Category Archives: Arguments

Planning to Level Up  

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Last month Tewkesbury Borough Council lost their challenge against the decision by a planning inspector to grant permission for 50 homes at Gotherington, after an appeal by developers JJ Gallagher and Richard Cook against the local authority’s initial refusal of permission. Under paragraph 74 of the National Planning Policy Framework (July 2021 version), a local planning authority is required to maintain a five-year supply of deliverable housing sites, designed to meet its local housing requirement calculations. Paragraph 11 establishes that, where a local authority has failed to maintain such a land supply, the so-called “presumption in favour of sustainable development” applies and planning permission should usually be granted.

The central issue in Tewkesbury Borough Council v Secretary of State for Housing Communities And Local Government [2021] EWHC 2782 (Admin) was whether a local authority which had previously delivered more homes than its own average annual delivery target suggested were needed during the earlier part of its Local Plan period was: a) entitled; and b) required to factor that past oversupply into its future housing land supply calculations. The council claimed that, when past delivery across the plan period was taken into account, they had a land supply of 4.37 years, but the inspector disagreed, estimating that the local authority had just 1.82 years’ supply and consequently applying the presumption in favour of sustainable development and approving the Gotherington application.  

The council appealed, and the High Court was therefore required to consider a question upon which the NPPF and Planning Practice Guidance on Housing Supply and Delivery are both silent, namely how authorities should treat past oversupply. The Court upheld the inspector’s decision in this instance, but before hard-pressed local planning authorities throw up their hands in despair, they should turn to the judgment of Mr Justice Dove. Although Dove J was clear in his rejection of the claimant local authority’s contention that they were required by law to factor past oversupply into their future housing land supply calculations [42], he did not go so far as to state that it could never be a relevant consideration. Rather, he held that “the question of whether or not to take into account past oversupply in the circumstances of the present case is, like the question of how it is to be taken into account, a question of planning judgment which is not addressed by the Framework or the PPG and for which therefore there is no policy” [47]. It will therefore be for local authorities and inspectors to consider the relevance of previous housing delivery levels to current local planning policies, applications and appeals on a case by case basis, doubtless creating plenty of work for planning barristers in the process.

The nave of Tewkesbury Abbey

This judgment does result in considerable ongoing uncertainty. However, one can see why Dove J declined to offer a rigid legal precedent on this issue, holding that it would be inappropriate “to introduce, by way of inference, text into the policy of the Framework which does not exist” [45]. The interpretation of planning policy will always be contingent upon local circumstances and the application of an overly legalistic blanket approach to decision-making will rarely be appropriate. Moreover, the imposition by the Court of a mandatory rule one way or the other on this issue might have had a deleterious effect on the ability of local authorities to meet housing need in their area. If councils were never allowed to factor any past delivery into their future housing land supply calculations, it might create a perverse incentive for some authorities which would otherwise be proactive about promoting development to meet local need, to delay the allocation of land for housing, the granting of planning permission, and potentially the supply of social housing until later in the plan period, to maintain their rolling housing land supply. Conversely, if authorities were always required to take past oversupply into account, this could potentially put an unnecessary constraint on their delivery ambitions. In either case, it would be deeply unfortunate if an overly prescriptive approach to paragraph 73 of the NPPF were to prevent local authorities from housing people on their waiting lists.

Also raising important questions about the relationship between past delivery and future housing need in the last couple of weeks was the first report of the Building Back Britain Commission, entitled ‘Levelling up and the housing challenge‘. Established by six commissioners from organisations across the housing and construction sectors, this Commission has suggested that the Government’s methodology for calculating housing need requires a radical overhaul if the levelling up agenda is to be achieved.  

The standard methodology for calculating “objectively assessed need” (OAN) for housing, as set out in the PPG on Housing and Economic Needs Assessment has four stages:

  1. First, local planning authorities are required to set a baseline figure according to household growth projections for their area.
  2. Second, they adjust that figure according to the local housing affordability ratio, so that areas with the biggest gap between earnings and house prices are required to deliver the most homes.
  3. Third, an authority may cap the upwards adjustment of its housing need figure, provided that it has up to date strategic policies in place, including any relevant policies contained in a spatial development strategy.
  4. Fourth and finally, in the twenty most populated urban centres in England a further 35% uplift is applied after the cap in Stage 3.

This methodology was first introduced in the 2018 revision of the NPPF, at which point it comprised only stages 1–3. The Government has since attempted to tweak the method to bring it into line with its national ambition to deliver 300,000 homes per year. (One might question whether a methodology designed to result in a predetermined figure can really be said to be measuring housing need at all, but that is an argument for another post!) The first proposal from what is now called the Department for Levelling Up, Housing and Communities (formerly MHCLG) was to place an even greater emphasis on local affordability indices to determine the uplift required after initial household projections were calculated, but this was extremely controversial and faced a great deal of backlash, including from Conservative backbenchers. Eventually the Government abandoned this approach and adopted the new “top ups” for large urban centres instead, fixing on the 35% level to bring the overall figure into line with the 300,000 homes per year goal.

This adjustment brought the numbers up on a national level but did nothing to address one of the underlying issues with the current methodology, namely that it produces local housing need calculations which are higher in areas where the market is already overheated and lower in areas where it is depressed. Planning policies based on these calculations will inherently reinforce market forces rather than doing anything to proactively shape the housing market or rebalance the economy away from the South East and from major urban centres and towards other regions of England and smaller cities and towns. At present, for example, the OAN standard methodology leaves councils in the London commuter belt attempting to meet ever more ambitious housing targets, within the constraints imposed by Green Belt and AONB designations, while many post-industrial towns in other parts of the country are deemed to need far fewer new homes, despite having a good deal of brownfield land which would be ripe for redevelopment.

Planning policy could be a powerful tool in the Government’s armoury as it pursues its levelling up agenda. The opportunity is there, especially with regards to brownfield sites. In the latest of its series of reports on the subject, published in October of last year, CPRE calculated that there are currently enough sites on local authority brownfield registers to build 1.3 million new homes, of which 53% already have planning permission. A large proportion of these sites are in the North and Midlands, and in smaller urban centres as well as major cities. The Building Back Britain report recognised this opportunity and called for a new national housing strategy, which would be explicitly aligned to the levelling up agenda. Rather than calculating housing need on the basis of historic growth, this strategy would proactively identify more deprived areas of the country which would benefit most from future investment in housing. It would also involve explicit targets for the delivery of affordable homes and the greater implementation of ‘Modern Methods of Construction’ (MMC), to speed up housing delivery and reduce its environmental impact relative to traditional construction.

A post-Covid world seems like an ideal time to put some of these ideas into practice. As Sam highlighted in his post last week, more of us than ever before are now working from home on a full- or part-time basis, and with the increased possibilities allowed by remote working, smaller towns in less well-connected areas of the country might seem like increasingly attractive places to live. The Government should seize this moment, while the agglomerative forces binding large portions of the workforce to major cities and to London in particular are at their weakest in a generation, to promote a truly transformative planning agenda, which directs investment to where it is most needed rather than following the market.

There have been some signs that developments on this front might be in the pipeline. Appearing on the 2nd November before the House of Lords’ Built Environment Committee, Housing Minister Christopher Pincher told members of the committee to “watch this space” on the possibility of the Government introducing new methods of land value capture to encourage and support local authorities to start building homes again [p. 18]. Meanwhile, Planning Resource magazine ran an article on 5th November reporting that the Building Back Britain Commission proposals for a national housing strategy has been backed by Secretary of State Michael Gove.

It is always as well with proposed planning changes not to get ahead of oneself. The last few years have seen a wide variety of proposed alterations and overhauls to the NPPF make it to the consultation stage only to be abandoned. But right now there does seem to be a window of opportunity for the government to introduce a more equitable method of calculating housing need, which would help direct public and private investment towards areas which are most in need of it. As the Tewkesbury judgment shows, it is not enough to rely on past delivery statistics. There is now authority for the fact that these cannot serve as an excuse for future under-delivery on a local level. Neither should they be used to predict and direct future policy for housing delivery on a national scale. As we emerge from the pandemic, it is time for  a more interventionist approach to planning, informed by a genuine levelling up agenda. The Government should remember the old adage and know that if they build it, we will come.    

What I’ve been up to recently…

I was very happy to have the opportunity be one of the judges for the first round of the City Law School GDL moot recently. A year ago, the first round of the 2020/21 competition was my first ever experience of mooting and an excellent way to get more comfortable with the process before tackling any external competitions. So it was really nice to come full circle and have the chance to offer some advice to students just starting out on their GDL adventures.

A canary in the coal mine? Why the UK legal system is ill-equipped to deal with the climate crisis

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I grew up on the west coast of Cumbria, about two miles north of Sellafield nuclear reprocessing plant and eight miles south of the former mining community and port town of Whitehaven. Further up the coast near Workington, onshore wind turbines overlook the fascinatingly alien landscape of the Workington slag banks, formed from the by-products of pig iron production by the Workington Haematite Iron Company during the second half of the nineteenth and first half of the twentieth century. On a clear day, you can also see the larger offshore turbines of the Robin Rigg windfarm out in the Solway Firth.

Steel production ceased in West Cumbria in 1974 and the county’s last deep coal mine, the Haig Pit at Whitehaven, closed in 1986, but the landscape still provides an insight into the area’s industrial heritage. It also offers a clear indication as to what now sustains the economy of many of the coastal communities between Silloth and Barrow-in-Furness — the energy and especially the nuclear sector. In 2008, a public-private partnership called ‘Britain’s Energy Coast’ (since renamed ‘Building Extraordinary Communities’) launched its masterplan for the West Cumbrian economy, designed to show how it could be put on a sustainable footing by 2027 through investment in new nuclear power plants and renewable energy projects.

The view of Sellafield from Nethertown railway bridge
Workington wind turbines
Workington slag banks. The unusual shape of the rock is due to the giant ladle that was used to dump molten slag off the banks above.

But thirteen years later very little of what appeared in the masterplan has come to pass. The area’s economy is still extremely reliant on Sellafield, with research by Oxford Economics in 2017 suggesting that close to 60% of all jobs in the borough of Copeland are in some way dependent on the nuclear site [p. 21], and instead of major new renewable energy schemes generating jobs and economic growth we have the controversial Woodhouse Colliery proposal. If it goes ahead, this colliery near Whitehaven will be the UK’s first new deep coal mine in thirty years.

The company behind the project, West Cumbria Mining (WCM), started developing its plans for the extraction and processing of metallurgical (or coking) coal in 2014. The company claims that the mine would create 530 permanent jobs, of which 80% would go to local people. More controversially, it argues that it would be a ‘net zero’ emissions development, which would achieve compliance with the UK’s legally binding climate commitments via offsetting residual emissions with carbon credits certified by the Gold Standard Foundation.

It is easy to see why the prospect of a major new employer in area, creating hundreds of jobs, might seem appealing. Although wages at Sellafield are high, West Cumbria overall has faced sustained economic decline over several decades. Its working-age population is shrinking. An ever-increasing number of shops in Whitehaven town centre are shuttered up. The area is badly in need of some of the ‘levelling up’ promised by the Government.

In this context, it is perhaps not surprising that the proposal was previously approved by Cumbria County Council on three separate occasions. However, in February this year the council announced that it would be reconsidering the application for a fourth time. A month later, having previously declined to intervene, then Secretary of State for Housing, Communities and Local Government Robert Jenrick announced that he would be calling the application in for a public inquiry after all, citing new recommendations by the Government’s Committee on Climate Change as the rationale for the U-turn.

The inquiry opened on 7 September 2021 and ran for four weeks. The applicant, WCM, and Rule 6 Parties, local campaign group South Lakes Action on Climate Change (SLACC) and Friends of the Earth, appeared and were represented by counsel. Cumbria County Council did not take part in the proceedings, having decided to adopt a neutral stance on the application. Especially keen readers can find the recordings of all the sessions on the Planning Inspectorate YouTube channel.

Before being called in, the proposed development had already been subject to legal challenges on both sides of the debate. A judicial review application against the County Council’s approval of a previous version of the proposal by campaign group Keep Cumbrian Coal in the Hole received permission in February 2020, before proceedings were curtailed when WCM submitted a revised planning application. Earlier this year, the mining company itself announced that it would seek to challenge the County Council’s decision to reconsider the proposal for a fourth time, but the Secretary of State announced a public inquiry before the matter could reach the permission stage.

The entire process to date has served to highlight yet again the extent to which our legal and planning systems struggle to fully assess the climate impacts of proposed developments. Despite the UK’s legally binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and the obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008), the Act is not prescriptive about the actions that the Government or other relevant decision-makers must take to achieve these obligations.

The courts have also tended to be hesitant about pushing back too hard against decisions to approve individual carbon-intensive infrastructure projects. In a recent interview with The Planner magazine, barrister Estelle Dehon, who frequently acts on behalf of environmental campaign groups, suggested that this hesitation might be due in part to a political environment shaped by “many years of politicians… telling the courts ‘If you go too far, you will be knocked back. If you take liberties, we will act to ensure that you can’t do that any more. If you criticise too closely, we’ll clip your wings’.”

Finally, it is difficult to draw precise causal links between specific proposals under challenge and the vast global impact of the climate crisis. Indeed, a recent paper by researchers at the University of Oxford found that the claimants in 73% of cases surveyed across 14 jurisdictions did not even try, failing to cite any peer-reviewed evidence in their submissions. All these factors feed into an environment which makes it hard for legal challenges around climate change to succeed.

In the UK in the last two years, a number of high-profile challenges to emissions-heavy developments have been dismissed. In R (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin), [2021] PTSR 1160, concerning the grant of planning permission for the drilling of four new oil wells in Surrey, the High Court held that a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely direct and indirect impacts of a development did not extend to assessing the greenhouse gas emissions resulting from the use of an end-product originating from that development. In R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400, the Court of Appeal held that then Secretary of State Andrea Leadsom had carried out the balancing exercise under s.104(7) Planning Act 2008 correctly and was entitled to conclude that the benefits of the proposed new gas-fired Drax Power Station outweighed the environmental costs [108–109].

Finally, in R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, the Supreme Court overturned the judgment of the Court of Appeal that the Government’s Airports National Policy Statement was unlawful on climate change grounds. The Court of Appeal had held that the ANPS failed to satisfy the obligation under s.5(8) of the Planning Act 2008 to “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. It defined ‘Government policy’ as being both the UK’s ratification of the Paris Agreement and subsequent statements by ministers Andrea Leadsom and Amber Rudd (Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [228]). The Supreme Court dismissed these oral statements as being insufficiently clearly formulated to constitute Government policy and held that it would be unreasonable to expect civil servants to “trawl through Hansard and press statements” to identify policies [105]. One might question why the Court did not consider the Paris Agreement itself to constitute Government policy, since ratified international agreements form a clearly defined and readily identifiable list. Given the rather general wording of the agreement, however, it might not have made a difference to the outcome of the case even if the Court had held that it was Government policy to adhere to it.

The cases cited above are not an exhaustive list. Other challenges to the construction of HS2 and the design of the new UK Emissions Trading Scheme have also failed on broadly similar grounds, namely the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions reduction targets into actual policy. This degree of discretion, coupled with the growing weight of adverse precedent, means that climate campaigners seeking to bring public law challenges against Government policy are facing an uphill battle.

Indeed, the outcomes of these cases beg the question of whether legally binding climate targets are actually enforceable in any meaningful sense. At a national level, the Committee on Climate Change calculates that the UK is not on track to meet its fourth or fifth carbon budgets, and there is an overwhelming scientific consensus that we are headed for catastrophic warming without drastic emissions reductions in the next decade, let alone by 2050. Yet on a case by case basis, it always seems possible for a decision-maker, company or industry body to argue that the emissions from a specific carbon-intensive infrastructure project will be offset by emissions reductions in other sectors of the economy and/or that the socio-economic benefits of a proposal outweigh its negative environmental impacts.

Thus, judicial review challenges brought against the lawfulness of such decisions are likely to keep failing, because of the near impossibility of proving that a particular project in isolation will prevent the UK from meeting its emissions reduction targets. Irrationality challenges seem even less likely to succeed, since the bar for such challenges is set so high (although if one asked an 18-year-old whether they thought it was rational to be constructing new coal mines, oil wells, runways or gas-fired power stations in the 2020s, one suspects they might give a rather different answer from a judge).[1]

Fortunately for campaigners against the Cumbria coal mine, the planning system offers more flexibility about how climate impacts are included in the decision-making process than the legal system does, in part because planning decisions are more explicitly informed by political considerations than legal decisions are. For example, as Estelle Dehon, acting for SLACC, submitted in her closing statement to the inquiry on 1 October 2021, the judgment in Finch v Surrey County Council relates only to whether end-use emissions must be factored in when determining the legality of an Environmental Impact Assessment. It is not authority for the proposition that such emissions cannot be a material planning consideration. In the case of a coal mine, end-use emissions are necessarily fundamental in determining the overall climate impacts of the proposed development.

The inquiry spent its first week dealing with the potential economic benefits of the scheme, its second focussing on the need for coking coal in UK and EU steelmaking, and its third considering the impact of the scheme on carbon-dioxide and methane emissions. The Rule 6 Parties lead a range expert witnesses, whose evidence challenged WCM’s assertion that the project was compatible with the UK’s goal of reaching net zero emissions by 2050. In particular, Professor Stuart Haszeldine of Edinburgh University suggested that the coal was unlikely to be of sufficiently high quality for use in the UK and EU steelmaking markets and the majority was likely to end up being exported further afield, thus negating any net emissions savings on transport, while Professor Paul Ekins of University College London stated that there was no doubt in his mind that the proposals were incompatible with the UK’s emissions targets.

A further blow to the contention that the mine could be rendered net-zero-compatible via carbon offsetting was dealt by the very organisation proposed to supply the carbon credits required to facilitate the offsetting, the Gold Standard Foundation. In a letter to Friends of the Earth and to the inquiry, the Foundation stated that:

“The latest scientific paper from the Intergovernmental Panel on Climate Change on August 9 gave a stark reminder of the pace at which the planet is warming and the unequivocal influence of human activity on this warming, in particular the extraction and use of fossil fuels.

“We note that achievement of the goals of the Paris Agreement would be rendered impossible by the already planned increase in fossil fuels (UN Production Gap Report, 2019), and that the International Energy Agency has clearly stated that further investment in fossil fuels is unnecessary, with achieving global net zero goals instead requiring a rapid reduction in their use.

“It is clear to us, in light of this evidence and reflecting the principles of the mitigation hierarchy, that a new coal mine in 2021 is an activity that must be avoided in the context of the climate emergency.”

Beyond the decision to call the application in, there have also been further signs that the tide of political opinion within the Conservative party might have turned against the project, with Energy Secretary Kwasi Kwarteng stating that there were “very compelling reasons” not to open it and MP for Penrith and the Border, Dr Neil Hudson, dropping his support for the project ahead of COP 26 and urging the Government to invest in clean energy jobs in Cumbria instead. Inspector Stephen Normington indicated that his report should be expected in late December or early January, after which the ultimate decision will rest with the Secretary of State.

Whatever Michael Gove ultimately decides, however, a legal challenge seems fairly likely, at which point all the issues around how our courts deal with climate litigation may come into play once more. All this raises the question — at what point will it become so apparent that we are not on track to meet our net zero emissions targets that the courts will feel justified in declaring new fossil fuel developments to be unlawful? At what point will the effects of the climate crisis become so severe and so unarguable that any decision to approve such a development will be held to be irrational? How many more canaries will we allow to die before we finally decide to close the coal mine?

[1] For discussion of irrationality in this context see R. (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin) ,[2021] PTSR 1160, [127]; R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, [125-129].

What I have been listening to this week…

A couple of weeks ago, some eighteen months after the gig was initially scheduled to take place, I was finally lucky enough to see Nick Cave in concert at the Royal Albert Hall. I have been a fan of his music since I was a child and so seeing him live was an absolute privilege and delight. Almost the entire setlist was from two albums: 2019’s majestic, if sometimes harrowing, ‘Ghosteen’ — a meditation on love and loss written in the aftermath of the death of Cave’s teenage son in 2015 — and 2020’s ‘Carnage’, a wild and surreal lockdown album composed over just three days alongside longtime collaborator Warren Ellis. Both are exceptional in their own way and I have been listening to them and the rest of the Bad Seeds back catalogue a lot since the gig.

On a slightly more sedate note, my choir is currently rehearsing for a performance of Brahms’ Requiem in December, so I have been reacquainting myself with one of my absolute favourite choral works, and trying not to get too out of breath singing the fugue in movement six!

Saint George on a bicycle: Why we should repeal the Human Rights Act

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Ever since its introduction by the last Labour government, the Conservative party has railed against the Human Rights Act 1998. This has been primarily for two reasons. (David Allen Green, who is twice as clever as I am, puts it at four.) First, the Human Rights Act represents the imposition of foreign values on the United Kingdom. The elision of the European Court of Human Rights and the European Court of Justice is not (or not always) a mistake: both are used in the press to exacerbate a general Europhobia. This is what motivates the desire for a “British Bill of Rights”, promised in the 2015 Conservative manifesto and then again after the party’s surprise general election victory. With Brexit dominating the constitutional agenda from the next year, human rights reform never materialised. Second, the Human Rights Act frustrates the state’s maintenance of public order by, for example, prohibiting the deportation of foreign criminals. As Home Secretary, Theresa May gave a speech to the Conservative party conference on Tuesday 4 October 2011, in which she described, among the absurd cases that the Human Rights Act had brought about, “The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here.” There is a third reason for the unpopularity of the Human Rights Act, although this cannot really be associated with the Conservative party and is probably limited to scholarly circles. It is that the Human Rights Act is constitutionally inappropriate. In a Parliamentary sovereignty, judges should not twist the words of elected representatives, but should allow laws to mean what they say, especially those passed before the Human Rights Act. The Human Rights Act also imports the illegitimate jurisprudence of the European Court of Human Rights.

None of these criticisms withstands serious scrutiny. On the first point, the Human Rights Act makes enforceable in domestic courts the rights and freedoms guaranteed by the European Convention on Human Rights, which was ratified by the member states of the newly-formed Council of Europe in 1953. Winston Churchill was an early proponent of the Council of Europe and Sir David Maxwell Fyfe, later Lord Chancellor, led the drafting of the Convention. Since then, the UK has had as much influence as any other country on the interpretation of the Convention by nominating judges to sit on the European Court of Human Rights. Critics of the Convention rights cannot convincingly point to any individual articles or lines of authority that are continental or un-British in nature. It is a pretty British project. On the second point, the Convention rights are crafted in such a way as to enable the state to govern properly. The right to respect for one’s private and family life, for example, is qualified so that it can be interfered with if a public good such as public safety justifies interference. In respect of the deportation of foreign criminals, the law changed in 2014, showing that Parliament is capable of pursuing what it considers to be the public good. Today, the case referred to by Theresa May, decided in 2009 and upheld by the Court of Appeal in 2011, would probably be decided differently. On the third point, as liberal lawyers never tire of pointing out, the Human Rights Act was passed by Parliament, and, by applying it, judges are doing nothing more than enforcing the will of Parliament. Squeezing primary legislation into conformity with Convention rights under section 3, or striking down secondary legislation made by a minister under section 6, is exactly what Parliament has decided it would like judges to do. That is Parliamentary sovereignty.

Nevertheless, complaints about the Human Rights Act continue to emerge from the Conservative party. The newly-appointed Lord Chancellor, Dominic Raab, spoke about “overhauling” the Human Rights Act at the party conference in Manchester on 5 October 2021. The 2009 case reappeared, although whether it forms part of a legitimate case against the Human Rights Act since the 2014 amendment is unclear. Raab’s demotion (or promotion, depending on your perspective) provoked fears because he has a track-record of antipathy towards the Human Rights Act. However, the choice of the strong but vague word “overhaul” might suggest that a full repeal is not on the cards.

I will not say that this is a bad thing. Especially in the context of the present government, the loss of an opportunity to vindicate Convention rights in UK courts, by way of judicial review or a claim directly under the Human Rights Act, would have a disastrous human impact. However, on a level of constitutional principle and for the protection of rights in the long term, there is a case for repealing the Human Rights Act.  

Parliamentary sovereignty was the primary constitutional principle to emerge from the tumult of seventeenth-century England. At that time, the emphasis was on Parliamentary sovereignty as opposed to sovereignty of the Crown. However, at least since A. V. Dicey’s 1885 work, Introduction to the Study of the Law of the Constitution, the English legal establishment has considered that the emphasis is on the sovereignty of Parliament, as opposed to a Parliament with limited power to legislate. Professor Dicey wrote at pp. 3–4 (eighth edition, 1915, reprinted by the Liberty Fund, 1982):

The principle of Parliamentary sovereignty means neither more or less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.

Wade and Forsyth’s Administrative Law (eleventh edition, Oxford University Press 2014) states at p. 21:

The power of an Act of the sovereign Parliament, howsoever enacted, is boundless.

During the UK’s membership of the European Union, the single important exception to this principle was that primary legislation passed by Parliament would be invalid to the extent that it conflicted with EU law.[1] However, since it was Parliament, by the European Communities Act 1972, that authorised this state of affairs, and Parliament could put an end to it if it wished, as it eventually did, Parliament remained in principle sovereign.[2] And now that the UK has left the EU, no higher law exists than primary legislation on the domestic legal plane, according to orthodox constitutional theory.

The UK is unusual in this regard. In few other developed democracies is the legislature able to pass whatever law it wants by a simple majority, unlimited by fundamental rights or other constitutional restrictions on legislation. That is because an elective dictatorship, as Lord Hailsham called the UK system of Parliamentary sovereignty combined with executive dominance of Parliament, is illiberal in that it offers no protection to individuals or groups that fall into disfavour with the majority. Every person’s fundamental rights and freedoms demand protection, from the courts as a matter of justice and from the state as a matter of justification for its existence. Absolute Parliamentary supremacy is not an acceptable constitutional principle.

UK constitutional law is creeping towards acceptance of this reality. This can be seen on two levels.

On a structural level, senior judges have held, usually obiter and hypothetically, that the courts might not enforce a law enacted by Parliament that violated fundamental constitutional values. In Jackson v Attorney General [2005] UKHL 56; [2006] 1 AC 262, Lord Nicholls of Birkenhead said at [102]:

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

And Lord Hope of Craighead said at [104], at the start of a whole speech on this topic:

Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

In Hartian terms, the rule of recognition in English law is up for grabs. Alternatively, in the terms of T. R. S. Allan, who rejects the idea of a positivist rule of recognition, judges are beginning to recognise that a statute that flouted “the essentials of justice and good governance” would not be legitimate, and would therefore not “qualify as law”.[3] Whatever constitutional-theoretical model one prefers, the cases show that it is no longer clear that judges will unfailingly accept primary legislation as valid law.[4] Two weeks ago, Abella J, writing for the minority of four justices in the Supreme Court of Canada, cited Jackson, AXA and Privacy International (see [4]) as well as R (Miller) v Prime Minister [2019] UKSC 41; [2020] AC 373 to support the proposition that “unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government” (Toronto (City) v. Ontario (Attorney General) 2021 SCC 34 at [166]).

On the level of rights, the courts have developed the doctrine of common-law constitutional rights, whose enumeration is determined by constitutional values such as the rule of law. As Lord Hope said in Jackson at [107], “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”[5]

But what role can constitutional rights or the rule of law have under Parliamentary sovereignty? The courts have tried have it both ways. Their main tool in this respect is called the principle of legality. Lord Hoffmann’s explanation of the principle of legality in R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 has become the standard account. He said at 131:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

The principle of legality allows the courts to uphold and apply constitutional values while not only paying lip-service to, but in substance maintaining, Parliamentary sovereignty.

The result is that the protection of constitutional rights is weak for two reasons. First, the principle of legality is half-hearted in its application because of its subservient relationship with the principle of Parliamentary sovereignty. Second, the courts have been hesitant to recognise a wide range of individual rights as constitutionally guaranteed. The common-law constitution, in both structure and substance, is small and struggling to grow.

Why? Because of the Human Rights Act.

The legal mechanics of the Human Rights Act are similar to what the courts currently accept is their role in protecting constitutional rights. Section 3 of the Human Rights Act mirrors the principle of legality, in that it requires courts to interpret legislation in line with Convention rights wherever possible. Lord Hoffmann drew this parallel in Simms at 132: “the principle of legality will be expressly enacted as a rule of constriction in section 3 [of the Human Rights Act]”. Section 4, which provides for declarations of incompatibility with Convention rights, has no practical effect.[6] The Human Rights Act’s chief virtue over the common law is its explicit enumeration of rights. As is inevitable, there remains debate over the scope of each right, but there are clear starting-points. The Human Rights Act provides effective protection or redress in countless situations, including state surveillance, protest, welfare policy and inquests.

That all sounds wonderful. What’s the problem? The problem is that the Human Rights Act has arrested the development of the common-law constitution. It removes any incentive for the common law to develop, while providing only moderate protection against the abuse of state power. The Human Rights Act is no substitute for fully-developed constitutionalism, but the constitution cannot fully develop while the Human Rights Act remains. To borrow David Allen Green’s image, the Human Rights Act is a set of constitutional stabilisers, and they need to come off.

There are two ways in which common-law constitutional doctrine needs to evolve. The first is structural: What do constitutional principles such as the rule of law and fundamental rights mean in practice, and what is their relationship with Parliamentary sovereignty? The second is elaborative: What are the rights that the constitution guarantees? These are difficult, controversial questions. Litigants will not build their cases on uncertain foundations unless they have no choice. If you were at risk of deportation, and you could ask the court to prevent your deportation on the basis of either the settled law of the Human Rights Act, or some untested constitutional theory, what would choose? The same goes for most judges, who are not attracted to controversy. There is no reason – arguably no way – for the common-law constitution to develop while the Human Rights Act is squatting on top of it.

This matters because the Human Rights Act only achieves a fraction of what the common-law constitution could and should become if given a chance to flourish. The Human Rights Act respects and affirms Parliamentary sovereignty. It purports to fulfil the role of guardian of rights while permitting Parliament to pass laws that expressly and seriously violate fundamental rights. It would not have been passed otherwise: Parliament would not willingly give up its sovereignty. But the protection that fundamental rights require is both from government and from Parliament, as the framers of written constitutions around the world knew. Until it is repealed to enable the constitution to develop rightly, so that the rule of law, and no longer Parliamentary sovereignty, is the master constitutional principle,[7] the Human Rights Act will remain the tapeworm in the belly of the constitution. Dicey called the British constitution “the most flexible polity in existence” (p. 39). Constitutional law must be permitted to flex in the only way the common law knows how to develop, through litigation, so that the normative basis of the constitution can be reflected in doctrine. 

During the previous decade, aware of the Conservative party’s unkind intentions towards the Human Rights Act, the courts have prodded the doctrine of common-law constitutional rights awake. In R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, Lord Reed said at [57]:

The importance of the [Human Rights] Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

And in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455 at [46], Lord Mance said:

Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.

And at [133] Lord Toulson said:

The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

The subtext is that, if the Human Rights Act is repealed, we will need another means of preventing the abuse by the state of fundamental rights. And we have such a means. But while we in fact do have the protections of the Human Rights Act, the common law will not have the opportunity to fully flesh out constitutional principles. As the essays in Mark Elliott and Kirsty Hughes’ book show, the only rights that have been seriously developed during this period are those related to the institutions of justice, such as the right of access to the courts or the right to have justice done in public.[8] The courts have cleaved to the core of the rule of law and have been hesitant to explore the full range of protections that the constitution guarantees.

Maybe this is all wishful thinking. Maybe it is a risk whose costs are too high. Under the Human Rights Act, we have some kind of guarantee of fundamental rights enforceable in domestic courts, which is better than we have had for most of our history. But the 1970s and 1980s showed us that the courts are capable of using the constitutional means at their disposal, even if they have been neglected, to address the problems of the day the according to what are recognised as the pressing demands of justice. Further, do we want to wait for Parliament to pass a flagrantly oppressive law that the Human Rights Act is powerless to touch before asking the courts for a definitive answer to the question raised in Jackson? It will happen one day. The courts have started to deal with the reality that politicians don’t play by the rules anymore (R (Miller) v Prime Minister). They must take the full implications of that realisation seriously. The common-law constitution needs to evolve beyond Parliamentary sovereignty. It needs to regain its confidence and mature. If one more metaphor will not break the camel’s back, we have been sending villagers to appease the dragon since 1688. Do we have to wait until the princess is chosen as tribute before summoning Saint George? When he comes, he can’t be riding with stabilisers. We have to repeal the Human Rights Act.

What I’ve been doing this week…

I moved to Cambridge! So almost all of my reading has been prescribed. But Cambridge means walking which means podcasts. I’ve returned to Talking Politics: HISTORY OF IDEAS, hypnotically delivered by David Runciman. And I’ve started the wonderful Borderline Jurisprudence with Başak Etkin and Kostia Gorobets, which as an international law amateur I struggle to keep up with sometimes but it’s fascinating and imbued with humanity and a sense of humour. In other news I have continued my struggle to make tofu crispy.

[1] R (Factortame Ltd) v Secretary of State for Transport [1990] 2 Lloyd’s Rep 365 and [1991] 1 AC 603.

[2] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61 at [60].

[3] T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press 2013), p. 167.

[4] See also Lord Hope’s words in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46; [2012] HRLR 3 at [50] to [51], and, more recently, Lord Carnwath’s words in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] HRLR 13 at [144].

[5] For examples of common-law constitutional rights in action, see, R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] ICR 1037 at [66] to [85] and R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514 at 531. Mark Elliott and Kirsty Hughes’ volume Common Law Constitutional Rights (Bloomsbury 2020) attests to this developing area of the law.

[6] Notwithstanding Lord Reed’s challenging comment this week in the Scottish UNCRC case [2021] UKSC 42 at [50].

[7] Lord Hope in Jackson at [107].

[8] Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Bloomsbury 2020); UNISON; A v BBC [2014] UKSC 25; [2015] AC 588.