Human Rights and the House of Lords
| DOI | http://doi.org/10.1111/1468-2230.00199 |
| Author | Rt Hon Lord Hoffmann |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
THE
MODERN LAW REVIEW
Volume 62 No 2March 1999
Human Rights and the House of Lords
Rt Hon Lord Hoffmann*
The coming of the millennium is traditionally associated with a belief, going back
at least to the Books of Daniel and Revelations, that the Kingdom of Christ or some
other just ruler will be established, there will be peace and plenty upon earth, and
those who have been unjustly treated will receive their rightful rewards. By way of
encouragement of this belief, the Government have made the theatrical gesture of
timing the coming into force of the Human Rights Act 1998 to coincide with the
beginning of the new millennium. The press has cast the Law Lords in the
improbable role of being the just rulers whose reign the Act will establish, the
Platonic guardians, as Judge Learned Hand called them, who will put the nation to
rights from the reformed House of Lords or, perhaps more probably, from a new
Supreme Court established in some office block in the Strand. In anticipation of
this accession of power, there have been analyses of the views and predilections of
individual Law Lords, and they have all been issued with convenient party badges
saying liberal, conservative, middle of the road and so forth.
I am bound to say that I do not see it that way at all. I suppose the image which
some people have of the future of our supreme court, whatever it may be called,
after the coming into force of the Human Rights Act, is based upon the model of
the Supreme Court of the United States and to some extent the Bundes-
verfassungsgericht or Federal Constitutional Court of Germany, these being the
courts engaged in the interpretation of basic rights which are closest to hand. And
there is no doubt that both those courts have given decisions, based upon
constitutional provisions, with a high political content. One has only to mention the
American decisions on race segregation and abortion and the German decisions on
the Maastrict treaty and the use of the German armed forces abroad. So it is
assumed that once the House of Lords has got its feet under the constitutional table,
it will find itself having to resolve similar highly charged issues.
I think that this assessment ignores some very considerable differences between
this country on the one hand and the United States and Germany on the other. I put
aside at once the technical distinction that the American and German courts can
declare acts of the legislature to be unconstitutional and void whereas the Human
Rights Act, in deference to the theory of the sovereignty of Parliament, allows the
UK courts only to declare that legislation is incompatible with the European
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 159
* A lecture delivered to the Common Law Bar Association on 25 November 1998.
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