America is a timely reminder that law is not an adequate substitute for politics
There is a tension at the heart of any system of extra-political enforcement of ‘fundamental rights’. The system is set up to guard against future shifts in political opinion, but requires broad consensus to operate legitimately, which can be destroyed if it fails to keep up with public opinion.
Witness the United States, a deeply divided society with no common consensus on the nature or extent of the rights provided by its Constitution.
Thus, decisions on issues such as freedom of expression, firearms or abortion, rather than safeguarding common values against the vagaries of the political moment, end up systematically representing the triumph of a part of the nation on the other.
(John Roberts, the Chief Justice, seems to have gone to great lengths to try to avoid this, with the Court’s perceived legitimacy being his primary concern. But accounts of his conduct, sympathetic as they are, reveal decisions that owe much more to political positioning than detached legal advice.)
In the UK, we have, for the most part, avoided this dynamic. Our abortion law, to choose the subject of the daywas settled by Parliament in 1967 and does not draw much public anger today, although polls suggest voters’ views are sometimes leaning towards tighter restrictions.
But there are certainly echoes of it in the slow drumbeat of anger at the growing role of human rights law and the clashes between politicians and our own Supreme Court (one of the sad American postings of the New Labour) during the last legislature.
Similarly, the broad outlines of American frustration with Roberts’s caution can be traced in the sharp criticism leveled at Lord Reed, the Chief Justice, for taking a different approach to scrutiny than Lady Hale. judiciary of government decisions. High legal concerns about the process often seem to turn into direct political and moral debates about the results.
Such distortions are very common in debates on codified rights. For example, you will very often hear critics of the UK joining the ECHR cry out with cries of “But Winston Churchill signed it!” »
This is misleading on two counts. The simplest is that Churchill didn’t actually sign Britain under the jurisdiction of a foreign court – it happened under Harold Wilson.
And this leads to the second and more substantial one, namely that accession to the ECHR not simply imply acceptance of the general principles of the Convention. Rather, we must adhere to a detailed and ever-growing body of Strasbourg case law, rendered by judges over whom we exercise even less democratic control than the obscure subjects of the American Constitution.
In a way, it’s an example of a ‘motte and bailey’ argument, with lawyers and activists continually pushing the boundaries of Strasbourg’s jurisdiction – such as the decision that it now governs military operations in abroad – while retreating behind the supremely blameless “do not be the founding document of the Nazis when challenged.
Although at least the Convention is an explicitly drafted and ratified document, from which the UK could opt out, and the US Constitution has formal avenues of amendment even if this nation is too divided to pursue them.
There is a school of thought in this country that holds that judges should uphold “common law rights” that sit outside and above the sovereignty of Parliament! In practice, this would mean that the balance of opinion in an ill-defined milieu of jurists and judges would supplant our political institutions as the most powerful force in the land.
This would perhaps be the ultimate example of one of the most pernicious characteristics of this whole phenomenon: the tendency to hide the debates on this should bewhich are inherently political and should be open to all in a democratic society, such as technical debates on what is the casewhich give a privileged role to lawyers, academics and other experts (as well as to those who have the money to carry cases).
America again serves as an example. How much breath has been wasted discussing what the wording of the Second Amendment might or might not mean, rather than the actual question of what is sensible gun policy? Trying to find a “right to privacy” in the constitution, rather than just advocating for a sensible abortion law?