Rights, Wrongs and Outcomes
Stephen Sedley proposes an agenda for human rights in the 21st century
The end of history seems a good moment to take stock. Fukuyama’s conceit (I mean it in both senses) that the triumph of Western liberalism has stopped the clock of change – has put an end to history – is already waning. We may reflect that human rights themselves have played a sacrificial role in this process, for the demise of the regimes of Eastern Europe was accelerated by a megaphone rhetoric about human rights from states, including our own, with an embarrassing capacity for overlooking human rights abuses among their own allies and clients and even within their own frontiers. The message between the lines has been that human rights are a commodity like any other, capable of being traded for political or economic advantage, and the rhetoric little more than the conduct of politics by other means.
This is not, however, a complaint about the politicisation of human rights. They are by nature political, for they seek to condition how states treat individuals. The reason why we feel able to lecture others about them is that human rights are historically and ideologically the property of the liberal democracies of the West. In their received and accepted form, whether one takes the European Convention or the Universal Declaration as the example, they enshrine values which are universal neither in time nor in place. They are in essence the Enlightenment’s values of possessive individualism, derived from the historic paradigm, which has shaped our world, of the conscious human actor whose natural enemy is the state – a necessary evil – and in whose maximum personal liberty lies the maximum benefit for society. To accept, as we can and should, that this view is rooted in time and place is not to consign it to the bin of relativism, for the same has been and will continue to be true of all historic proclamations of self-evident and universal truths. After all, the two most self-evident truths of life on this planet are that the earth is flat and that the sun goes round it. The truth that all men are created equal was far from self-evident to the slaves owned by some of the men who proclaimed it at the dawn of American republicanism. That free speech or family life is today a fundamental individual right is by no means self-evident in a number of the contemporary world’s states, where history and conditions have made it apparent that they are primarily the state’s business; and it is entirely conceivable that the states of Western Europe may during the coming century recast their thinking about family life, and the right of the incurably or expensively ill to life itself, as social and economic pressures bear down on ethics and theology. Who will then be right: our grandchildren or us?
It is perfectly possible to recognise the localisation of ideas in time and place and to assert that they are none the worse for it: indeed, that ideas which pretend to universality are historical delusions. But this carries two corollaries. One is that, as times change, our premises and assumptions about the content of fundamental rights will change. Secondly, what courts and adjudicators make of currently accepted rights in each country and each generation is itself a function of time and place. Law spends its life stretched on the rack between certainty and adaptability, sometimes groaning audibly but mostly maintaining the stoical appearance of steady uniformity which public confidence demands. But lest the mask become the face, it is important that new generations of lawyers should become actively curious about why the certainties of the law themselves change constantly. How and why is it that the same American Constitution in 1896 legitimated racial segregation in public services and then in 1954 forbade it? How does it come about that not dissimilar abortion laws have in recent years been struck down by Canada’s Supreme Court as too restrictive and by Germany’s Constitutional Court as too permissive? On our own patch, how did it come to be self-evident to the Court of Appeal in 1925 that it was perfectly all right for an education authority to sack married women teachers on the ground that their duties lay at home or, in 1948, that it was perfectly all right for Wednesbury Corporation to use its cinema licensing powers to stop young people going to the pictures on Sundays? Not one of these decisions, each of them affecting what we would recognise now as fundamental human rights, is intelligible today except by situating the reasoning of the deciding court in its peculiar time and place; and the same will, I hope, be true of the decisions handed down by this judicial generation – for it would be only in an ossified and retrograde society that the laws of one generation were good enough for the next. Precedent, far from becoming redundant, takes on an organic role in this scheme of things: not perhaps in the grand Tennysonian image of freedom slowly broadening down in a kind of Fabian long march to happiness, but a centuries-long culture of reasoning and principle which ebbs and flows, so that, for example, the charge of contempt of court made on behalf of a Zairean asylum-seeker against the holder of one of the three great offices of state, the Home Secretary, could be founded on Sir Edward Coke’s assertion of the sovereignty of the courts in the face of the Crown’s prerogatives, and on Wilkes’s recovery of punitive damages from an earlier Home Secretary, Lord Halifax, for the unlawful issue of a general warrant. A former jobbing electrician who became a distinguished teacher of law once told me that in both jobs he had found the most useful part of his equipment to be a well-filled box of junk; and while I would not put the great cases I have been referring to in that class, an eclectic mind is not a bad asset in a modern lawyer.
The ministerial contempt case illustrates, too, the way in which modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process. It is a remarkable fact that a judiciary which has taken a public battering in recent years over miscarriages of criminal justice has in the same period earned large public approbation for its willingness to prevent and correct abuses of governmental power. When the history of modern judicial review is written, it will recount how the coming of the adult male franchise through the two great 19th-century Reform Acts was matched by the introduction of the Northcote-Trevelyan Civil Service, replacing ministers’ placemen with an intellectual and administrative élite from the same schools, universities and clubs as the judges themselves, and encouraging the judiciary to retreat from its prickly Victorian invigilation of the executive into a passivity which, by the Fifties, had allowed executive and local government an unprecedented measure of unchallenged power, to the extent that even the administrative tribunals set up to adjudicate between citizen and state were treated as instruments of departmental policy. It will also, I hope, observe how the subsequent reassertion of judicial oversight of government which has been the achievement of the Seventies and Eighties in this country has been replicated all over the common law world as judiciaries have moved to fill lacunae of legitimacy in the functioning of democratic polities – a process of which the Pergau Dam decision can stand as a sharp recent illustration. The historian’s conclusion may well be that the last three decades of the 20th century have seen a judicial refashioning, with sufficient popular support to mute political opposition, of our organic constitution. If so, its consequence is that we have today both in this country and in those with which it shares aspects of its political and judicial culture a new and still emerging constitutional paradigm, no longer of Dicey’s supreme Parliament to whose will the rule of law must finally bend, but of a bi-polar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown’s ministers are answerable – politically to Parliament, legally to the courts. That the government of the day has no separate sovereignty in this paradigm is both axiomatic and a reminder of the sharpest of all the lessons of Eastern Europe: that it is when state is collapsed into party that democracy founders.
To assume a jurisdiction of this kind is of course to assume, without having argued it, the primacy of democracy. It is therefore worth remembering how temporary and vulnerable the desirable sense of democracy is. A term of abuse synonymous with mob rule in Burke’s vocabulary, its contemporary feelgood usage finds its origin in America, where from its first known modern use in the Rhode Island constitution of 1641 it became a vehicle of challenge to the colonial power in the hands of Hamilton and his contemporaries. In due course the word was similarly adopted in this country, by the Chartists and their successors, who used it against the rotten boroughs and aristocratic oligarchies which electoral reform was eventually to sweep away. But although the power of the word has become such that there is now barely a regime anywhere in the world which has not sought to characterise itself as democratic, there is nothing which determines that the notion of democracy as the higher-order law beneath which constitutions must operate is there for all time. If anything, history should lead us to expect the reverse; but apart from watching phlegmatically as the nation-states, the great oxymoron of the late 19th century, fissiparate and trucial superstates now arm the world’s poor nations to kill each other, we cannot peer very far into that darkness.