by Tom Hickman. Oxford, UK and Portland, OR: Hart Publishing, 2010. 360pp. Paperback. £45.00/$90.00. ISBN: 9781841139692.
Reviewed by Stephen James, Centre for Dialogue, La Trobe University, Australia. Email: Stephen.James [at] latrobe.edu.au.
Tom Hickman’s work on the United Kingdom’s Human Rights Act 1998 is ‘about how human rights principles have integrated with public law doctrines and, most importantly, how they should integrate. It is a book about the transformation of public law’ (p.1). Even the term ‘public law’ reflects some of this transformation, as does its use in Australia. While the term public law had always been used in Australia and the United Kingdom to broadly differentiate law that revolved around the state (such as criminal law) from the private law of contracts and torts, for example, its use to encompass constitutional law, administrative law, and arguably the constitutionalism associated with it, is much more recent. In this respect there is a clear contrast with the long use of the term in the more explicitly rights- and value-oriented context of American constitutional law (a fact reinforced by the teaching of ‘public law’ in American departments of ‘government’, ‘politics’ or ‘political science’; think, for example, of professors Edward Corwin and Walter Murphy at Princeton University).
Hickman, a ‘public law’ and human rights barrister at Blackstone Chambers, London, brings practical understanding to bear on his thoroughly researched, lucid, elegant and sometimes witty analysis of the relevant academic literature and English and selected European cases, and of the brief but useful Australian (e.g. the state of Victoria’s legislative Charter of Human Rights and Responsibilities (2006)), Canadian and New Zealand examples he employs.
The book essentially defends the capacity of English common, administrative and constitutional law and constitutionalism to adapt to the new culture and provisions of the Human Rights Act, which draws upon the civil and political rights of the European Convention on Human Rights (1950).
Given the UK’s positivistic tradition, its foundational doctrine of parliamentary sovereignty, its lack of a written constitution and the shadow cast over it by Hobbes, Locke and Bentham (their liberal and utilitarian resistance to abstract, utopian rights as opposed to real rights based on ‘ordinary’ law), the central tension between the human rights jurisprudence coming out of Civil Law Europe and the more concrete, pragmatic, inductive and evolutionary jurisprudence of English common law should not surprise anyone. I am not convinced, however, that Hickman is able to resolve this tension. While he is certainly well-disposed towards the new human rights norms, and to the independent responsibility of English courts to determine breaches of them, he is still entranced by the gradualist and [*466] contextualized characteristics of the English common law:
[C]ontext . . . is everything in public law; public law is less about general principles than one might think…The structure of public law cannot be settled at the level of principle. It must be settled by a process of working backwards and forwards between the general and the specific, between principles and the details of decided cases and legislative rights. (p.297)
But if English public law has been transformed by the Human Rights Act, then courts cannot continue to suggest, in Diceyan tones, that constitutional rights are merely the outcomes of ordinary law. (Hickman, himself, is an astute but respectful critic of Dicey.) As every law student well knows, the problem (or virtue for some) of common law rights is that they can be overridden by the legislature, notwithstanding judges’ creative use of presumptions of parliamentary intent, combined with interpretations of the Human Rights Act, that end up requiring explicit words (or at least clear intent) if parliament is to sweep them away or even significantly impinge upon them. Indeed, the creativity that Hickman endorses as ‘common law constitutionalism’ (p.17) was only invented out of necessity: namely, the inability of the common law to keep pace with social and moral change (for example, in relation to freedom of expression, privacy, and, most importantly, gender and racial equality). A similar trend was seen in relation to the Australian constitution where, in response to the near-impossibility of amending it, left-leaning, progressive and often dissenting High Court judges like Lionel Murphy in the 1970s and, more recently, Michael Kirby, developed rights ‘implied’ from the rather unpromising words of the constitution (for example, the right to freedom of political communication).
While all English and Australian legislation and constitutional law must in one sense be seen through the eyes of the common law (since anything that comes before a court must be decided by it in the usual fashion, using common law judicial techniques), there is a big difference between constitutionally-recognized international human rights that are applied by courts and ordinary legal rights – creatures of the common law – being applied by them. If, according to Bentham, real rights can only come from real law, not natural law fantasies, perhaps real human rights only come from real bills of rights which are constitutionally entrenched. In contrast, the human rights protected by charters in the UK, Australia and New Zealand are legislative creations that can be amended or repealed by their political masters, the executive-dominated parliaments of these countries.
Hickman criticizes ‘monists’ for trying to reduce public law to a single governing principle like protection against the abuse of political power (p.270) and human rights advocates for equating public law with the protection of rights. This criticism is well made: public law is about much more than rights. Even the principle of the separation of powers, a point that is often neglected, embodies within it the notion not only that public law must balance the realization of political projects of the community as represented in parliament with the rights of [*467] minorities and individuals, but also the notion that courts are generally not the best organs for effective policy-making. They are not meant to govern any more than legislatures are meant to adjudicate. Note that this is different from the commonly-made point on legitimacy with regard to the limited power and jurisdiction of courts because of their unelected nature (a point which Hickman answers well by emphasizing that courts and legislatures make law in their own ways and that they thus contribute distinctively to a constitutional, not a simply majoritarian, democracy) (pp.1–3, 13–14, 58, 79, 81, 113, 156–165).
Moreover, Hickman argues against ‘further radical doctrinal innovation’ (p.1) in public law by English judges as they respond to the Human Rights Act, not only as a matter of principle, but as a result of his fear of the inherent messiness that will result. Instead he ‘seeks to develop methods that are already immanent in the common law, rather than importing from outside [i.e. from Europe], or inventing from scratch’ (p.139). But, the doctrinal messiness of English human rights jurisprudence is substantially the result of legal rights having to be defined by judges within the common law in traditional, piecemeal, contextual, fact-limited and evolutionary ways. Rather than human rights principles such as equality, constraint of power and so forth being to blame for doctrinal untidiness, it is often the nature of the common law itself that is responsible (see pp.16–27, 48, 58, 105, 156, 165, 270–278).
For clarity and simplicity, there needs to be, not an avoidance of abstract principles, but a more rigorous analysis of them, together with a Civil-Law clean-up of English constitutional and administrative law (for example, through the kind of codifying legislation that has been used in relation to aspects of criminal, contract and trade practices law in Australia). While judicial interpretation cannot and ought not be avoided, it is advantageous if judges undertaking the task have a clearer idea of what the law is and how it should be interpreted (as to which matters legislation can give useful guidance). But, beyond this improvement, since common law and legislative rights can always be displaced, there is a need for a constitutionally entrenched, even if limited, bill of rights. Whether this can be achieved, given the doctrine of parliamentary sovereignty (not to mention the perhaps greater scepticism of things European, given the ongoing political and fiscal turmoil in EU countries, even if experienced to some degree in England), is another matter.
In this short review, I have addressed neither the author’s discussions of the rule of law (a principle surely no less abstract, and no less valuable, than the human rights principles of the monists he criticizes) and the weight courts ought to give to the expertise of other arms of government as part of ‘constitutional dialogue’ (p.59) nor his argument (see Chapter 7) that tort law and public law should be integrated – an integration I think both unlikely and ill-advised.
These discussions are nonetheless all part of an illuminating, clear and engaging work based on extensive research. While the book lacks a conclusion to match its excellent introduction, it will be of particular benefit to English legislators, [*468] policy-makers, judges, academics and lawyers, as they work in the shifting (and sometimes colliding) territories of the common law, constitutionalism and human rights.
© Copyright 2011 by the author, Stephen James.