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Sunday, March 20, 2011

Professor Jeremy Waldron shows why Dr Michael Pinto-Duschinsky is a clown!

Professor Jeremy Waldron shows why Dr Michael Pinto-Duschinsky is a clown!

Examination of Witness

Professor Jeremy Waldron, [Chichele Professor of Social and Political Theory, University of Oxford, and Professor of Law, New York University].

The Chairman: Good afternoon and welcome to the Joint Committee on Human Rights. For the record, could you introduce yourself?

Professor Waldron: I am Jeremy Waldron. I hold two positions. I am newly appointed Chichele Professor of Political Theory at Oxford and in the autumn I am a Professor of Law at New York University.

Lord Lester of Herne Hill: I should declare an interest, Professor Waldron, because I learnt my law at Harvard Law School. As you have heard from the previous evidence, the first judgment has thrown into sharp relief the legitimacy of judicial review of legislation, on which you have written extensively. Can you tell us briefly why you think that judicial review of legislation is democratically illegitimate?

Professor Waldron: I should preface my remarks. Much of the argument I have made about judicial review of legislation relates to strong judicial review, whereby a court can refuse to apply a statute that it judges is incompatible with, say, a bill of rights or a constitutional provision, as opposed to weak judicial review, which still leaves the ball in Parliament’s court and does not allow the court to override a statute or strike it down.

Briefly, I think the argument, which has been talked about all afternoon at these tables, is that it is Parliament that has democratic legitimacy. It is true that in some countries there are shreds of democratic legitimacy in the appointment of judges but, compared with the legitimacy of an elected legislature, the position of the courts is quite deficient. I make two points. One is that we live in communities where there are great disagreements about fundamental issues of justice and rights. We disagree about the detail and interpretation of many of the rights. When those disagreements arise there is some thought by those of us on the democratic side that, if these disagreements have to be resolved by majority voting, then they have to be resolved by majority voting among elected representatives rather than majority voting among judges.

The second point very briefly is simply that I believe in our tradition, and in most of the advanced democracies of the world, legislatures have shown themselves capable of dealing responsibly and thoughtfully with issues of rights, bearing in mind that people will disagree sometimes with the decisions both of the courts and the legislatures.

Lord Lester of Herne Hill: I listened very carefully. As I understand your answer, your strictures apply particularly to what you call strong judicial review—the strike-down power of the United States Supreme Court—but they would not apply with the same force in our parliamentary democracy, where our courts, almost alone in the common law world apart from New Zealand, have no power to strike down Acts of Parliament. Am I right about that?

Professor Waldron: That is exactly the distinction I would want to make. Of course, weak judicial review in this sense is a matter of degree and it can vary from a situation where a declaration of incompatibility may be issued and as a matter of convention is almost always complied with or responded to affirmatively by the executive or Parliament, all the way through to, say, a New Zealand situation, where there is no formal provision for a declaration of incompatibility, although such declarations have from time to time been issued.

Lord Lester of Herne Hill: What room is there in your legal philosophy for a situation where the legislature, parliament, is responsible for what John Stuart Mill called the tyranny of the majority? Let me give you a concrete case in which I was once involved. In 1968 our Parliament passed a law that deprived British citizens of East African Asian descent of their right to come to this country, held by the European Commission—on the basis of American case law as a matter of fact—to be an inhuman or degrading treatment or punishment because it was based on race. In your philosophy that is a situation where the legislature has expressed its view in accordance with the wishes of the majority. What room is there in your philosophy for the courts being countermajoritarian and protecting the fundamental rights of individuals or vulnerable minorities?

Professor Waldron: I certainly accept that there has to be such a role. The question is: exactly how is it to be performed? The first thing to remember is that nothing tyrannical happens to me merely by virtue of the fact that a view with which I disagree is made law pursuant to a fair decision. We have to be looking at very specific cases where reasonable people would say there had been a serious act of oppression by a majority. First, I think we have to be very, very careful not simply to use the words “tyranny of the majority” as a bad loser’s riposte to a defeat in the Commons or somewhere else.

Second, everything depends on the mechanism by which the Court can act as a safeguard in these matters. In the United Kingdom, under the Human Rights Act in the scheme of the European Convention on Human Rights, the courts act to issue very important warnings effectively to the polity that, in their opinion, the limits are being transgressed or approached and it should pause and take it very seriously, and there are remedies available for implementing that. That seems to me to be an important function, coupled with the other functions laid down in the Human Rights Act, whereby the Attorney-General is required to give assurances that legislation conforms to the human rights provisions and so on. It is a spectrum of warnings. Sometimes the warnings are politically effective; sometimes they become effective by virtue of a convention of the constitution that declarations will always be affirmatively responded to, but it does seem to me to be a further matter to say that the courts should have the power, either by law or custom, to remove statutes from the statute book or strike down legislation.

Lord Lester of Herne Hill: That is very helpful. Our system is what you might call holistic, as you know, in that all three branches of government, judicial as well as the political, are bound to give effect to human rights. This Committee acts as a kind of buckler of the system in scrutinising compliance, questioning Ministers and reporting to Parliament, so our system is not judge-based in the sense that the United States system is judge-based. As I understand it, what you are saying is that that would accord broadly with your own theory, but could you explain how you would describe the different functions of the legislature from those of the courts in a case involving the tyranny of the majority in, if you like, one of those clear cases like the Nuremburg laws?

Professor Waldron: Indeed. We set up legislatures. First, we do not just take a quick poll among the members of an elected chamber on some issue; we set up enormously intricate procedures of legislation. Second, we insist that legislatures have a bicameral structure. Most advanced democracies have a second chamber. Noble Members present know from their experience that the House of Lords, the second Chamber, acts to scrutinise legislation with this sort of thing in mind along with others, such as issues of public policy as well as issues of justice and rights. You set up committee structures, such as this Committee, to address these matters. All of these are ways whereby the representatives of the community, elected and unelected, can address real concerns that may attend any piece of legislation.

That may become worrisome if legislation is rushed through or the deliberate slow procedures of Parliament short-circuit it, as they do sometimes—I have to say to my shame—in New Zealand where the unicameral legislature often legislates under urgency without the safeguards we are talking about. I believe that the process of scrutiny is important. I know that committees have no power to impose their will on Parliament, but certainly the second House can hold up legislation. I believe that the traditions of a parliament can certainly involve ways of checking and ensuring that, if there is any question about fundamental rights being abused, those questions are properly addressed.

Lord Lester of Herne Hill: I hope you persuade the Government and Parliament of the country you come from to adopt a committee like this one.

Lord Dubs: Does the current debate in the UK about whether to repeal the Human Rights Act and withdraw from the European Convention cause you to question whether we have a stable commitment in this country to the idea of rights?

Professor Waldron: I have certainly been astonished by the way the debate has flared up in relation to the issue arising out of the decision in the Hirst case. I had not realised there was that amount of resentment bubbling up beneath the surface of the administration of fundamental rights in the United Kingdom, so I am a little shaken by this. I had assumed—it was one of the things I grew up with—that the British Parliament had shown itself throughout the 1960s and 1970s capable of legislating and deliberating very carefully and thoughtfully on issues of rights. That was before
the Human Rights Act and they were addressing capital punishment, issues related to abortion and the decriminalisation of homosexuality. I go back and read those glorious debates and they show a Chamber that appears to recognise what it is like to debate issues of rights, to take a right seriously, to be profoundly aware of the interests that may be at stake and the interests that it is inappropriate to put in play against rights, to be aware that popular prejudice is not a reason for limiting a right and to be aware of the genuine interest that may sometimes have to be appealed to in order to limit a right. You read those debates and get a sense of that shared awareness in the Chamber. It would be a very sad thing if that legislative ethos of taking rights seriously were to be shaken. I hope that the wild proposals about withdrawing from the Council of Europe are not evidence of that, but I fear they might be.

Mr Sharma: In your writings you describe the right to participate in the democratic process as a right of rights. What do you mean by that?

Professor Waldron: It is a phrase from a tract written in 1829 by William Cobbett, Advice to Young Men. He said that we had rights of all sorts: property rights, personal rights and rights of liberty but they all depended on law and the right of rights was the right to have a say in the making of the laws. It is a right that conditions all the others and gives them their democratic flavour. I think that is an important insight. The phrase is not mine; it is his, but it is supposed to indicate that this is a kind of meta-right, a right that underpins the other rights. It is a little like the right of access to the courts, or the right of access to law or representation generally. It is a systemic right and is important for the relationship between a person and a legal system.

The Chairman: You gave examples of Parliament taking rights seriously in its debates back in the 1960s and 1970s. If you scroll forward, are there any other examples you can think of in more contemporary times?

Professor Waldron: There you catch me out. I have been living in the United States for 25 years now and I have not followed recent debates on these matters. I would hope there were, Dr Francis, but I am not sure.

Mr Raab: I wanted to ask you to answer the same question. First, I am just curious as to whether you have read the debate in the House of Commons on prisoner voting. The thrust of the concerns related less to prisoners getting the right to vote and the issue of judicial legislation, which might arguably be an example of the adage you just quoted about access to law-making. The President of the Supreme Court has said openly that it is open to that court to refuse to follow Strasbourg rulings and send them back to Strasbourg. If that is the case on a matter of interpretation of law, thinking back to your explanation of hard and soft judicial activism, surely it ought to follow also as a matter of principle that where you have judicial legislation, Parliament and the elected lawmakers can say the same thing.

Professor Waldron: The constitutional position, as I understand it, is that in the end Parliament has control over the legislation that prevails in the country. The executive has entered into a number of obligations, which will affect how Parliament can discharge that task. I read the debate in the House of Commons. It was a very lengthy one, as you know, and very interesting. It is worth remembering a couple of things. It was not a legislatively focused debate, and I think that is very important. It was an excellent debate as far as it went but it was not legislatively focused, whereas the debates I was talking about relating to the Bill on the medical termination of pregnancy and the measures for the repeal of capital punishment and so on were all focused. They were Second Reading and Committee stage debates on matters of legislation. I believe that the procedures for legislation are very important.

Perhaps I may make one other point about something I found missing from the Commons debate on prisoner voting. The position that I defend, the misgivings I have about judicial review and the democratic basis that I embrace as a foundation of that position run into their deepest challenge when the majoritarian institution is actually addressing the basis of its own electoral credentials. It runs into the deepest challenge where the parliament is actually addressing the right to vote and the integrity and continuance of the electoral and democratic process. In the United States—this is not a position to which I subscribe but a great many people do—it is said that the strongest argument for judicial review, or a judicial check on legislative activity, is when the legislature is somehow messing with the basis of representation, because that means the legislature itself is beginning to call into question the only basis of legitimacy that it has in these matters. Parliament’s legitimacy and supremacy in our constitution is not based upon history and is not an abstract proposition; it is based on the fact that the leading part of Parliament has electoral credibility. Parliamentary decision-making and legislation is legitimate because people have the right to vote, not the other way round. Parliament is a guardian of that.

Mr Raab: I think the matter that activated a lot of people was that this was a new right in the sense it was not in the Convention. It was clear from the travaux that it was not intended and it arose even under Hirst in 2005. Therefore, I do not think Parliament felt it was tinkering with the electoral system but the other way round. I wonder whether that affects or influences your perspective.

Professor Waldron: It is a fair point. We are also bound by the International Covenant on Civil and Political Rights, Article 25 of which requires in much clearer terms than the ECHR protocol the individual right to vote. The United Kingdom signed and ratified that treaty. So, it should have come as no surprise to them that, as a democracy and a signatory to this great worldwide human rights instrument, it was bound to respect the right to vote.

Mr Raab: Do prisoners vote in the US?

Professor Waldron: In some states they do and in many they do not.

Mr Raab: So, the US is in flagrant violation of the ICCPR.

Professor Waldron: There is no doubt about that, although the US almost certainly entered a reservation when it acceded to that treaty. The reservation itself might be dodgy, but you are absolutely right.

Lord Lester of Herne Hill: To be precise about it, it was the first protocol to the Convention that introduced what is called the political democracy guarantee, from which the right to vote has been interpreted. As you say, in 1976 when we ratified the ICCPR we built upon that. But is it not right that under our constitutional system, as in New Zealand as well, we have an international obligation binding upon all three branches, including Parliament, to abide by our treaty obligations? Therefore, although we talk about parliamentary sovereignty that must be exercised in a way that is also compatible with the law of the land; it is part of our international legal obligations.

Professor Waldron: Yes, I agree with that entirely. Part of the point of being a sovereign is that you take on obligations. Both the ICCPR and the European convention are obligations. Certainly, the ICCPR is and always has been quite explicit about the right to vote.

Lord Dubs: I wonder whether I might stay with the prisoners’ right to vote case. I know you have talked quite a lot about it. In your personal view do you think there can be any restrictions on a prisoner’s right to vote in a democracy, or should there be?

Professor Waldron: As a personal matter, I think not. This is such a fundamental right, the right of rights, that the grounds for limiting it would have to be very serious indeed; so the issue of proportionality looms very large. I know people differ on these matters, but since we believe that the most fundamental rights should remain with prisoners even during their incarceration, the notion that we can take this one way just because it seems easy to do it is, I think, a serious mistake.

Lord Dubs: Therefore, you think that Parliament should accept the Hirst judgment.

Professor Waldron: I think Parliament should accept the content of the Hirst judgment. If it were up to me, this is something that Parliament would arrive at by its own motion.

Lord Dubs: You mentioned that you read with interest the debate in the Commons, although you did say it was a debate about opinion rather than a debate leading to legislation.

Professor Waldron: Yes.

Lord Dubs: What do you think the courts should do if Parliament held a full and conscientious debate leading to a legislative position, but decided by a majority to uphold the current ban on the right to vote?

Professor Waldron: The current blanket ban on the right to vote?

Lord Dubs: Yes.

Professor Waldron: Presumably it would do so pursuant to a Section 19 assurance by the Attorney-General that it was compatible, or not? What would you have in mind?

Lord Dubs: Presumably, yes.

Professor Waldron: The first thing is to imagine what the Strasbourg Court would and should do. I imagine that Court would hold that that was unsatisfactory and rule against us again. The British courts would be bound to take notice of that ruling and might themselves reach the judgment, even independently of Strasbourg, that this was incompatible with the protocol. It seems to me that then you would have a very serious confrontation on this issue. The role of the Court, at the very least in these circumstances, would be to alert the public that this was not a trivial matter but a hugely important one, and not a right to be taken away lightly and have that warning. To move to a system where no such warnings were countenanced within the constitutional system—this is where I am in agreement with Lord Lester—would, I think, be a grave mistake.

The Chairman: Thank you very much for your evidence.

(Source: Uncorrected transcript)

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