2K001E8 Queen Elizabeth II signs Canada's constitutional proclamation as Prime Minister Pierre Trudeau looks on, in Ottawa, April 17, 1982. THE CANADIAN PRESS/Ron Poling

Who rules: judges or parliament

A domestic bill of rights is not necessarily the panacea its adherents intend it to be

This article is taken from the November 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

A mere six months ago, almost the entirety of Britain’s legal commentariat welcomed with glee the death of Dominic Raab’s ill-starred British Bill of Rights which, despite its lofty short title, was essentially a tweaked version of the Human Rights Act 1998, which incorporated the provisions of the European Convention on Human Rights into United Kingdom law.

What few of Lord Chancellor Raab’s critics appreciated was the fact that, had his Bill of Rights been enacted, British membership of the European Convention would have become far more difficult to challenge politically. The excesses of the ECHR/HRA regime could always be blamed on New Labour; but with the Bill of Rights the Tories would have effectively assumed political co-ownership of the ECHR.

Now, with Raab’s political demise, British withdrawal is once again on the table. Suella Braverman’s Washington kite to that effect was no doubt designed to dissuade the judges of the European Court of Human Rights from getting too legally imaginative with her Rwanda plan once the test cases inevitably reach them. But even if Strasbourg ultimately gives way, the memory of a single anonymous ECtHR judge blocking the flights to Rwanda at the eleventh hour, using a made-up power which cannot be found in the text of the Convention, will not soon be forgotten in government circles.

Those with longer memories may feel some cynicism at the latest ministerial threat. After all, every Conservative prime minister since David Cameron has, at some point in their careers, threatened to pull the UK out of the convention. Theresa May even planned to fight the 2020 general election on that policy, before events dictated otherwise. And many moderate Tory MPs still seem to be entranced by the “it’s a bad look” argument against withdrawal, that bane of British governance.

All of which makes Lord Sumption’s recent announcement, in the form of a Spectator cover story, that he now supported UK withdrawal from the ECHR all the more noteworthy. True, he has long been a critic of the ECHR, going back to his 2013 Sultan Azlan Shah Lecture in Kuala Lumpur. And his criticism has only intensified in recent years, most memorably in his 2019 Reith Lectures, which drew an angry rebuke from Róbert Spanó, the Icelandic ex-president of the ECtHR.

His arguments for British withdrawal — mainly centred around the undemocratic and unaccountable nature of the Strasbourg court, which he no longer believes can be reformed — are not especially original. The real novelty lies in the fact that that a retired Supreme Court judge should have broken ranks with the rest of the senior legal profession and admitted to holding such a distressingly Daily Mail opinion.

Reactions to Sumption’s trahison des clerc were depressingly predictable

Reactions to Sumption’s trahison des clerc were depressingly predictable. Stuart Wallace, sometime fellow of Homerton College, Cambridge, said he was articulating “the plaintive cry of the oppressed, white, oxford-educated [sic], old boy”. Jessica Simor KC, who once stood for election as an ECtHR judge, accused him of “fanning dangerous flames, the flames of nationalism” and much else in a reply politely described by Sumption as a “bucket of ordure”.

The vehemence of the responses to Sumption is all the more fascinating since he is merely advocating for the replacement of the ECHR by a domestic bill of rights which would largely replicate the ECHR’s provisions, minus the supranational court. It is the approach adopted in peer countries such as Canada and New Zealand, neither of which, as Sumption notes, has a particularly disreputable record on human rights, unlike some of the ECHR’s current signatories.

Yet if the intention is to curb the abusive judicial interpretation of human rights instruments written at a high level of generality, having a domestic charter of rights as opposed to an international one might not be the panacea that Sumption is looking for. 

True, Parliament can always override problematic judicial interpretations by statute if the apex court is in London. But this would require Parliament to assert its constitutional prerogatives against the courts, and in a society conditioned to look at the judiciary for moral guidance this cannot be taken for granted.

The Canadian case is instructive. The Canadian Charter of Rights and Freedoms contains a notwithstanding clause allowing legislatures to override most of its provisions for five years at a time. 

Given that Canada has one of the world’s most activist judiciaries, one would expect legislators to make abundant use of this power. In practice, however, even mentioning the notwithstanding clause has become politically toxic, as its use is inevitably framed as a case of politicians taking away rights from the people, instead of the legislature disagreeing with a judicial interpretation of a constitutional right. 

Outside of Quebec, whose political class has never quite accepted the legitimacy of the charter, the notwithstanding clause has only been used four times in 40 years. The search for a workable solution to the problem of the gouvernement des juges rumbles on. 

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