Vol. 19 No. 11 · 5 June 1997
pages 35-39 | 5620 words
What Bill and What Rights?
Stephen Sedley
There is no reason in theory why the current relationships between legislature, courts and executive government should not continue indefinitely. The tensions between the component elements of the state have never in three centuries reached the point of fracture; indeed, because each element depends on the others, there is a governing incentive not to let this happen. If such à balance were to be upset, it would almost certainly be from outside: at its crudest, by a coup; at its most insidious, by the absorption first of government and Parliament and then of the judiciary by an initially legitimate but unscrupulous political force. In constitutional terms this was the story both of the Soviet Union and of prewar Germany: the turning-point in each case was the collapse of freestanding political, administrative and judicial institutions into a unitary state machine controlled by a single party. No prescriptive document can stem such a tide: the Nazis simply swept the Weimar Constitution aside, while Stalin’s 1936 Constitution was a living lie. But democracy is not like an electric light, either on or off: it can flourish, or it can be cramped and distorted. Its ability to thrive is more often a question of degree than of kind.
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Letters
Vol. 19 No. 14 · 17 July 1997
From John Wadham
As Stephen Sedley wrote (LRB, 5 June), and as Lord Irvine has recently reminded us, the Government intends to incorporate the European Convention on Human Rights into domestic law, a proposal that Liberty has supported for some time. The Convention itself is not of course a panacea and, being nearly fifty years old, needs to be supplemented by new rights in a domestic Bill of Rights. In the shorter term the Government needs to make some important decisions on how incorporation is to be achieved. In my view, the real test of the commitment of the new Parliament will be whether it is prepared to allow the courts to give a higher status to the Convention than to other legislation. The Canadians have developed devices that preserve the sovereignty of their Parliament while also giving fundamental rights the importance they deserve within the Constitution. In Canada, if in a particular case the courts have to resolve a conflict between the rights set out in their Charter and other legislation, the Charter rights are given precedence. The particular statute is not, however, ‘struck down’; instead the courts either ‘read in’ the missing rights or make it clear that part of the statute no longer applies. Parliament then has the opportunity either to clean up the statute in order to comply with the ruling or to re-enact it, adding a clause stating that the provision applies ‘notwithstanding’ the Charter. The latter option prevents the court from dis-applying that provision of the statute. The alternative model being discussed comes from New Zealand where, if there is a conflict between rights and statute, statute prevails. In this country the adoption of the New Zealand model would mean that the individual who was able to show to the satisfaction of the domestic court that her Convention rights had been violated would nevertheless lose the case.
The Labour Party’s consultation paper, published in December, proposes that Parliament change the law in any case where the domestic courts had found that the primary legislation did not comply with the Convention. Unfortunately, if it did not do so, the domestic courts would be powerless to do anything other than to remind Parliament every time a similar case came along. The danger with this approach is that if a case concerned an unpopular group of people, like suspected terrorists, travellers or protesters, or was controversial in some other way, as many human rights cases are, then Parliament might never get round to changing the law. We need not follow slavishly either the Canadian or the New Zealand model but the courts have to have the power to provide a real check when Parliament has legislated in such a way that our fundamental human rights are at risk.
John Wadham
Liberty
