Specialist human rights tribunals for the UK within a "differential constitutional model"

Abstract

The central question posed by this thesis is how effectively the “ordinary” domestic “common law courts” in the UK are currently adjudicating, protecting and providing remedies for victims of violations of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998 (“HRA”). It asks whether, and to what extent, the existing structures, rules, traditions and procedures of the common law courts are capable of interpreting and applying positive rights. The approach taken to answering this question is doctrinal, drawing on case law, common law principles, legislation as well as procedural rules. The conclusion reached is that there are difficulties and deficiencies in the current system and reliance cannot continue to be placed on the ordinary common law courts to protect positive rights. In reaching this conclusion the thesis explores the differences between the use of residual liberties to protect rights (the Diceyan approach) and the granting of positive rights contained in a “bill of rights” and suggests that there are significant differences when it comes to litigation and adjudication. The difficulties identified concern and include: the reluctance of the courts to develop the common law to provide remedies for failures to act (as positive rights require); the common law’s greater concern as to whether it is fair to impose liability, rather than a focus on harm caused to an individual; and, more specifically in terms of the change brought about by the enactment of the HRA, the inability to litigate claims domestically against the UK as a state. These are difficulties which it is argued can be addressed by the creation of a domestic human rights jurisdiction, with special tribunals with bespoke rules and procedures, and presided over by expert judges. It is proposed that the specialist jurisdiction is situated within the tribunal systems in each nation of the UK, this offers flexibility, ease and speed of access, as well as benefits in terms of the devolved nature of the UK.

This thesis also asks the normative question of whether the protection of rights should constitutionally be primarily for the courts, particularly where acts or omissions by public officials and bodies are under challenge. It is recognised that in advocating for new specialist tribunals a more prominent role for the protection of rights is being accorded to the judiciary. The thesis therefore engages with the academic debates concerning political constitutionalism, legal constitutionalism, democratic dialogue, the Commonwealth model and the Collaborative Constitution. It is argued that creating specialist tribunals would fit with a constitutional theory of democratic dialogue or a collaborative constitution, but with the addition that it should be for the courts to protect rights where the actor or actions are those of a public body or official. It is also argued that it should be for the courts to decide if they have the institutional competence to decide a case when faced with a claim concerning the potential violation of individual rights. This constitutional model is termed a “differential constitution”; which constitutional institution is primarily responsible for protecting rights differs depending on the actors, or actions in issue. Such a model will however remain within the bounds of a parliamentary democracy and respect the primacy of the UK Parliament. The central constitutional institutions would largely remain undisturbed, including the UK Supreme Court, but underneath the main institutional bodies would be a dynamic and efficient court structure providing effective protection for individual rights.

Having decided on the need, and the constitutional legitimacy of, new expert tribunals this thesis embarks on constitutional design, looking at what type of constitutional body the tribunals would be, what powers would be granted and where and how they would fit within the UK’s constitution. Creating a new human rights jurisdiction for the UK necessarily requires grappling with devolution, which presents both benefits and challenges. Benefits in that it allows for each of the nations that make up the UK to develop and apply rights in a way that best suits each nation’s legal and political culture and history. Challenges however exist due to the complex and asymmetric way in which devolution has evolved in the UK, and as result of the labyrinthian nature of the devolution legislation. This thesis has not attempted to set out a legislative plan for the introduction of the new tribunals in each nation but identifies what will need to be considered and broadly how the new expert tribunals could fit within the existing legal systems and constitutional settlements.