The European Convention of Human Rights is developed and interpreted as times change; but is there a democratic imbalance when only lawyers and judges can do this? Particularly where the rights being litigated are not just matters of strict law but properly political issues.
It is a valid democratic concern that the Human Rights Act, which brought the European Convention into our own law, may encourage political questions to be converted into legal questions, taken to an unelected judge rather than to Parliament. Such wider political questions affect not just the rights of the individual but of society at large – and many consider that their voices on such matters are not being heard in the appropriate forum: Parliament.
Lord Bingham asked of the Human Rights Act, ‘Which of these rights, I ask, would we wish to discard?’ There have been very many important and good decisions reached with it, which might not have been without it. It is a sign of the importance of individual rights that no-one is suggesting that the Human Rights Act be repealed without replacement. What is at issue is the extent to which reform can achieve the balance between the courts protecting individual rights, and Parliament determining the contents and limits of broader social rights and privileges.
The quite proper concern is that the widely drafted Convention rights have drawn our judges into considering or deciding intensely political questions, such as the right to die, prisoner voting, gay marriage, the lawfulness of life sentences, the registration requirements for sex offenders, the banning of hunting with hounds. The conversion of political questions into legal questions may have the long-term consequence of putting social and political rights into the hands of the (very) few; a decision on a given question may be decided by no more than 1 High Court judge followed by 3 Appeal Court judges and 5–7 Supreme Court judges. Those judges are drawn from a very narrow sector of society. It is fair to ask whether we are potentially going back to the days when only a privileged minority could decide upon what our rights should be. And even then, there is no reason why judges should be seen automatically as the guarantor of our rights rather than Parliament and the judiciary together.
We are assured that Parliament remains sovereign and, correctly, that the judges cannot override its laws. But if we cannot leave the European Court of Human Rights and/or reform the Human Rights Act to change the focus of the rights expressed, then what is left of Parliamentary sovereignty and of the role of Parliament as the First Court of Human Rights?
Broader social rights in the UK have put down roots when passed by Parliament, and where opponents of a measure are democratically defeated in public argument and public vote. Women’s rights over their own bodies and those of gay people to marry have been decided in Parliament rather than the courts as in America. Controversial rights are more likely to become socially embedded by being achieved politically rather than judicially.
These are good reasons for exploring reform where it is considered that the current apparatus fails to command widespread public support and lures-in judges to decide political questions. It is not necessary to imagine here what are the answers; options could be as narrow as refining the nature of the rights that the courts should protect or as wide as changing the forum in which such matters are decided to a constitutional council containing lawyers and laypersons.
Above all, those who support reform do not want to destroy human rights but to ensure that they are more specifically tailored to our political system, our history and for them to command broad public support. As was once famously said, ‘Reform that you may preserve’. It may truly enable us to bring rights home.
Elliot Gold is a barrister.