Negotiable Rights, What Rights?

Date01 May 2012
AuthorTom Hickman
Published date01 May 2012
Negotiable Rights,What Rights?
Tom Hickman*
Grégoire C.N. Webber,The Negotiable Constitution: On the Limitation of
Rights, Cambridge: Cambridge University Press, 2009, 217 pp, hb £55.00.
The argument defended in The Negotiable Constitution is ‘that the limitation of
rights should remain open to democratic renegotiating by the legislature’ (vii).
The book offers an alternative account of how limitation clauses in bills of rights
and international instruments operate to that which is described in the book as
the ‘received approach’.The received approach,Webber says,views limitations on
rights as departures from rights and, so viewed,are to be nar rowly construed. In
addition, for the received approach the question whether departures from rights
are legitimate is characteristically regarded as suitable for determination by courts.
The Negotiable Constitution posits a different understanding of limitation clauses
as a vehicle for constitutional evolution by the legislature and as supporting a
constitutional model which leaves it up to legislatures to determine the scope and
content of rights and to determine whether leg islation transgresses the bound-
aries of ‘fundamental rights’. On this view, courts should have no significant
power to review legislation in order to protect rights. However, as we shall see,
the implications of the argument are even more far-reaching, amounting to a
defence of a legal and political system in which human and civil rights would be
‘negotiable’ and would not be recognised even as having presumptive or prior
importance as legal – or apparently even moral or political – norms.Although this
raises profound questions about the nature of ‘rights’ themselves,the main target
of the book is the division of powers between courts and legislatures, and the
question of whether courts should have a role in defining and defending civil or
political rights or whether, as Webber argues, rights should be defined by the
The question of the respective competence of the judiciary and Parliament to
determine the scope of fundamental rights is now prominent in the UK, for
instance in debates over privacy injunctions and prisoners’ voting rights. The
debate over prisoners’ rights is already to be credited with the Prime Minister’s
statement to Parliament that it made him feel ‘physically ill’ to comply with a
ruling of the European Court of Human Rights that the UK ban on prisoners
voting is contrary to their ECHR rights.1The Prime Minister has also ‘waded
into the debate’ on the law on privacy, stating that:
*Barrister, Blackstone Chambers.
1 HC Deb vol 517 col 921 3 November 2010. Hirst (No 2) vUnited Kingdom (2006) 42 EHRR 41;
Greens & MT vUnited Kingdom,Apps Nos 60041/08 and 60054/08, 23 November2010 (giving the
UK a six month time limit to amend the Representation of the People Act 1983).
© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(3) MLR 437–454
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
The judges are creating a sort of privacy law, whereas what ought to happen in a
parliamentary democracy is parliament – which you elect and put there – should
decide how much protection do we want for individuals and how much freedom of
the press and the rest of it. So I am a little uneasy about what is happening.2
He added that he did not have the answer and that he needed to do ‘some more
thinking about it’. One strongly suspects the Prime Minister would like what
Grégoire Webber has to say about it. In arguing for legislatures to determine
individual rights,Webber’s book represents a timely contribution to this increas-
ingly significant national debate.
The book begins with an analysis of limitation clauses. Since the argument
presents itself as challenging the ‘received approach’, our star ting point must be
Webber’s characterisation of that approach.
The received approach takes the underdetermined guarantee ‘everyone has a right to
Ø’ as providing an encompassing right for all to all that is related to Ø. Limitless
instances of activity are said to be protected by the right, with the result that the
charter of rights extends everywhere and to everything. For example, it is often
contended that the open-ended guarantee ‘everyone has freedom of expression’
grants to ‘everyone’ the freedom to express anything,anytime, including the freedom
to perjure oneself, publicly to advocate and privately to incite and give instructions
for the violent overthrow of the government, and to disclose State secrets of the
highest order.The all encompassing meaning of constitutional r ights is said to be
settled by the constitution itself – subject to interstitial judicial updating under the
guise of re-interpreting the meaning of a ‘living constitution’. The constitution’s
meaning is fixed and not subject to challenge or completion by the political process
. . . As a consequence the state is constantly infringing or violating constitutional
rights; each legislative Act is bound to conflict with one or more of the limitless
rights in the constitutional. The legislature is thus identified as the antagonist of
constitutional rights (2–3).
This summary is permeated with assertions about the ‘received approach’ that
recur throughout the book and which underpin Webber’s dissatisfaction with it.
These assertions are, however, questionable to varying degrees. The suggestion
that a right to Ø provides a right ‘to all that is related to Ø’ goes too far.
Self-evidently, a right to respect for private life does not confer a right to do all
that is related to one’s private life, even presumptively. And yet this view of the
extraordinary breadth of rights underpins Webber’s belief that they are infringed
by almost all instances of legislative and administrative action. This leads to his
further conclusion, discussed below, that the interests protected by fundamental
rights (such as private life) are so vague as to be impossible to value.It is also allied
2 ‘Pr ivacyLaw should be made by MPs, not judges,says David Cameron’ The Guardian21 Apr il 2011.
Possibly reflecting the degree of general public interest in the debate, the comments were made to
assembled on-lookers during the tour of a car factory in Luton.
Negotiable Rights,What Rights?
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
438 (2012) 75(3) MLR 437–454

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