Written Evidence from Professor
Thomas Glyn Watkin*
- I am grateful
to the Equality, Local Government and Communities Committee for the
invitation to appear before it and give evidence in relation to
this inquiry. The opinions expressed in this paper are entirely my
own and do not represent the views of any body or institution with
which I am or have been associated. I should stress that my
knowledge and experience of the law relating to human rights is by
and large limited to the connection between such issues and the
legislative competence of the Assembly and the Welsh Ministers.
That connection was the focus of the briefing paper, Human
Rights from the Perspective of Devolution in Wales,[1]
which I wrote for the British Academy at its invitation last year.
I understand that the Committee is already aware of that paper and
the views expressed in it, although I should emphasize that it was
commissioned and written prior to the Brexit referendum last
June.
Introductory Remarks
- In his
prizewinning book, The Rule of Law, the late Lord Bingham of
Cornhill argued that ‘affording adequate protection of
fundamental human rights’ should be regarded as a feature of
the rule of law in a free democratic society. He thought that the
rights and freedoms set out in the European Convention on Human
Rights and to which direct effect had been given within the UK by
the Human Rights Act 1998 deserved to be regarded as fundamental in
the sense of being guarantees which ‘no one living in a free
democratic society such as the UK should be required to
forego’.[2]
- Few would
dissent from that final statement, but there remains considerable
room for debate about the best means to ensure its achievement. The
basic choices lie between political and legal safeguarding of such
rights, and with regard to the latter between internal safeguards
within a nation state as opposed to external supra-national
checks.
- The United
Kingdom would traditionally regard itself as having safeguarded
such fundamental rights through internal, political means. The
representative nature of the House of Commons within Parliament,
coupled with the oversight afforded by the unelected House of Lords
as a revising chamber, both safeguard fundamental rights as part of
the regular work of scrutinizing legislative proposals and
supervising the conduct of government. Questions such as whether
the courts might ever intervene by refusing to apply a duly enacted
piece of Parliamentary legislation because it was repugnant to
reason, fundamental rights or the rule of law have been for the
classroom rather than the courtroom.
- Few modern
democracies, however, have been prepared to place such trust in
political checks alone. Countries with written constitutions rely
ultimately on the law rather than political processes to ensure
that fundamental rights are respected, setting limits to the
legislative powers of even the national parliaments and allowing
recourse to the courts by citizens if those limits are breached,
with judicial power to annul offending enactments. As such
approaches are inconsistent with the notion of parliamentary
sovereignty, they have proved unattractive within the UK – at
least as far as the Westminster Parliament is concerned. The
devolved legislatures, on the other hand, have statutory
limitations imposed upon their competence by the UK Parliament
which render their enactments susceptible to challenge, review and
annulment before the courts.
- Unsurprisingly, events in Europe in the first
half of the twentieth century raised doubts concerning the efficacy
of internal checks alone as a means of protecting fundamental
rights from the abuse of legislative and executive power.
Declarations, such as the European Convention on Human Rights
(ECHR), and supra-national judicial bodies, such as the European
Court of Human Rights (ECtHR), were designed to ensure state
compliance with fundamental freedoms. Such supra-national
obligations and determination procedures are, of course, inimical
to notions of untrammelled national sovereignty.
- The tension
between the UK’s traditional perspective of parliamentary
sovereignty and the supra-national perspective of the ECHR is
manifest in the manner in which the Human Rights Act 1998 operates.
Although the incorporation of Convention rights into the domestic
law of the UK meant that UK citizens no longer had to revert to the
ECtHR for adjudication of their rights, the 1998 Act did not confer
on UK courts the power to annul UK parliamentary legislation which
was incompatible with the Convention rights. Instead, the courts
were empowered to make declarations of incompatibility, following
which it was for Parliament to determine whether or not the
incompatible legislation should be repealed or amended to bring the
rogue provisions into compliance. Declarations of incompatibility
have usually, but not always, been followed by legislative
correction.
- The position
of the devolved legislatures is different in this regard. If a
citizen complains before the courts that a legislative provision
made by a devolved legislature or a devolved government is
incompatible with Convention rights, then, if the incompatibility
is found to exist, the legislative provision will be annulled
totally or at least tailored to the extent necessary to restore
compliance. Indeed, bills passed by the devolved legislatures can,
after having been passed, be referred to the UK Supreme Court by
the law officers on the grounds of incompatibility so as to prevent
them becoming law. This was one of the grounds of challenge in the
reference of the Recovery of Costs of Asbestos-Related Diseases
(Wales) Bill at the end of the fourth Assembly.[3]
The devolved legislatures in this regard are more akin to
legislatures working under a written constitution than they are to
the UK Parliament.
- There is one
further twist in this tale. As England has no devolved legislature,
the ‘English Votes for English Laws’ procedures in the
House of Commons operate to prevent England-only laws being passed
by the UK Parliament against the wishes of a majority of English
MPs in the lower house. As such England-only legislation, when
passed, is a UK Act of Parliament, it is not subject to judicial
annulment following challenge for incompatibility, but only to
being declared incompatible. Although ‘EVEL’ is often
presented as a corrective counterbalance to a democratic deficit
suffered by England as a consequence of devolution to other parts
of the UK, the solution adopted re-inforces the view that the
sovereign UK Parliament remains in truth the English Parliament to
which representatives of the other nations are admitted. Such a
perception goes along with a view of the UK as the union of three
other nations with England rather than as the union of four nations
to form a united state. These competing perspectives are relevant
to the question of how functions currently vested in the
institutions of the EU are to be distributed nationally within the
UK in the wake of Brexit.
The Impact of the UK’s
withdrawal from the EU on human rights protection in
Wales
- While
withdrawal from the EU would mean that Welsh legislation would no
longer have to be compatible with EU law, withdrawal of itself
would make no difference to the requirement that Welsh legislation
had to be compatible with the Convention rights incorporated into
domestic law by the Human Rights Act 1998. The Convention rights
however are concerned with rights of the fundamental kind
identified by Lord Bingham as being the kind that no one living in
a free democratic society should be required to forego. Lord
Bingham himself commented that there was ‘no universal
consensus on the rights and freedoms which are fundamental, even
among civilized nations’.[4]
In other words, some rights not included within the Convention
might be regarded as being fundamental or at least as deserving
protection.
- Many such
rights are currently enjoyed by UK citizens as a consequence of
their being protected by EU law. These would include, for example,
rights concerning employment, parental leave and consumer
protection. Questions therefore arise as to whether, and, if so,
how, such rights will be ‘afforded adequate protection’
in the aftermath of the UK’s exit from the EU.
- Currently,
within Wales, such rights are protected by the requirement that
laws enacted by the Assembly or made by the Welsh Ministers have to
be compatible with EU law, and – even at UK level – the
European Communities Act 1972 requires that EU law be accorded
primacy over UK domestic law thus ensuring compatibility. The UK
government has indicated that a ‘Great Repeal Bill’
will be announced in the Queen’s Speech this year which will
propose the repeal of EU law provisions within the UK and their
re-enactment in the form of provisions of UK domestic
law.
- The question
therefore arises as to whether thereafter Welsh legislation will be
required to be compatible with this new body of domestic law in
order to be valid, and, if so, how will that new body of law
subsequently be developed. While part of EU law, those provisions
would fall to be interpreted by the Court of Justice of the
European Union (CJEU), and could only be amended by the appropriate
institutions of the EU. The UK could not amend that law without the
consent of at least a weighted majority of the other member states
and, on occasion, the unanimous consent of all of them. The
question arises as to by whom and by what procedure the replacement
body of law can be amended following Brexit. Will it be entirely
under the control of the UK Parliament as a reserved matter, or
will the consent of the other nations of the UK be required? Given
that such changes will affect the legislative competence of the
devolved nations, legislative consent motions should be required,
but on this issue the question of whether such a requirement should
be a mere convention or should be capable of judicial enforcement
arises afresh.
- Nor is it
simply an issue of consent to proposed UK provisions. Will it be
open to the devolved nations to provide greater levels of
protection or different mechanisms for protection within their
respective territories? One thinks of the incorporation of the
rights of children and young persons into the body of Welsh law, or
of the proposals to safeguard the rights of workers to take
industrial action within sections of the public sector in Wales.
Will such variations be permissible regarding matters which are not
reserved? If such competence is devolved, will that devolution be
symmetrical or will there be differing competences among the
devolved nations, and will the answer to that question regarding
Wales be affected by its not being a distinct legal
jurisdiction?
- In giving
effect to EU legislation at present, member states are required to
respect Convention rights as part of the general principles of EU
law. This gives rise to the question of whether such an approach
will also inform the content of the domestic law made after the
Great Repeal has taken place. As long as the Convention rights
remain incorporated within UK domestic law, one would expect the
provisions of erstwhile EU law to remain subject to the protection
mechanisms provided by the 1998 Act, although no primacy would
attach to them as they may at present enjoy in those areas by
virtue of being part of EU law. An interesting question is how far
the other EU nations may attempt to insist that the UK observe
Convention rights in areas currently governed by EU law as part of
the treaty obligations to be entered into by the UK to govern its
future relations with the EU, and how such obligations will be
enforced as regards devolved law-making.
The Impact of the UK
Government’s proposal to repeal the Human Rights Act 1998 and
replace it with a UK Bill of Rights
- This is the
issue which was discussed regarding Wales in my briefing paper
written for the British Academy last year. As I am aware that the
Committee has access to that paper, I will not repeat its contents
in any detail here. I shall confine myself to emphasizing some
issues of particular relevance and importance here.
- First, repeal
of the Human Rights Act 1998 would not of itself terminate the
UK’s adherence to the ECHR. Such adherence would remain a
treaty obligation. Accordingly, although citizens would not be able
to challenge legislation before the UK’s domestic courts for
incompatibility, they would nevertheless be able to seek redress
before the ECtHR, and the Secretary of State would still have the
power to intervene to prevent an Assembly bill from receiving Royal
Assent where he or she had reasonable grounds to believe that its
provisions were incompatible with the UK’s treaty obligations
relating to the Convention.
- Secondly, with
regard to the enforceability of fundamental rights before courts in
the UK, everything would depend on the exact terms of the UK Bill
of Rights. One suspects that compatibility with the UK Bill of
Rights would become an essential ingredient of legislative
competence for the devolved legislatures. Once more, however, the
question will arise of whether the courts will be empowered to do
anything more than issue declarations of incompatibility with
regard to the legislation of the UK Parliament. Very important in
this regard will be how a UK Bill of Rights is to be enforced in
relation to England-only legislation made by the UK Parliament.
Will such legislation continue to be treated as enactment by the
sovereign parliament or will it be treated as a form of devolved
legislation. In truth, as suggested above, the manner in which this
question is answered is very revealing about the status of England
within the UK and how the relationship of the UK to that nation
corresponds or differs to the UK’s relationship with its
other national components.
- The same issue
remains pertinent with regard to the manner in which the courts
will review questions of compatibility when dealing with the
various legislatures. In the Asbestos-Diseases Case, the
majority of the Supreme Court were clear that, in considering
whether a fair balance had been achieved between the policy goal
being pursued by the legislation and the interference
proposed to a fundamental right in order to achieve that goal, the
court would not question or review the quality of the
decision-making in the UK Parliament – as that would be
contrary to article 9 of the 1689 Bill of Rights – but would
be prepared to do so when reviewing legislation made by devolved
legislatures. The minority judgment of the Supreme Court found this
distinction to be illogical. To this must once more be added the
inconsistency between the treatment of England-only legislation
made by the UK Parliament under EVEL and nation-specific
legislation made by the devolved legislatures. The passing of a new
UK Bill of Rights would afford the opportunity to redress this
imbalance, but it is questionable whether the opportunity will be
welcomed let alone taken. It is in essence an opportunity to make a
clear choice between defending human rights by political or legal
means, rather than, as at present, imposing legal mechanisms for
their defence on the devolved nations while relying on political
checks at UK – and therefore England – level under
cover of respecting and defending the sovereignty of
parliament.
- The content of
a UK Bill of Rights will undoubtedly be a reserved matter as
against the devolved legislatures, at least with regard to the
minimum content or level of protection of those rights. The
question, however, may remain open as to whether a devolved
legislature might supplement or add to the list of protected rights
within its territory or afford increased levels of protection. A
precedent for such an approach can be found in the treatment of
Equal Opportunities as a reserved matter in the Wales Act 2017.
Despite Equal Opportunities being reserved, an exception allows the
National Assembly to enact provisions which supplement or are
otherwise additional to provision made by the Equality Act 2010 or
to require the taking of action which is not prohibited by the 2010
Act. This would however lead to different levels of protection in
the different nations of the UK, and once more the question needs
to be asked whether, in considering the propriety of such
variations, the continued single legal jurisdiction of England and
Wales might militate against Wales enjoying the same legislative
latitude as the other devolved nations.
Public perceptions about human
rights in Wales, in particular how understandable and relevant they
are to Welsh people
- I cannot
provide anything other than anecdotal evidence concerning how the
public in Wales perceive human rights. While inevitably such
perceptions are undoubtedly coloured by political opinion, my own
experience is that popular understanding of human rights
protection, including its importance and its relevance, is
frequently confused, a confusion which results in my view from the
confusing manner in which the UK has chosen to promote human
rights.
- One common
source of confusion is to link adherence to the ECHR with
membership of the EU, and to confuse the work of the CJEU with that
of the ECtHR. There is a degree of inevitability about this
confusion, but it would be wrong not to recognize that it results,
at least in part, from the ambivalent attitude to supra-national,
European institutions which has plagued British politics for over
half a century. As long as a ‘them and us’ approach to
European institutions prevails, with supra-national, European
dimensions being regarded as ‘other’, such confusions
will continue. It may be that this particular confusion will
be redressed on realisation that Brexit does not of itself affect
the UK’s adherence to the ECHR, nor the UK’s acceptance
of the jurisdiction and jurisprudence of the ECtHR.
- If the UK were
to replace the mechanisms of the Human Rights Act 1998 with a UK
Bill of Rights, it is possible that the outcome would assist in
making the legal and constitutional mechanisms for the protection
of human rights in the UK more accessible to its citizens. I doubt
however whether that will be the case if differences continue
between the treatment of England in this regard and the treatment
of the other nations. The UK Parliament has successfully enacted
provisions in the European Communities Act 1972 which have allowed
the courts to accord primacy to EU law over later parliamentary
enactments as well as the legislation of the devolved nations. It
should not be impossible for it enact a similar scheme to permit
the courts to accord primacy to a UK Bill of Rights over other UK
parliamentary legislation, even if that were only to be a
rebuttable presumption in respect of the UK Parliament, that is a
presumption which could in specific cases be rebutted by express
provision to the contrary or by necessary implication. Such a move
would be no more a denial of parliamentary sovereignty than the
existing provisions of the European Communities Act, the proposed
repeal of which establishes beyond doubt that its enactment has not
diminished Parliament’s sovereign law-making
powers.
- Such a
development would mark a clear choice by the UK of its preference
for legal rather than political checks upon legislative power,
rather than the mix which obtains at present. At the very least I
would argue that England-only legislation in the UK Parliament
should be subjected to such a regime, and that as an irrebuttable
presumption, so as to ensure equal treatment for those subject to
the law in all of the nations of the UK. To again quote the words
of Lord Bingham on the contemporary meaning of the rule of law:
‘The laws of the land should apply equally to all, save to
the extent that objective differences justify
differentiation’.[5]
I would argue strongly that such differences with regard to the
protection of human rights should be objective differences
regarding the individuals entitled to them, not differences with
regard to the legislatures which enact the means for their
protection. It is simply neither right nor just that an
England-only law which allegedly contravenes a protected right
cannot be challenged by those affected by it in the same manner as
a law made in Wales, Scotland or Northern Ireland.
- Nor is the
injustice confined to the treatment of individuals. If the UK
Parliament chooses political means to protect and redress human
rights violations for the laws it makes, leaving it ultimately to
the democratically elected representatives of the people to
determine whether particular interferences are justifiable, it is
not clear why the same method of protection should not be regarded
as effective with regard to the legislative choices of the devolved
legislatures in matters within their competence. If the
people’s elected representatives at Westminster can be
trusted to make the appropriate choices on such issues, why cannot
the same people’s choice of representatives be trusted in
Cardiff Bay, Holyrood and Stormont? A consistent and articulated
principle underlying the UK’s approach to human rights
protection would, in my view, go far to increase public
understanding of the system, and appreciation of its
significance.
I hope these views will be of some assistance to
the Committee in its deliberations.
Thomas Glyn Watkin
25 March 2017
* Professor Thomas Glyn Watkin, since retiring,
has been an honorary professor at both Bangor and Cardiff Law
Schools. Prior to retirement, he was First Welsh Legislative
Counsel to the Welsh Assembly Government (2007–10), Professor
of Law and Head of Bangor Law School (2004–2007) and
Professor of Law at Cardiff Law School (2001–2004), having
previously been successively Lecturer, Senior Lecturer and Reader
in Law at Cardiff (1975–2001) and Legal Assistant to the
Governing Body of the Church in Wales (1981–1998). He is a
Fellow of the Learned Society of Wales, and an ordinary academic
bencher of the Middle Temple.
Notes
[1]http://www.britac.ac.uk/news/british-academy-publishes-human-rights-briefings-devolution-wales-and-uk%E2%80%99s-international.
[2]
Tom Bingham, The Rule of Law
(London: Penguin Books, 2010), p. 66.
[4]
Bingham, The Rule of Law, p.
68.
[5]
Bingham, The Rule of Law, p.
55.