Colonels in Horsehair

Stephen Sedley examines the realtionship between human rights legislation and the judiciary

  • Sceptical Essays on Human Rights edited by Tom Campbell and K.D. Ewing
    Oxford, 423 pp, £60.00, December 2001, ISBN 0 19 924668 8

The United Kingdom is a good place in which to assemble a book of sceptical essays about human rights, but was 2001 a good year in which to do it? True, by then Scotland and Wales had operative devolution statutes which obliged their Governments to observe the European Convention on Human Rights in all they did; and some interesting decisions had already been thrown up north of the border. But the big one, the UK’s Human Rights Act, although enacted in 1998, had been put on a slow fuse to enable the country to get ready for it, and it was not until October 2000 that it was brought into force.

By then all hats were in the ring: liberal opinion had hailed a new dawn, and conservative opinion, both left and right, had predicted a bonanza for cranks and lawyers. It was a safe bet that neither would be proved wholly right, but there was no hope, and there will be none for a few years yet, of assessing whether the new system has significantly changed the way the country is run. This volume of sceptical essays thus sits uncomfortably on the millennial cusp, looking back at a past which is now over and forward to a future which has barely begun. Even the sound pieces on Scotland, Northern Ireland and Wales, all of which have somewhat richer recent experience than England, are rightly tentative.

According to the mission statement riskily disclosed by the editors, these essays critically examine ‘the extensive shift of political authority to the judiciary’. Now what extensive shift would that be? The judge who held that the Home Secretary was violating Louis Farrakhan’s Convention right of free speech by denying him entry to Britain was told recently by the Court of Appeal that the Home Secretary was the best judge of these things. The court which concluded that the town and country planning system lacked independence at its apex and so failed to afford fair hearings was patiently told by the House of Lords that the whole point of the planning system was to give policy the last word so long as it stayed within the law. The nascent right of privacy which some of us thought we heard drawing breath is still in the incubator, with an uncertain prognosis.

If you turn to the comparative essays grouped as ‘The Experience of Elsewhere’ which end this book, you start to see why. How much or little judges make of human rights seems to have not a lot to do with the tools the legislature hands them. We know that since its 1982 Charter of Rights and Freedoms came on stream, Canada’s polity has been profoundly altered both by the decisions of the courts about what legislatures can’t do, and by legislators’ and administrators’ fears of what will happen if they try. Judy Fudge’s thoughtful and factual piece tracks the jurisprudential politics of two decades of Charter litigation. She points out how early Charter liberals have become disillusioned as a fightback by the well-heeled National Citizens’ Coalition has resulted in three out of four Federal elections being fought without effective legislative restraints on political advertising, with outcomes much to the satisfaction of the advertisers. ‘There you are,’ a sceptic looking only at Canada would say: ‘give the judges a bill of rights and they take over the country.’ But Canada had had an earlier Bill of Rights, passed in 1960, under which the courts managed to decide little more than that a First-Nation Canadian had as much right as a white man to be drunk in the Old Stope Hotel, Yellowknife. By the 1980s something new had stirred in Canada’s judicial ethos; possibly the same thing as in Australia where, in the early 1990s, the Federal High Court discovered in the country’s 1901 Constitution, which provides for elections but says almost nothing about human or civil rights, a power to strike down in the name of free speech legislation which imposed controls on political advertising in the run-up to elections. Since then the Australian courts have been in partial and – Adrienne Stone’s essay contends – disorganised retreat towards an ill-defined middle ground.

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