The Human Rights Act and Parliamentary Democracy

AuthorK.D. Ewing
Date01 January 1999
DOIhttp://doi.org/10.1111/1468-2230.00192
Publication Date01 January 1999
LEGISLATION
The Human Rights Act and Parliamentary Democracy
K.D. Ewing*
The Human Rights Act 1998 is the culmination of an aggressive campaign for the
incorporation into domestic law of the European Convention on Human Rights, a
campaign in which the judges joined forces with other political activists. Variously
described as ‘brilliant’;1‘a masterly exposition of the parliamentary draftsman’s
art’;2and even ‘a thing of intellectual beauty’,3the Act has also been greeted as an
‘ingenious compromise’ between the ‘maximalists’ and ‘minimalists’, the former
supporting a judicial power to invalidate legislation, as is the case in Canada.4But
although it is purported to reconcile in ‘subtle’ form the protection of human rights
with the sovereignty of Parliament (a claim even more credible after an important
but unsung Commons amendment), the Act also represents an unprecedented
transfer of political power from the executive and legislature to the judiciary, and a
fundamental re-structuring of our ‘political constitution’.5As such it is
unquestionably the most significant formal redistribution of political power in
this country since 1911,6and perhaps since 1688 when the Bill of Rights
proclaimed loudly that proceedings in Parliament ought not to be questioned or
impeached in any court or any other place. In the words of Baroness Williams of
Crosby, we have crossed our ‘constitutional Rubicon’,7at least to the extent that
the courts may now declare a statute incompatible with Convention rights.
The enactment of the Human Rights Act 1998 was marked by an unusually high
quality of debate, particularly in the House of Lords, with powerful performances
by the Lord Chancellor and Lord Lester of Herne Hill. The performance of the
latter on one occasion was too much for Lord Campbell of Alloway, unaccustomed
it seems to cerebral rather than ceremonial contributions in their Lordships’ House.
Lord Campbell was heard to protest (in a manner dubbed ‘offensive’ by Lord
Ackner)8about ‘these escoteric lectures on law at this time of night’, having ‘never
heard anything like this after dinner’ in the 18 years he had been in the Lords.9He
had better get used to it: the law and the lawyers are about to dominate all the
debates, at all times of the day and night, before and after every meal time. Indeed
in the Second Reading Debate on this Bill in the House of Lords – ‘full of
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 79
* School of Law, King’s College London.
1 HL Deb vol 582 col 1256 3 November 1997 (Lord Scarman).
2ibid col 1234 (Lord Kingsland).
3ibid col 1286 (Earl Russell).
4 HL Deb vol 583 col 1112 27 November 1997. On Canada see T. Ison, (1997) 60 MLR 499.
5 J.A.G. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1.
6 See HL Deb vol 582 col 1234 3 November 1997 (Lord Kingsland).
7ibid col 1298.
8 HL Deb vol 583 col 829 24 November 1997.
9ibid cols 827–828. He was also heard to complain ‘why we have to be entertained for 20 – something
minutes with cases from here, there and everywhere totally defeats me’.
immensely distinguished lawyers from all over the place’10 – serving and retired
judges alone made about one third of the speeches. Only one (Lord McCluskey,
well known for his opposition) spoke against the extension of judicial power which
the Act entails, with even Lord Donaldson of Lymington, a long time opponent of
incorporation throughout the Thatcher/Major years, confessing that he was now
persuaded of the case in favour. This is a matter to which we return.
Bringing rights home
As a democratic socialist party the Labour Party has always recognised the central
importance of civil liberties, human rights and the protection of minorities. Indeed
the Labour Party election manifesto in 1945 proclaimed that the Party ‘stands for
freedom – freedom of worship, freedom of speech, freedom of the Press’,
undertaking to ensure that ‘we keep and enlarge these freedoms, and that we enjoy
again the personal civil liberties we have, of our own free will, sacrificed to win the
war’.11 These sentiments have been expressed periodically ever since, in policy
documents and in conference resolutions, it being acknowledged in 1990 that ‘[t]he
protection and extension of individual rights has always been an essential item on
the democratic socialist agenda’.12 But notwithstanding this commitment to liberty,
the Labour Party has also had an ambiguous relationship with the European
Convention on Human Rights, and a reluctance to entrust the protection of rights to
the judges, hardly surprising for a reforming Party which as late as 1990 saw the
erosion of rights as much the responsibility of ‘judicial intervention’ as
‘government action’.13 Nevertheless it was the post-war Labour government
which in 1951 ratified the treaty,14 and the Labour government of Harold Wilson
which in 1966 accepted the right of individual petition.15
But although Labour governments were prepared to go this far, the Labour
Party still had difficulty with the domestication of the Convention. Private
members bills in the 1980s were opposed by the Party in the Commons, while
Party policy expressly repudiated the introduction of the Convention’s sibling,
namely a Bill of Rights. In the final report of Labour’s Policy Review for the
1990s,
16
the idea of a Bill of Rights was dismissed as not providing the protection
for individual rights which the Party then regarded as necessary, these relating to
the right of every individual to equal treatment; the right to know how the
government takes its decisions; the right to privacy; and the right to protection
against the intrusive state operating through unaccountable security services. A
number of reasons were given for rejecting a Bill of Rights (‘or one of the
variants upon that constitutional proposal which [was then] being canvassed’),
including the fear that ‘it could be repealed by a government with no concern for
individual liberty’, and the need for ‘constant and detailed interpretation by the
courts, with no certainty that its general provisions would protect the most
vulnerable members of the community’.
10 HL Deb vol 582 col 1257 3 November 1997 (Lord Holme of Cheltenham).
11 Labour Party, Let us Face the Future (1945).
12 Labour Party, The Charter of Rights (nd) 3.
13 ibid.
14 See G. Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on
Human Rights, 1950’ (1993) 42 ICLQ 796.
15 See A. Lester, ‘UK Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in
1965’ [1997] PL 237.
16 Labour Party, Meet the Challenge. Make the Change (nd) 55.
The Modern Law Review [Vol. 62
80 The Modern Law Review Limited 1999

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