acts is to refuse implied repeal.
Yes, you’ve got my point about the HRA, but you may be being unfair to Laws. Remember the real “action” re the HRA and implied repeal isn’t to do with breaches of Convention rights! It’s obvious that causes no conflict. The real debate is about implied repeal or implied amendment of, say, section 3. If a new Act contained interpretation provisions explaining in detail how to approach reading it, but didn’t mention human rights compatibility, the question would be: did Parly. intend us not to apply the rule in s3, which s3 says applies to all legislation?
Laws would say no, s.3 of the HRA is constitutional, so no such implied ouster: you can only oust s3 expressly. I agree with his result, but I say the reason, the barrier to implied ouster, is the content of s3, not its status.