CIVITAS-重新平衡英国宪法：人权法的未来（英文）-2020.3-168页_1mb

Rebalancing the British Constitution: Summary

Core Content

This document, Rebalancing the British Constitution by Jim McConalogue, explores the need for reforming the UK's constitutional framework in the wake of Brexit, with a particular focus on the repeal of the Human Rights Act (HRA) 1998 and the UK's withdrawal from the jurisdiction of the European Court of Human Rights (ECtHR). It critiques the impact of the HRA on parliamentary sovereignty, judicial power, and democratic governance, and proposes a return to a more British-centric, democratically rooted approach to human rights.

Main Views

• The HRA is outdated and detrimental to the UK constitution.
  The HRA, enacted in 1998, has led to an overreach of judicial power, undermining parliamentary sovereignty and the democratic process. Its incorporation of Strasbourg jurisprudence has resulted in a "judicialisation of politics" and a shift in authority from elected representatives to unelected judges.

• Judicial supremacy is a threat to democratic governance.
  The HRA has given the UK courts the power to interpret and enforce rights that are not solely based on domestic law. This has led to a situation where judges, rather than parliament, have become the primary arbiters of rights, often in ways that contradict the will of the people and the intentions of the legislature.

• The UK should withdraw from the ECtHR and the ECHR.
  McConalogue argues that the UK must cease being a signatory to the European Convention on Human Rights (ECHR) and no longer be bound by the ECtHR's rulings. This would allow the UK to reclaim its constitutional autonomy and align its human rights framework with its own democratic values and legal traditions.

• Parliament should reassert its sovereignty.
  The HRA has constrained the ability of parliament to legislate freely, as it must ensure that all laws are compatible with Convention rights. This has led to a loss of legislative authority and a weakening of the democratic process. Repealing the HRA would restore parliamentary sovereignty and enable a more democratic debate on human rights.

• A new British human rights 'moral code' is needed.
  The document calls for a return to a rights framework rooted in British history and culture, rather than one imposed from above by foreign courts. It suggests that the UK should develop its own codified Bill of Rights to reflect its unique constitutional and political context.

• The executive's role in governing and protecting the nation is undermined.
  The HRA has created a situation where the executive is constrained by judicial interpretations of rights, limiting its ability to act decisively in matters of national security and governance. This is seen as a threat to the UK's capacity to protect its citizens and uphold its national interests.

• The UK's unwritten constitution is at risk.
  The HRA and the incorporation of Strasbourg jurisprudence have eroded the traditional British constitutional model, which is based on parliamentary sovereignty, common law, and the balance of powers. This has led to a situation where the UK's constitutional identity is increasingly shaped by foreign legal norms.

Key Information

• The HRA was introduced in 1998 to incorporate the ECHR into UK law, but it has been criticized for enabling judicial overreach and undermining parliamentary sovereignty.
• The UK has received the tenth highest number of Strasbourg judgments, indicating the significant influence of the ECtHR on UK law.
• The HRA allows courts to declare laws incompatible with Convention rights, but not to strike them down, leaving the issue to parliament.
• The UK's unwritten constitution, formed by Acts of Parliament, court decisions, and conventions, is seen as being threatened by the HRA's integration of foreign legal standards.
• The Conservative government's election manifesto in 2019 included a commitment to review and potentially repeal the HRA, which McConalogue sees as a key opportunity to restore constitutional balance.
• There is a call for the establishment of a Constitution, Democracy & Rights Commission to examine constitutional issues and propose reforms.
• The UK's long tradition of human rights, dating back to Magna Carta, is considered a strong foundation for a reformed domestic rights framework.

Conclusion

McConalogue argues that the HRA and the UK's continued membership in the ECtHR have created a constitutional imbalance that needs to be corrected. He advocates for the repeal of the HRA and the withdrawal from the ECtHR to restore parliamentary sovereignty and democratic governance. The document emphasizes the importance of reclaiming the UK's constitutional identity and re-establishing a rights framework that is rooted in British values and democratic processes.