Only judges, not MPs, will defend human rights

Only judges, not MPs, will defend human rights

By Vernon Bogdanor

January 18 2012 12:01AM

We should have more faith in the courts than Parliament to protect unpopular minorities

Judges, Francis Bacon believed, should be lions but “lions under the throne”, “circumspect that they do not check or oppose any points of sovereignty”. But, in Britain, the sovereignty of Parliament has come to be qualified by the rule of law, as exemplified in the Human Rights Act. What happens, I once asked a senior judge, if the two principles conflict? “That”, the judge replied, smiling, “is a question that ought not to be asked.”

But it has now been asked by the newest member of our Supreme Court, Jonathan Sumption, who believes that judges are in danger of becoming too political. Lord Sumption recently warned that the Human Rights Act (HRA) has moved issues such as immigration, penal policy, security and policing, privacy and freedom of expression “out of the political arena altogether, and into the domain of judicial decision-making where public accountability has no place”. Judges, not politicians, are coming to decide if prisoners should vote, or sex offenders be allowed a right of review.

Britain, however, is one of the few Council of Europe member states not to have incorporated the European Convention on Human Rights into its laws. Article 13 of the Convention requires “an effective remedy before a national authority”. Yet that is not part of the HRA. The only remedy if rights are infringed lies at the discretion of Parliament or the Government. Even though we now have a Supreme Court, all it can do is to issue declarations of incompatibility that are, in the words of the LSE law professor Conor Gearty, merely “courteous requests for a conversation, not pronouncements of truth from on high”.

To someone whose rights are infringed, a court can only say that the remedy lies with Parliament or, alternatively, your rights would have been infringed if you had any, but because Parliament is sovereign, you cannot enjoy rights against Parliament.

Our judges have less power, not more, than in countries such as Germany, where they can strike down legislation infringing human rights. But is there any reason to believe that our parliamentarians are so much more sensitive to abuses than legislators in other countries that they, rather than judges, should remain the final court of appeal on human rights matters?

The presumption that a majority, having won power in a free election, can govern as it wishes is dangerous. In Germany, the Nazi Party in two free elections in 1932 secured a higher vote than any other party; while, more recently, Iranians voted in 1980 for a theocratic republic in which human rights are ignored. In Northern Ireland from 1922 to 1972 the Catholic minority were treated as second-class citizens.

Parliamentarians are vulnerable to moral panics. During an IRA bombing campaign in 1974, Lord Scarman declared: “When times are normal and fear is not stalking the land, English law sturdily protects the freedom of the individual and respects human personality. But when times are abnormally alive with fear and prejudice, the common law is at a disadvantage: it cannot resist the will, however, frightened and prejudiced, it may be, of Parliament”. That was why he became the first prominent advocate of a British Bill of Rights.

Of course, large ethnic and religious minorities can ensure that their rights are respected through the ballot box. But many of the minorities protected by the HRA are small, unpopular and vulnerable: asylum seekers, prisoners, terrorist suspects. Only the courts can ensure that their rights are protected. For the Act protects the rights not just of nice people such as ourselves but people who are not so nice, such as Abu Qatada, whose deportation has been stopped by the European Court of Human Rights. (Incidentally, our law lords wanted to deport Qatada.) Lord Sumption also complains that the European convention “has been construed as attributing rights to humans simply by virtue of their humanity, irrespective of their membership of any particular legal or national community”. Echoing Edmund Burke, he argues that “rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community”. Yet, “extremes apart, political communities may and do legitimately differ on what rights should be recognised”.

The Convention was, of course, established as a protest against this sort of cultural relativism. The HRA is founded on the belief that human rights are fundamental and flow from our common humanity, and do not depend on the norms of the community in which we happen to live. These rights are more likely to be protected by judges than by politicians.

British constitutional thinking has traditionally emphasised the sovereignty of Parliament. The time has come to play down that as we journey towards a true constitutional state in which judges come to be the guardians of our fundamental rights.

Vernon Bogdanor is Research Professor at the Institute of Contemporary History, King’s College London, and author of The Coalition and the Constitution (Hart)


Source: The Times (£)