The Passing of Ronald Dworkin - CounterPunch
"The Universal Declaration [of Human Rights] and the European Convention were the products of the horrors of fascism which led to World War II and the Holocaust. One of the recitals to the to the former records that 'disregard and contempt for human rights have resulted in barbarous acts which outraged the conscience of mankind.' The intention of these instruments was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field." 4
18/02/2013 · The Passing of Ronald Dworkin
"When we joined, indeed, took the lead in the negotiation of the European Convention, it was not because we thought it would affect our own law, but because we thought it right to set an example for others and to help ensure that all member states respected these basic human rights which were not culturally determined but reflected our common humanity." 5
Is the enforcement of "human rights" by judges elitist and anti-democratic? Is it right that we now regularly see unelected judges interpreting vague language in a constitutional document to override the clear will of the majority?
This is not a contention made only by the editors of London's notoriously right-wing press. It is also the contention of several members of the Senior Judiciary. Lord Sumption, a Justice of the United Kingdom Supreme Court since January, 2012, has argued recently that the historic judicial deference courts in the UK must show to Parliament cannot coexist in a regime where judges are also asked to determine the parameters of fundamental human rights. In Lord Sumption's view, the human rights project inevitably ends with judges making political policy choices that should have been left to Parliament. In a lecture given in 2013 in Kuala Lumpar, and later published (along with critiques by a variety of constitutional scholars) by Bloomsbury Press, Lord Sumption argues that courts in this country are increasingly becoming "constitutional" courts in the manner of the United States Supreme Court.1 He cites de Tocqueville's well-known observation in Democracy in America in 1835 that ". . .scarcely any political question arises in the US that is not resolved, sooner or later, into a judicial question," and predicts that this is an inevitable result of a constitutional system where judges must determine "human rights."2 In Lord Sumption's view, that inevitably results in a decay of democratic institutions, and creates anti-democratic tensions in the guise of "rule of law."
This debate is vitally important to those who practise in the field of family law. Perhaps no other European Convention right has been more controversial, or the subject of more litigation, than Article 8's requirement that member states "respect the family life" of all European citizens. The current Tory government promises to repeal the Human Rights Act 1998, and replace it with a "British Bill of Rights." It would appear, however, that Lord Sumption's arguments apply equally as forcefully to judicial interpretation of a similar provision in any UK Bill of Rights.
Lord Sumption is critical of UK courts for intruding on Parliamentary sovereignty, but he reserves most of his venom for the European Court of Human Rights. The Court, according to Lord Sumption, ". . .has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying."3 The essential error that has led the European Court astray, according to Sumption, is the Court's view that the European Convention is a "living instrument," and that therefore courts should not seek to discern original meaning of the Convention's Articles by, for example, examining what the framers of the Convention believed at the time the document was drafted. Sumption contends this approach is not consistent with the way judges have traditionally sought to interpret written documents, is not consistent with our understanding of the rule of law, and gives rise to a democratic deficit in important areas of social policy. In particular, Sumption cites the US experience with abortion, where the Federal Supreme Court outlawed state laws unduly regulating (and in some states, prohibiting) abortion. In Sumption's view, these inevitably controversial policy decisions should have been left to the various legislative bodies that had jurisdiction.
Though Lord Sumption does not explicitly say this, the inevitable end point of his analysis is that the Human Rights Act 1998 is simply unconstitutional, unless judges defer absolutely to the will of Parliament. The Act (and any UK Bill of Rights that replaces the HRA 1998) requires judges to make decisions that in Lord Sumption's view the United Kingdom's unwritten constitution would mandate should have been left to Parliament. It would inevitably seem, given his views, that he contends the UK should withdraw from the European Convention itself, and should not trouble with any new-fangled British Bill of Rights. After all, a "constitutional" document will inevitably cause the same problems for the judiciary, whether it is called the European Convention or the British Bill of Rights. Either document will require judges to balance "rights" against the will of Parliament or the wish of the executive.
The question, for Sumption, is this: who gets to decide? In his view, significant policy decisions should be left to Parliament, and there would appear to be no room for courts to use human rights analysis to overturn those decisions. No rights are wholly unqualified, and must be constrained to a greater or lesser extent by the rights of others. Parliament should be the ultimate arbiter of how those rights are qualified.
Lord Sumption's view is not without support from other members of the senior judiciary. Lord Scott, in the 2003 case of , a case where claimants were tenants about to be evicted from local authority housing, said this: