Wednesday, 26 November 2008

Judicial activism revisited

An interesting article on the relationship between the courts and Parliament in the development of human rights is set out by Nick Herbert MP on his webpage, which reproduces a speech he delivered at the British Library on Monday. It covers in part similar ground to that covered in my commentary, but from a political (and Conservative Party oriented) perspective rather than a legal one.

One of his arguments is that Parliament has abrogated its responsibilities in passing the buck to the courts in determining the balance between privacy rights under article 8 and the guarantee of freedom of expression under article 10. That is a reasonable point for those who think that press freedom is too important an area of law to be left wholly to the courts. One of his arguments is that the Human Rights Act 1998 paints the human rights canvas with too broad a brush, forcing the judiciary to decide too many of the details.

Broadly expressed constitutional principles will always give rise to difficulties of this kind - hence the complaints of some about the activism of the Supreme Court of the United States in construing and applying the the US constitution (including the Bill of Rights comprised in its first ten amendments).

The problem is that whatever formula Parliament comes up with to describe what that balance should be, the judiciary will inevitably be left to apply the formula to individual cases, and application of that formula to individual cases gives rise to precedents (and precedence) for the future. And what formula will that be, other than something similar to the formula set out in the Convention itself?

He is right, though, to stress the role that elected representatives must play in matters of human rights policy. I do not underestimate the importance of reminding our policy makers that they will, in due course, face the electorate again. Representational democracy provides our final defence against the ill intentioned, the poorly advised and those who might otherwise be carried away by their own ideas. Sometimes the current that the democratic process puts through the sea in which our policy makers sail can wash them away without the need for an election - as in the case of Margaret Thatcher and the poll tax.

But it is also to be recognised that the primary role of human rights legislation is to give remedies against public authorities (see my discussion on horizontality). It is to provide a shield to the minority, the unpopular and the disregarded from the enthusiasms of the majority - a bottom line beyond which the majority through their elected executive, however secure their democratic credentials, may not go. In short it is to deal with the perils of the dictatorship of the majority. It is not, as he says, "to drive better performance in public services".

There is a debate for the philosophically inclined about whether this bottom line is an inherent attribute of the condition of human existence, comprising a truth to be held as self-evident and rights endowed by their Creator (no attribution required), or whether they originate in the sovereign will of Parliament. In the British constitution though, they do the latter.

However, we have these two principles at work (democratic authority on the one hand, and a bottom line of respect to which all are entitled as individuals on the other), both of which are essential to the workings of a civilised society.

Sometimes, as in all human interaction, people may make mistakes in how that balance is drawn - Nick Herbert gives some examples in his speech, some of which I would agree with and some I would not. There are also, as he says, severe dangers in attempting to expand this rights language to cover socio-economic and environmental rights. The due representation of these supplementary pseudo-rights in the political process might or might not be desirable, but if it is they should not be expressed in the same language as the fundamental rights to which I have referred above. That would devalue the kernel of human dignity comprising the core human values set out in the Convention. Such supplementary rights would also be unjusticiable.

Amen to his call for respect to be given to human rights where they are most challenged in the world, and the perspective that that might give to our own preoccupations: and a reminder of how lucky we are in the UK, and indeed in the western world (including all the signatories of the Convention) to have politicians who, for all their shortcomings, at the end of the day will have the best interests of their citizens at heart, and consequences where they do not. These are rights to be defended.

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