Roger Masterman: ‘I like Parliament, and I like courts. Which is best? There is only one way to find out … FIGHT!’

The debate over which institution of government possesses ultimate constitutional authority for determining questions of human rights is – of course – a hugely important question to be confronted by any constitutional system seeking to devise mechanisms promoting the protection of individual freedoms.  For some, the issue of ultimate authority is the fundamental constitutional question.  As experience in the UK has vividly illustrated however, the courts v. Parliament debate is also something of an albatross around the neck of Human Rights Act.  One need only think of the popular media’s portrayal of the prisoner voting saga, the widely-reported responses of politicians to the UK Supreme Court decision on the Sex Offenders Register or the demonisation of the European Court of Human Rights to see the judges v. legislature (occasionally legislature v. judges) narrative portrayed in clear relief.

The debate is continued in the pages of the legal periodicals, where the opposing factions of political and legal constitutionalists repeatedly trade blows.  The former accuse the latter of endorsing radical, counter-majoritarian, judicial interpretative powers – ‘interpretation on steroids’, ‘Alice in Wonderland interpretations’ or ‘Spike Lee-like licences to “do the right thing”’ as James Allan has memorably/disparagingly termed them – while the latter accuse the former of being blind to the anti-democratic tendencies of party-politics, uncritical of executive dominance of the legislature and of conveniently ignoring the fact that the impugned interpretative powers were deemed to be acceptable to a majority of legislators and duly enacted as primary legislation.  Meanwhile, many (most?!) readers sit back considering how their own particular constitutional worldview is able to neatly accommodate the better parts of both extremes …

The recently-published report by Murray Hunt, Hayley Hooper and Paul Yowell – Parliaments and Human Rights: Redressing the Democratic Deficit (AHRC Public Policy Series No.5) – strongly argues that a continued focus on the question of ‘ultimate authority’ holds the potential to detract attention from other, equally important, questions (most notably the effectiveness of rights protecting mechanisms in practice).  The authors argue that:

‘The choice between the Courts and Parliament as the guardians of human rights is increasingly rejected.  In place of that old dichotomy there is now widespread agreement that all branches of the State – Parliament, the Executive and the Judiciary – have a shared responsibility for the protection and realisation of human rights (p.6).’

Hunt, Hooper and Yowell instead seek to focus attention on the changes needed within our institutions of government in order to help realise, and to give better effect to, human rights (p.12).  At the same time however, their report recognises that consensus over the shared constitutional responsibility for protection of human rights ‘is accompanied by new levels of dissensus over who has the final say (p.11).’  This particular paradox was borne out in discussions at the recent conference to which this report formed the backdrop (Addressing the Democratic Deficit in Human Rights (17-18 April 2012); the question of ‘ultimate constitutional authority’ was the looming spectre at the feast.

The justification offered for our inability to move beyond the question of ‘who decides?’ relates to the apparatus of government.  Hunt, Hooper and Yowell suggest that the ‘institutional machinery for the protection and realisation of human rights has not caught up with the new consensus’ and, as a result, remains primarily reliant on ‘unelected judges providing legal remedies for individuals whose rights have been violated (p.11).’  On this analysis, the suggestion is that amendments to institutional processes – especially those within Parliament – hold the promise to deliver ‘more effective implementation of human rights (p.11)’ and in so doing to focus debate on the substance of rights protections, rather than discerning their ultimate guarantor.  But surely there is more to it than this?

The fact that the debate over ultimate authority retains currency is indicative of a significant limitation – perhaps a failing – of the HRA.  The HRA model was, after all, designed to reconcile judicially-protected rights with parliamentary democracy by offsetting judicial interpretative powers against political rights review and the ability of the legislature to avoid taking remedial action in response to a declaration of incompatibility.  The HRA was adopted in order to give effect to the very notion that the three branches of government shared constitutional responsibility for rights protection.  The failing of the model – evident here in the continued perception that the HRA excessively empowers the judiciary at the expense of executive and Parliament – illustrates that the transformative potential of the HRA has not been fully carried into effect.

But was the HRA ever likely to precipitate a constitutional revolution?  Was it ever likely to irrevocably transform the constitutional landscape?  Probably not.  In giving legal effect to the Convention rights, and in attempting to focus legislative design processes around respect for those rights it certainly attempted to integrate rights concerns into constitutional processes – a significant change of course – but its effects at a deeper level have been far less profound.  While the HRA has subtly influenced our perspectives on parliamentary sovereignty, for instance, it has not – either alone or in conjunction with the various challenges posed by extra-jurisdictional legal influences or by intra-jurisdictional dispersals of authority – marked the death knell of this core constitutional doctrine.  As Lord Hope, citing Lord Bingham, stated in the recent Supreme Court decision in AXA General Insurance Ltd v. Lord Advocate, ‘the sovereignty of the Crown in Parliament … is the bedrock of the British constitution (at [45]).’  The constitution which King, Bogdanor and others have argued to have been jettisoned as a result of the various reforms of the last 15 years has perhaps, in its fundamentals, shown remarkable resilience.

Suggested amendments to institutional processes (and maybe to those institutions themselves) are, therefore, cosmetic; the constitutional culture within which those institutions operate is based on much deeper foundations.  The integral place of the sovereignty doctrine demonstrates how the constitution is intimately wedded to the notion of an ultimate authority, and ensures that debates over perceived challenges posed to that authority by other constitutional actors will, for better or for worse, continue to underpin and drive much constitutional discourse.

The idea of conflict within and between the institutions of government is then, as Griffith argued, at the heart of the constitution; legal process feeds on conflict, adversarial politics – as Robin Cook has written – is the ‘animating principle’ of the House of Commons, and ‘the will of Parliament’ is a construct which, more often than not, masks significant internal and ideological disagreement.  Little has apparently changed as a result of the early experiences of coalition government, which have been characterised as much by an increased focus on intra-governmental tensions as by any spirit of co-operation between the Conservatives and Liberal-Democrats.  The judges v. Parliament/Parliament v. judges debate is simply the macro-level evidence of this constitutional culture.  Notions of a dialogue amongst governmental institutions, of a co-operative constitution, and perhaps even of acknowledgement of a shared responsibility to protect rights, therefore have an air of unreality in any but the most abstract sense.  In practice, such ideas are seemingly embraced by neither courts nor politicians (and, even if they were, would only thinly disguise further disagreements over the content of the protected freedoms, the balance to be struck between individual and societal needs, the ways in which clashing rights be reconciled and so on).

Parliaments and Human Rights: Redressing the Democratic Deficit therefore lays down a challenge; any attempt to generate a sense that constitutional actors are engaged in a joint enterprise in the promotion or realisation of as controversial a topic as human rights therefore must confront more deep-seated issues in constitutional theory and constitutional culture.  For the time being, debates over ultimate authority (and the conflicts that those debates spawn) will continue to obscure (and enlighten) discussion concerning constitutional efficacy in equal measure.

Roger Masterman is Reader in Law at Durham University.