Tag Archives: Human Rights

Philippa Webb and Kirsten Roberts: How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.

KRWebb_photoThere is intense interest in the UK in the role of the judiciary in protecting and promoting human rights, but Parliaments can also play a vital role. The UK Joint Committee on Human Rights, which has featured on this blog, is widely admired as a mechanism for the oversight of human rights. However, it is not the only possible oversight mechanism, and it, too, could be improved.

This week at the United Nations in Geneva, the results of an 18-month project spanning 9 jurisdictions on Effective Parliamentary Oversight of Human Rights will be launched. We will be putting forward proposals aimed at encouraging parliaments to become more effective in their human rights work.

An advance copy of the Outcome Document can be downloaded here.

In democracies, parliaments are crucial in balancing the use of power by the executive and overseeing the functioning of the State. In many countries this balance is off – with the executive and civil service seemingly unwilling to cede any real control to oversight or accountability mechanisms. Yet as a crucial component of the state architecture, parliaments share a responsibility to protect, respect and fulfill the State’s international human rights obligations. As elected representatives, parliamentarians have the responsibility to provide for the best interests of their constituents. However, in addition to this duty, parliaments are also ideally positioned to be leaders in ensuring that the State is not perpetrating human rights violations, that domestic law is not incompatible with human rights standards and in ensuring that human rights protections are in place.

The international organization for parliaments, the Inter-Parliamentary Union, with whom we will co-host the event in Geneva, has identified 7 common tools for parliamentary oversight: Committee hearings,
Hearings in plenary sittings, Inquiry commissions,
Questions,
Question time,
Interpellations, and
the Ombudsman. These mechanisms are clearly lacking in many systems.A dedicated human rights mechanism– whether it is a committee, sub-committee or rapporteur, is required for all Parliaments. This mechanism, whatever its form, should have a clear goal. In our Outcome Document, we propose what such a goal might look like:

To help ensure increased compliance with human rights and a better life for all the people in this country through publicly examining existing or potential human rights deficits identified by parliamentarians, international organisations, the National Human Rights Institution, Civil Society Organisations, the media, the public, victims, whistleblowers and others; making proposals on areas for change or improvement; and calling the government to account for failures to protect the rights of the people of this country.

A clear goal for a parliamentary human rights mechanism would help to provide focus, purpose and clarity to its work. In addition to any mechanism, parliamentarians also have individual responsibilities. Parliamentarians should ensure they are educated on human rights standards, and aware of human rights issues. For both the mechanism and individual parliamentarians, there must be engagement with independent oversight bodies in the state as well as with Civil Society Organisations and victims’ groups. Parliamentarians should take personal responsibility for the promotion of specific human rights issues, particularly those relevant to their constituents. We hope that the proposals we put forward in Geneva this week can contribute to promoting much needed change in this area in Parliaments around the world.

 

Philippa Webb and Kirsten Roberts are co-investigators of a research project on Effective Parliamentary Oversight of Human Rights, funded by the King’s Policy Institute: http://www.kcl.ac.uk/law/research/parliamentshr/index.aspx

 

(Suggested citation: P.Webb and K. Roberts, ‘How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.’  U.K. Const. L. Blog (24th June 2014) (available at http://ukconstitutionallaw.org/)).

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David Mead: Who You Gonna Call – Mythbusters: the Need For Vigilance in the Great HRA Debate

davidmeadIt’ll be over by Christmas we thought – strongholds taken, fortifications dug in and positions entrenched. “It gives too much power to judges”…”why do we need to have any more European law?”…”like health and safety, only gone madder.” The debate over the HRA and a possible British Bill of Rights has become formulaic and sterile, no quarter ever conceded lest that be seen as a weakness for the other side to steamroller in and on to success. Gavin Phillipson in his recent ‘blogpost in these pages noted the political coalescence against the HRA.  Truth and accuracy have succumbed to hyperbole and straw men, victims of the battle. Becoming tougher on rights and tougher on the causes of rights is only likely to intensify in the run-up to the publication of the Commission on a Bill of Rights report, expected in the next few weeks.

The latest skirmish saw the defeat this week of a ten-minute rule bill proposed by Tory backbencher, Richard Bacon (coincidentally my local MP). His bill, calling for repeal of the HRA, was defeated by 195 votes to 72. As with many of those seeking repeal or arguing for wholesale reform, much of the blame was misdirected – lain instead at the door of the undemocratic European Court and its perceived illegitimacy. That is, it is true, a question – but not one that is integral to resolving the conundrum of the HRA. Another weapon, almost always in the hands of the right, is to claim that the HRA and the ECHR has trivialised support for ‘real’ rights, or as Nick Herbert in his recent Policy Exchange Kingsland Memorial lecture called “the great rights”.

These points , and many more, need to be confronted by all of us who support some form of home-grown system for protecting rights but – and this is the point of this post – do we really offer that support best by creating and propagating our own myths? It is one thing to disabuse readers of The Sun which was urging the government to “Rip Up The Human Rights Act; the cause of rights can only be enhanced by showing underhand tactics for what they are. It is another to found a positive case for retention by being “economical with the actualité”.

Rebuttals and counters put out by supporters of the HRA aren’t immune from charges of partiality. The evening before the ten-minute rule debate, shadow Secretary of State for Justice, Sadiq Khan, put out Ten Myths about the Human Rights Act on LabourList, in an attempt to head off many of the usual suspects that were likely to be arrayed the following day. Khan is right on many points: clearly the HRA is likely to be more protective of rights for no other reason than that the common law can be “overridden by new legislation.” He was right too to highlight media portrayals that present a skewed truth. There was never any hope of Dennis Nielsen ever obtaining hard-core S & M pornography by calling in aid Article 10 – and it was rejected at the permission stage – yet shadow Home Secretary David Davis in an article in The Daily Telegraph in August 2004 asserted he’d been able to do so. These misunderstandings (in best light) – perhaps deliberate falsities – need to be combated. The DCA did so successfully in its Review of the Implementation of the Human Rights Act in 2006 but have these corrections made it in the public psyche – or are we still suffering the equivalent of EU “bent banana” syndrome? Equally, as Khan notes, there is a clear lack of public understanding, but not lack of support it seems – though of course it was the Labour government that simply landed it, without any consultation or public “buy-in”, something on which Alice Donald has commented so forcefully. It must also be sensible to advert to the Tories’ insistence on it being a British Bill of Rights – with its undertones of nationalism and concerns about limiting eligibility – and to assert that the rights in the HRA are rights for all equally, that it’s not simply “lefty claptrap about rights of minority groups”.

As well as these sound points, Khan does run the risk of some own goals, which might allow his rebuttals to be latched onto in turn by opponents as mischief-making and myth-creating. First, to deal with the assertion that “The HRA is foreigners imposing their human rights laws on Britain”, Khan writes that “history shows that it was Brits that wrote the ECHR. They are our human rights laws.” This of course is true of the Convention itself, the role of David Maxwell-Fyfe (later Lord Kilmuir) well-known, so to that extent, the ECHR is if not a British invention then at least very heavily influenced by British involvement. But is that what critics really mean, really complain about? It is not the ECHR that is ‘applied’ in the UK through the mechanism of s.2 but the case-law of the Strasbourg Court. The Convention itself is broadly worded and vague; it is case-law that tells us, to take an example, that the right to life in Article 2 also requires states to carry out an effective investigation into deaths. To that extent Gavin Phillipson and Alex Williams are surely not right (p.897) to argue that the HRA only makes rights binding, not the case law? No, the worry is that it is the jurisprudence of the Court that is being domesticated, either as an interpretative tool under s.3 or as a measure of government legality under s.6. Like all member states, the UK has only one judge at the Court. In that sense, the HRA – and the mirror principle adopted as the touchstone for s.2 – means that it is not unreasonable to assert there has been foreign imposition; simply pretending that the worry is misplaced does not make that worry vanish. Whether it is a good or bad thing is a further normative question – as is whether a panel of largely foreign unelected judges is qualitatively different to and lesser than a bench of home-grown unelected ones, given the universality of human rights …but these are not the questions Khan is grappling with. The fact that s.2 only requires judges to take account of Strasbourg law – and are not bound – does not really meet the objection, given the way the “no more, no less” principle has operated. Neither is Khan considering whether or not in extremis that there be an override power for national parliaments to be able to show their clear disagreement with ex cathedra pronouncements from the Court. On that, as we are seeing with the prisoner vote issue in the UK, there can quite properly be differences of view, yet it does the case for retaining the HRA little good for its supporters’ counter-arguments to be dealt with so easily.

Khan’s other problematic contention is when he counters the assertion that “judges now make our laws, not Parliament”. He gives this short shrift too:

Our Parliament is sovereign – it makes the laws of the land. Courts and judges don’t make laws – they operate within the laws as set by Parliament. Under the HRA, courts can only highlight human rights abuses – the so-called “declaration of incompatibility” – and it’s for Parliament to decide how to respond to such a declaration. While it can ignore the declaration, Parliament can’t be forced to change the law against its will.

It’s here I fear we’d simply have to agree to disagree. I have on these pages blogged about the dialogue model and specifically the downplaying of the impact of transformative readings under s.3. I have heard Francesca Klug and Shami Chakrabarti make the same point at public lectures in the past year: we shouldn’t be overly concerned with how the HRA operates since parliament retains its residual power to make and change law. Judges cannot do so; the most they can do is ‘warn’ by declaring legislation incompatible. That assumes a more pivotal role for s.4 than is usually accorded it, certainly in view of various judicial exhortations that it be a last resort. A more used remedy, certainly more versatile and more valuable to individual litigants, may well be s.3. “May well” because we simply do not know – and that is the problem. Data are not maintained on how far and on how many occasions judges have read words into statutes. If parliament is not aware – and the instances of s.3 being used does not feature in the annual Ministry of Justice report on human rights judgments – how will it know it has to act? It is a fudging of the real issue to maintain all is rosy simply because there is no strike-down power.

The position adopted by Khan here is also partial in that it ignores the wider judicial/political relationship being thrown out of kilter by enhanced proportionality review. It could feasibly be argued – and David Blunkett dedicated some of his career to exactly this – that the real impact of the HRA is in empowering judges to question and to control the substance of ministerial discretion on human rights grounds, so diminishing the scope for unchallengeable political decision-making. There are sound arguments either way – both as to whether judges indeed do so and should do so – but resolving that is not the point. Khan does not simply relegate this element of judicial power, he ignores it. While it could be argued that he is simply trying to deal with the ten most commonly lined-up counters to the HRA, he of course selected those ten. While the question of judicial power in the realm of legislation is undeniably a key one, the number of cases over the past decade where judges have utilised s.3 or s.4 are in low double-figures. That is probably the number of JR cases in a few months that the Administrative Court faces where the question is the proportionality of a minister’s decision. To ignore that crucial aspect is to mislead.

That leads to my final comment. In seeking to defend the HRA against its naysayers, there is no mention in Khan’s account of how the Labour Party in government – albeit before he was elected as an MP in 2005 – undermined the very legislation it brought in. Again, of course, that was not part of Khan’s project – but can half a picture really be true? From the Prime Minister downwards, unfounded and uncorrected assertions were made that the blame for various unpopular events taking place or unfurling – the Afghan hijackers not being deported, the release to kill again of Antony Rice – was the HRA. It is well documented in the JCHR report of 2006 on the DCA Review (above), in fact damningly so, that “…the Human Rights Act has been used as a convenient scapegoat for unrelated administrative failings within Government”. Is it so surprising now that the anti campaign has ascended to such heights when the framers of the Act gave it such a foothold? Dealing with the past, reconciliation, is the only real way to lay secure foundations for the future.

There are many and varied tough choices that need to be made as we move toward a future possibly with a British Bill of Rights rather than the HRA. At the heart of contemporary bills of rights debates is how to devise a mechanism that responds to the benefits that majoritarian decision-making can herald, for accountability, responsiveness and democratic legitimacy, and to the concerns it brings viz. that by definition it does not cater well for minorities – as well as the fact that it is responsive to our wishes only temporarily, at best to those currently able to vote. Human rights should be eternal, not ephemeral. That’s why conferring power on judges who do not need to seek election, let alone re-election, who can rise about party shenanigans, can seem so attractive. This must be especially so when the voting system functions to distort political power.  The pitfalls are again well rehearsed. I’m not proposing a solution but simply wondering whether “the next time you’re faced with a Tory in full flow castigating the HRA”, as Sadiq Khan ended his piece, you really are better off equipped with a myth-making myth-buster of your own?

David Mead, Professor of Public Law and UK Human Rights, University of Essex

 Suggested citation: D. Mead, ‘Who you gonna call – Mythbusters: the need for vigilance in the great HRA debate’ UK Const. L. Blog (6th December 2012)(available at http://ukconstitutionallaw.org).

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Conor Gearty: Liberty and Security

The contemporary discussion about secret trials in the UK echoes earlier controversies about TPIMs, control orders, detention without charge, special advocates, the use of torture – the list seems depressingly endless. Defenders of the rule of law and of human rights appear permanently on the back foot these days, desperate just to stay in the game and having long given up any notion of making the running themselves.  For most of those working in the field (whether as lawyers, activists or scholars), the goal is survival not success.

Why should this be the case?

What has made it so difficult to argue positions that – until really quite recently – were taken largely for granted?

I have been thinking hard about this over the past few months as I have been finalising Liberty and Security, a book to be published later this year (or early next) by Polity Press.  It is about the shape that these words ‘liberty’ and ‘security’ have taken through time and from place to place, how much they have been realised and for how many, and what their standing is today.  In reflecting on these questions I have, I believe, stumbled upon an unattractive global trend, which in the book I call ‘neo-democracy’.

I want to use this short post to explain what I mean by this and – hopefully – start a discussion.

The key to understanding ‘liberty’ and ‘security’-  and therefore to identifying how these words work today – is to see that while their core meaning is not hard to work out, it is the reach of the benefits that each word so powerfully evokes that truly matters.

-       It is the ‘for how many’ issue that mainly concerns me: to whom are liberty and security to be extended?

-       Is it to be to all or just the few?

-       If it is to be to all, is it to be through community, state, non-state, regional or international action?

-        If guaranteed for all, how practical in their reach do these theoretical commitments prove themselves to be?

I think that the central arguments over liberty and security have really always been about this issue of remit rather than of meaning.

My book argues for a particular approach, one that regards the benefits of liberty and security as being rightfully available to all, and thereby capable of reaching (being required to reach) the many rather than the few.  It does not argue the ethic of such a perspective from first principles. Instead it rather takes the moral desirability of universality for granted – as most societies now say they do (whatever about how they truly act). Viewing liberty and security in this all-inclusive way shapes how I approach both the past work these words have done and the present-day reach that (I say) should be consistently accorded to them.

This is not as easy as it looks.

Saying is not doing. A different approach is reflected in the growing presence of walls in divided societies, blatant efforts by the ’haves’  to shut out not only the sight of the ‘have-nots’ but also any opportunity the unlucky many might have to glimpse what a better future would look like.  Israel’s ‘partition fence’ might be the most well-known of these but it is by no means the only one: see http://www.marketplace.org/topics/economy/separation-barriers-world  And when where there are no physical walls, our neo-liberal society has increased embraced metaphorical walls even while it has ostentatiously embraced the virtues of the level playing field.

And important bits of our shared history might be on the side of the neo-democrats.

If we look to the past, neither ‘liberty’ nor ‘security’ has been routinely understood in the broad terms for which I argue. Indeed the primary understanding of liberty and security in the pre-democratic era was always narrowly selective as to who was to benefit from the opportunities afforded the one and the safety delivered by the other.  It was only when the radically egalitarian idea of community self-government took hold on a national scale that liberty and security found themselves open to being wrenched out of their elitist corrals and offered to all.

Democracy gave the universalist reading of liberty and security an entry point and strong support but it could not by itself deliver effortless supremacy for the reach that this approach affords these words.  This was because (as I argue in the book) the democratic victory was itself incomplete, a freedom for all that was invariably not forged afresh but rather tentatively grafted onto a pre-existing society that had been designed for the few.

Old elite readings of liberty and security persisted into the democratic era, jostling for space with their egalitarian interlopers.

This takes me to the central argument in the book, the one that I wanted to flag up in this post.

Around the world we are drifting towards a post-democratic (‘neo-democratic’) model of government.  This is a polity that increasingly wears democratic clothes as a disguise rather than a proud necessity. So we see these old, pre-democratic meanings of the terms returning into popular use, underpinning and explaining readings of liberty and security which remain apparently universal but are now falsely so – words that hide inequality and unfairness by seeming to reach all when in fact in their practical impact they are tailored to the few.

It is not just the so-called emerging democracies that are in reality neo-democratic in this sense: increasingly it is places like the US, the UK and even the UN itself.  Former authoritarian states are reaching up to neo-democracy while the old democracies are stooping down.  They are meeting in the middle, in virtual democracy: this is the world of secret trials, special advocates and so on.

My book argues that we should recover the universal in liberty and security, restoring the egalitarian thrust that drove the turn to democracy that was such an important feature of the evolution of universal freedom.  Such a move has two important allies in its quest to impose its version of the truth, two large-scale movements that have had a beneficial impact across the world.

The first, the rule of law, predates the democratic turn but complements it, maintaining that everyone must be subject to the same laws and (just as critically) that the maker of any given law should not at one and the same time be its authoritative interpreter.

The second, the human rights movement, is of more recent origin (at least insofar as we understand the idea today); the very way that its self-description dedicates itself to all humans reveals the commitment shown by human rights to an egalitarian vision of the world, one in which we all should have a right to the freedoms that were once assumed to be the privilege of the few.   And human rights today also reaches beyond the protection of liberty (narrowly defined) to encompass rich readings of human security, the sort which democratic government once made popular. It is about much more than this or that law, just as it is not about selfish choices masquerading as entitlements – it is about universal freedom.

The neo-democratic turn in contrast wants us to regard democracy, the rule of law and human rights in this sense as outmoded. It wants us to see these ideas  as ‘old hat’, incapable of coping with the challenges of the modern global world, the rise of extremism, climate change, the movement of capital, population growth, refugees, etc.  The proponents of neo-democracy (conscious and unconscious) are happy to see the terms ‘liberty’ and ‘security’ contaminated by misuse, forsaken by those who should love them most as creatures of illusion and hypocrisy.

True liberty and security – that is liberty and security for all and not just the already empowered few – depends on recovering the finest meanings of these terms and then using them as offensive weapons against the onward surge of the over-privileged minority whose ideal world would see liberty and security as their exclusive preserve alone.  They must be resisted. It is time to get back on the front foot.

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

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Event: Human rights protection in Australia and the UK / Thursday 5th July, 6.15 pm

Members of the UKCLG are invited to the following event on Thursday, co-hosted by the Anglo-Australian Lawyers Society (UK Chapter) and ALBA. Please note that advance registration is essential.

Human rights protection in Australia and the UK: Contrasts and Comparisons

The Hon Justice Robert French AC

Chief Justice, High Court of Australia

A lecture to be chaired by

Lord Judge, the Lord Chief Justice of England and Wales

Thursday 5 July 2012

Australia House, Strand WC2B 4LA

6.15pm to 7.15pm

Accredited for 1 hour Bar CPD

Admission is free, however for this event we must have in advance the names of those attending, so if you wish to attend it is essential to RSVP to aidan.douglas@minterellison.com by no later than 12.30pm, Thursday 5th July 2012. There is no entry without an RSVP.

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Bradley W. Miller: Assisted Suicide and Judicial Review

What considerations can justify a court overturning a recent constitutional precedent?  This constitutional perennial is once again in the foreground as a Canadian court is asked to revisit a 1993 judgment (R. v. Rodriguez, [1993] 3 SCR 519)) upholding the constitutionality of the criminal prohibition of assisted suicide.  The sole justice from that panel remaining on the Supreme Court of Canada is Chief Justice Beverley McLachlin, who had dissented.

Understandably, the plaintiffs in Carter et al v. Attorney General of Canada (BC Supreme Court, Vancouver Registry No. S112688) to be argued in November 2011, have skirted the question.  The only allegation pleaded that could be relevant to whether a court should overturn Rodriguez is that “(a) significant number of countries now authorize physician-assisted suicide”, although the constitutional significance of foreign practice remains deeply controversial in Canada.

Some further background, then, is needed.  It is often said that constitutional litigation is the only alternative in the face of legislative indifference or inaction.  But in this case the refusal to legislate is, on any account, a considered refusal and not mere inattention.  Since Rodriguez, bills proposing the decriminalization of physician-assisted suicide were introduced in the House of Commons in 1994, 2005, and most recently in 2009, along with a motion calling for a special parliamentary committee to review the criminal prohibition of euthanasia and assisted suicide in 1997.  All of these bills and motions were defeated.  Additionally, a Special Committee of the Senate held hearings in 1995 and in its report recommended that euthanasia and assisted suicide remain criminal offences.  So the circumstances are different from those said to have preceded the Canadian courts’ initial foray into same-sex marriage; that the matter had never been put up for serious debate in any public forum prior to the issuance of the writ.  Nor can it be credibly argued that the legislation in question is the product of animus against any group of persons who lack access to Parliament.

What about changes in public opinion?  The plaintiffs can, if they choose, point to opinion polls reporting comparatively high levels of support from the general public (though not from physicians) for some form of decriminalization.  But Canadian courts are reluctant to let questions of constitutional principle be answered by opinion polls.  WJ Waluchow has argued that courts ought to be wary of majority opinion, and only give effect to what he characterizes as the “community’s constitutional morality”, understood as the “moral norms and convictions to which the community, via its various social forms and practices, has committed itself and that have in some way or other been drawn into the law via the rule of recognition and the law it validates.” (Common Law Theory of Judicial Review (2007), p. 227)  Opinion polls are not a suitable guide for judicial reasoning; courts, on this theory, may only be guided by deep, settled convictions that have been drawn into law.

This brings us, then, to questions of the development of constitutional doctrine.  The Supreme Court of Canada has, in recent years, not been shy about modifying settled Charter of Rights doctrine.  This is often in response to concerns that legal tests that have been adopted have become breeding grounds for confusion and ad hoc decision making.  The career of s.15(1), the Charter’s anti-discrimination provision, has been a poster child for this sort of thing.  Nevertheless, it is rare for the court to directly overturn a previous decision.  It did so recently in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (2007), where it explicitly overturned a 20 year old precedent that held that the Charter’s guarantee of freedom of association under s. 2(d) does not provide a right to collective bargaining.  It did so by relying (uncharacteristically) on the original intent of the framers and acknowledging that its earlier decision was simply wrong.  The reliance on original intent is highly unusual in Canadian constitutional jurisprudence, and can only be explained by the Court’s anxiety that its departures from precedent appear principled and restrained, and not simply a matter of the Court having changed either its mind or its membership.

The Court will also take changes in international law and the practices of other jurisdictions as capable of justifying a change in domestic constitutional interpretation, but this is highly selective: see Sauvé v. Canada (Chief Electoral Officer) (2002), a prisoner voting case in which McLachlin CJ rejects the relevance of the practices of “self-proclaimed democracies” [para. 41] such as the UK, US, Australia, and New Zealand.

A more common avenue for escaping the strictures of precedent is for the court to formally uphold a precedent, while arguing that new or different facts, once fed into a proportionality test – fast becoming “one test to rule them all” – mandate a different result.  For example, when explaining why its constitutional review of the tobacco advertising restrictions in 2007 would not be governed by a 1995 precedent (RJR-MacDonald v. Canada (AG)), the Court stressed the significance of a different factual matrix:  in 1995, apparently, the Court was unaware that smoking could be addictive or a risk factor in fatal illness (Canada (AG) v. JTI-Macdonald (2007)).  Similarly, in a 2001 case on the constitutionality of extradition to face the death penalty (United States v. Burns, (2001)), the Court explained that ten years earlier (Kindler v. Canada (Minister of Justice), (1991)) it was unaware of the prevalence of wrongful conviction. These explanations, of course, are not always convincing, but they do allow a way around a precedent without admission of a change of heart.

Where does this leave Carter v. AGC?  To succeed in overcoming Rodriguez (given the hurdle placed by the continuing attention of both houses of Parliament), the plaintiffs would have to demonstrate that Rodriguez has been overtaken by developments in Canadian law dealing with the concepts of dignity, sanctity of life, and autonomy and that the experience with physician-assisted suicide in other regimes since 1993 should vitiate any concerns expressed in Rodriguez about the need to maintain the prohibition in the interests of the vulnerable.

On the question of whether there has been robust change to the concept of autonomy in Charter jurisprudence, the plaintiffs face an uphill battle.  There has indeed been an expanded licence for obscenity and indecency, and a minority of judges have held intermittently that the Charter may protect “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout v. Longueil (1997)).  But all attempts to date to harness that proposition in support of a constitutional challenge to a criminal law have failed (see, eg, R. v. Malmo-Levine (2003), a Charter challenge to the criminalization of possession of marijuana).

Another question, of course, is the relevance of the contested legacy of the Netherlands and other jurisdictions since 1993.  The statutory framework adopted by the Dutch is considerably different from that adopted in, for example, Oregon.  The impact of each system on such matters as the incidence of non-consensual euthanasia and the availability and quality of palliative care remains has to be carefully assessed.  There is a large and controversial body of scholarship on these and other matters, and much time at trial will have to be given over to expert evidence.

Significantly, however, the plaintiffs in Carter are not proposing the adoption of any legislative framework.  They are simply demanding that the prohibition on assisted suicide be struck down as unconstitutional.  Were such an order granted, it would mean, of course, that there would be no safeguards or guidelines whatsoever to govern the practice of assisted suicide.  A reviewing court would not be in a good position institutionally to choose to adopt a Dutch model or an Oregon model or indeed any model of legislation at all.  The plaintiffs’ expectation, no doubt, is that the court would simply suspend its declaration of invalidity for a year or so to allow for Parliament to craft the necessary safeguards.

And here problems start to metastasize beyond considerations of whether a court is justified in overturning precedent.  A court cannot simply assume that if it strikes down the prohibition, Parliament will be able to draw up a replacement that both permits assisted suicide and satisfies Parliament’s obligation to protect the vulnerable.  Even assuming that such a regime would be possible, a political settlement might not be.  To understand the danger here, one only has to bear in mind the legislative aftermath of the Supreme Court of Canada’s decision to strike down the Criminal Code’s abortion provisions (R. v. Morgentaler (1988)).  The Court’s clear expectation was that Parliament would enact successor legislation, containing some new restrictions that would be applied more evenly across Canada.  But no successor legislation proved politically feasible, and as a result Canada remains without any legislative restrictions on abortion whatsoever.  Among the self-proclaimed democracies it is alone on this.

Once a court ventures into a morally charged debate such as abortion or assisted suicide, it changes the political dynamic in ways that cannot be anticipated.  The possibility of legislative failure has to be borne in mind by any reviewing court.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.

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