Coffee House

Reform human rights to save human rights

3 April 2013

5:31 PM

3 April 2013

5:31 PM

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 It is a sign of the importance of individual rights that no-one is suggesting that the Human Rights Act be repealed without replacement.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.

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Show comments
  • allymax bruce

    ‘Reform human rights, to save Human Rights’
    Yes; and abolish Labour’s evil Equality legislation.

  • Chatterclass

    The problem with your argument is that human rights in a democracy act to protect minority rights against the will of the majority. For that reason (and that human rights are the closest thing we have to a written constitution), it is right that judges should make the relevant decisions. This is especially relevant when we have limited separation of powers and the executive dominates the legislature. The decisions that the judges come to might not be popular, but nor should they be.

    • Hookeslaw

      The decisions should be ‘just’ and they are not.

      • Chatterclass

        I was not responding to your post but to the article. However, all laws are constantly (although slowly), developed and interpreted by judges, in all jurisdictions, other than some dictatorships and one party states. The question is, what is ‘just’. Surely it is better to have a system based on a rule of law, rather than particular popular opinion. What if a govt. decided to bulldoze your neighbourhood, without consultation, and maybe throw you in prison without evidence or due process, because, say, it was a terror threat. And they whipped up the right wing press, who agreed. And public opinion said ‘imprison them!’. Wouldn’t you want the protection of the law? And if they passed regulations to allow them to do so (without even needing a parliamentary vote or scrutiny), wouldn’t you again want protection? Unfortunately, although this may seem like a far fetched fantasy, we have little protection. Luckily, we do have the law.

  • Roger Hudson

    The Act never set out a method for determining what to to when two plaintiffs rights oppose each other, the whole basis of English common law was to balance conflicting rights, we need to totally reform our basic rights legislation

  • Denis_Cooper

    The UK government should derogate from Article 46(1) of the Convention.

    That’s the part that says:

    “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”

    Sixty-odd years ago all the main UK political parties agreed to give that hostage to fortune, apparently without thinking that the Court might gradually develop its case law and apply it to the UK in ways that Parliament didn’t like, but now maybe the time has come to say openly and honestly that the UK is no longer prepared to be bound by that Article.

    Rather than agreeing that the UK shall be bound in all cases but then trying to wriggle out of complying in some cases, the only honest, clear and workable response is to derogate from Article 46(1) in all cases.

    • telemachus

      Just finished reading about the Morinj camp and wonder if some countries may wish to derogate from article 3

  • Hookeslaw

    We have a right to defend ourselves and when others seek to undermine us, attack us and destroy us then they must expect limits to the way we honour their human rights.

    It would be a mistake to unilaterally leave the Human Rights Act without somevery extremee provocation. No matter what the headlines we are not there yet. The convention was established by treat and the treaty needs changing. The mission creep of those who interpret it should stop.

  • Smithersjones2013

    No the HRA/ ECHR has caused far too much trouble and far too much expense (much of it making Barristers excessively if not obscenely wealthy).

    Scrap the HRA and withdraw from the ECHR which is not fit for (our) purpose.

    And for Elliot Gold’s (what an appropriate name for someone who likely earns so much) enlightenment the government legislation in favour of creating privileged status for certain groups in society is increasingly creating a sense of entitlement within those groups that is undermining the stability and advancement of our society not least by distracting the political classes away from the most pressing issues facing us.

    • salieri

      Apart from the dig at his name, and the (forgive me) rather facile assumption about barristers’ earnings, I agree with you. The comment which strikes me most is that “no-one is suggesting that the Human Rights Act be repealed without replacement”: to which I would add, more’s the pity. Enshrining these worthy but ultimately meaningless Articles of faith in English law has been an utter disaster – as Tony Blair was warned it would be in 1998, only more than anyone possibly imagined. The fact remains that every right or privilege has the ability to infringe someone else’s. English common law used to recognise that differences between people need to be sensibly accommodated, not eliminated. Gesture politicians don’t understand this and don’t care.

      • Hookeslaw

        We would not normally agree to torture and we would not normally want to send someone to be tortured. We do not need the Human Rights Act or the ECHR to tell us that – we are civilised people. It brings other less previously civilised nations up to our level.

        But for instance during the last war we no doubt tortured spys and ‘terrorists’ in some way; we bombed Germany; and we shot spies. Our national survival depended on it.

        We are in a war now, we are violently threatened. I believe the ECHR allows some leeway in those circumstances. The interpretations of the convention by fatuous judges is our problem.

        And in the most obvious case in question we have determined that torture would be explicitly prevented. I think that not only is the right on our side but as Albert Steptoe would add, ‘the knobs are on our side’ as well.

      • Colonel Mustard

        I wish your comment could be drummed into the heads of MPs in Westminster, who seem to have lost all appreciation of a precious legacy they were responsible for.

    • Deborah Croft

      Yeah, the HRA and the ECHR are not fit for any dictator’s purpose. Hence the HRA should be scrapped and withdrawal from the ECHR is necessary.

  • Philip Painter

    Surely this argument could apply to many laws? I’d prefer to keep the politicians out of interpreting the law. If it’s badly framed they should pass another law.

    • Lamia

      If it’s badly framed they should pass another law.

      That is what reforming the Human Rights Act would be doing. And yet you seem to disagree with that.