Photo by Dan Kitwood/Getty Images
Artillery Row

Who governs the judges?

American solutions won’t work for Westminster model problems

At the end of March, The Atlantic published an essay by Harvard law professor Adrian Vermeule making the case for a “Common-Good Constitutionalism” that set the American legal academy ablaze. Drawing on famed liberal legal scholar Ronald Dworkin, who called for “moral readings of the constitution” ultimately in favour of liberal ends, Vermeule calls for the American right to move beyond originalism, the dominant view of constitutional interpretation held by most American conservatives, towards a new kind of right-Dworkinian interpretative approach to the Constitution that would read “substantive moral principles that conduce to the common good…into the majestic generalities and ambiguities of the written Constitution.” The essay was, unsurprisingly, controversial.

While many lament the politicization of the American judiciary, political battles over judicial appointments – a proxy for battles over constitutional interpretation – are inevitable in a political system where the judiciary are given the power to review and overturn laws enacted by elected officials and democratic institutions. This is especially true when substantive moral concepts, like rights, are uploaded and entrenched into constitutions, which means that democratic legislation and laws can be, and often are, overturned on the basis of rights.

Political disputes are often not reducible to disputes over procedure, facts, or expertise, they often come down ultimately to moral disagreements. These disputes take place on the terrain of concepts like rights, fairness, justice, the common good, and the public interest. But because there are inevitable and reasonable disagreements over these things, disagreement in political life is inevitable. When this substantive terrain gets uploaded into a constitution, the institutions where constitutional interpretation takes place, like the courts, become political arenas. A consequence of this is that in a place where judicial review based on substantive concepts like rights is firmly entrenched, like the United States, virtually all major social and political disputes, from abortion to same-sex marriage to segregation to healthcare legislation, end up being decided in the courts.

Battles over constitutional interpretation and judicial appointments might seem like a uniquely American problem, given their unique constitutional and political structure, one very different from that found in Westminster systems, but there are reasons to be concerned about a creeping Americanisation and expansion of judicial power in Britain that will create these dynamics in British politics down the road. While it might seem like eons ago, recall that last September the young UK Supreme Court ruled that Boris Johnson’s decision to prorogue Parliament was both justiciable and unlawful, and therefore null, invalidating the prorogation. While this wasn’t a decision based on rights-review, it raises fundamental questions about the British democratic and constitutional order, and ultimately about who rules.

The creeping Americanisation of Britain’s judicial order is a danger decades in the making. A critical juncture moment in this process was the enacting of the Human Rights Act 1998 by the Blair government, and the creation of a UK Supreme Court a few years later. It’s a problem that has not gone unnoticed in political circles, and in the Tories’ 2019 election manifesto a pledge was included to “set up a Constitution, Democracy & Rights Commission” that will “look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts” and “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

The creeping Americanisation of Britain’s judicial order is a danger decades in the making.

Too often, creeping Americanisation and judicialisation of politics is opposed simply because it is alien to Britain’s traditional constitutional arrangements, and not because this order is actually preferable to the American way of doing things. As the Conservative government looks to renew Britain’s constitutional arrangements, it is important to remind ourselves why it is preferable to have a political system in which parliaments are ultimately left to decide on the big moral and contested questions of the day, to settle disagreements about things like rights, and to make sure courts do not become places to conduct politics by other means. If the post-Brexit era is to be one in which Westminster’s political institutions are renewed, we need to remind ourselves why they are so valuable and worth renewing in the first place.

Few would dispute that all human beings possess some sort of inherent status that grants us all equal dignity and respect. This is often conceptualised in terms of “rights,” a set of universal entitlements that must be respected by peers and governments alike. But while most of us agree that human beings all deserve and should be treated with equal dignity and respect, and thus possess certain rights that are worthy of protection, this is where the agreement ends. Not only do we disagree about what rights we possess, we don’t even agree about where these rights come from. Some will argue that rights are inalienable and God-given, others argue that these rights are in some sense “natural,” while others build rights theories on the basis of self-interest and a kind of secularized version of “grant unto others as would be granted unto you.”

Similarly, while we can perhaps all agree that human beings possess certain rights, and possibly agree on what some of those rights are, the application and actualisation of these abstract principles into substantive political doctrines and law is the subject of endless disagreement. Take probably the most basic and least controversial right that we all possess, the right to life. Even over matters of literal life and death, we disagree. When does the right to life begin? Does it begin only at birth, or at conception, or at some later stage in life when we have developed certain rational faculties? And just as we can’t agree on when life begins, we disagree on what this entails about its end. Does our right to life entitle us to ask people to help us end our lives if that is what we prefer? Again, we disagree. Does the right to life simply imply a right to non-interference and prevent anyone from taking our lives, or are their certain things that required in order for us to live that must therefore be considered part of the right to life as well, like basic standards of living and healthcare?

That we disagree about rights is undeniable. But to say that rights, or other substantive moral ideals like justice and the common good are contestable and over which reasonable disagreement exists does not preclude there from being objectively right and wrong accounts of these things. Reasonable disagreement over moral ideals does not force us into relativism and nihilism. And yet, the fact that there is a near-universal consensus about the importance of rights and the need to protect them requires us to figure out some sort of method for collective decision making about these rights despite disagreement. This is what the legal philosopher Jeremy Waldron has called the “circumstances of politics,” namely the circumstances in which we disagree about all sorts of questions about what is good and just, and yet nonetheless we have to find some sort of way to collectively come to a decision about these matters.

Focusing specifically on rights, the challenge that the circumstances of politics poses for us is how best to settle, or at least reach some basic compromises about these disagreements. This is true of all sorts of moral concepts, but the importance and primacy given to rights today deserves extra special attention. While we cannot agree on even the most basic facets of rights, they now play a central role in our political and legal discourse. But in the post-war era the status and centrality of these rights to political discourse has changed dramatically, and politics is now increasingly subsumed by an ever expanding “empire of rights” by which increasingly all political discourse must be adjudicated.

Lord Sumption, a former Justice of the Supreme Court, traced the rise and expansion of this empire of rights in the BBC’s 2019 Reith Lectures, particularly in the third lecture, titled “Human Rights and Wrongs,” where he traces the relentless imperialism of the empire of rights and its rapid usurpation and suffocation of democratic politics. The primacy of human rights that is central to the empire of rights means that they are increasingly elevated to absolute and unquestionable principles by which all political action and outcomes must be judged. The implication of this is that these rights must exist independent of democratic choice, entrenched and adjudicated by a process outside of politics and by which politics can subsequently be constrained. The circumstances of politics must be sidestepped by removing rights from the political process entirely.

The obvious way to do this is to entrench human rights in constitutional architecture where it can be adjudicated not by impartial judges and apolitical courts acting as guardians of these fundamental rights. The European Convention of Human Rights was incorporated into UK law in the Human Rights Act of 1998, which as Lord Sumption puts it “empowers the British Courts to strike down any rule of common law, regulation or government decision which is found to be incompatible with the Human Rights Convention.” The result has been countless lawsuits and cases brought before the courts that seek to modify or invalidate democratically enacted laws in the name of human rights.

This might not be a problem if judges and courts were merely interpreting the law when adjudicating rights claims. After all, the courts have played an important role in Britain’s legal order for a long time, and have historically been tasked with adjudicating and clarifying disputes in accordance with settled law that is established by parliament. While even the most basic legal disputes about such matters are not entirely neutral and easy to adjudicate affairs, they do not empower or enable the courts to write laws, but merely adjudicate disputes and different interpretations of the law.

But when judges and courts adjudicate rights claims they aren’t interpreting the law, they are deciding between competing interpretations of rights. They aren’t merely interpreting legal language, they are deciding on what are ultimately political disputes about which account of rights ought to prevail. When Americans battle over constitutional interpretation they aren’t just battling over legal doctrines, they are battling over what are ultimately political accounts of how rights ought to be understood. Constitutional fights between American originalists, living constitutionalists, and common good constitutionalists are political fights, conducted in judicial arenas. Thus when substantive concepts like rights are embedded in constitutional structures, and decided in ostensibly non-political institutions like courts, political disputes are removed from political bodies and put in legal ones. This doesn’t depoliticise rights adjudication, it just politicises courts.

Even so, many would argue that having rights claims adjudicated in courts is still preferable to having them adjudicated in democratic settings. By removing rights from overtly partisan contexts, rights can be insulated from popular pressures, which protects minorities from overbearing majorities. The independence of courts protects the rights that are adjudicated within them. Implicit in this logic is that lawyers and judges are somehow better at adjudicating rights claims, and that legal training somehow makes these people better at objectively and rationally adjudicating disagreements over rights.

There are good reasons to be sceptical of this claim. Even when rights are codified and entrenched in law, there is no purely positivist legal ground on which disagreement over rights can be settled. These rights are ultimately still disputed, and thus settled, on substantive moral and philosophical grounds. Judges have no unique claim to “expertise” in matters of rights interpretation because they have no real expertise in the moral claims upon which rights ultimately rest. If anything moral philosophers and political theorists may have a much better claim to being best equipped to adjudicate and settle these matters.

There is no escaping the “circumstances of politics.” Reasonable disagreements about rights are inevitable, and yet we have to find a way to settle them. The danger of removing rights from democratic politics and placing them behind the veneer of an impartial judiciary is that it comes at the expense of democratic legitimacy, and empowers a narrow caste of lawyers to make what are ultimately political decisions about what interpretation of rights ought to prevail, empowering a tiny cabal at the expense of everyone else. As Lord Sumption observes, the empowerment of the judiciary to adjudicate these claims not only expands the empire of rights, it constrains politics by subjecting more and more political and democratic activity to limitations and restrictions determined by ostensibly non-political actors in the courts. The realm of democratic politics shrinks as the empire of rights colonises more and more political terrain.

The realm of democratic politics shrinks as the empire of rights colonises more

At the same time, uploading and entrenching these rights into the constitutional fabric and architecture does not depoliticise rights, it merely turns the courts, and the constitution itself into a political battleground. This may in the long run be incredibly destabilising for both the constitutional order and an independent judiciary, and undermine the legitimacy and acceptance of a constitutional system. If the constitution becomes another political battleground, and the constitution itself becomes hyper-polarised, with one side perceiving the constitution as merely being a tool for the other side to impose its own agenda, constitutional legitimacy will crumble.

But there is an alternative to this, namely the Westminster order that is in the process of being transformed by the expanding empire of rights. The historic Westminster constitutional order can be defended as a kind of “political constitutionalism” contra the “legal constitutionalism” that the expansion of the empire of rights represents. Westminster political constitutionalism still recognises and protects rights, but settles disputes and disagreements over rights in a political body like parliament instead of legal bodies like the courts. A renewal of this order would hardly be radical, it would simply be a wonderfully British restoration.

If we accept as a brute political fact that there is going to be inevitable disagreement about rights, and that there is no impartial way of adjudicating these disagreements or divorcing rights interpretation from substantive moral and philosophical questions, it is actually deliberative political bodies like parliament that are much better at resolving these questions. The most obvious reason for this is simply the fundamental democratic legitimacy of deciding over contested questions this way. While human rights absolutists and a certain type of liberal may find this intolerable, because they have access to gnostic true knowledge about the nature and content of rights that cannot be disputed, this is a fundamentally anti-democratic way of thinking, and puts rights into direct conflict with democratic norms and deliberation.

Judicial adjudication and imposition of narrow and specific interpretations of rights undermines what Jeremy Waldron has called the “right of rights” the fundamental and basic democratic right of all equal citizens to participate in self-government, which means ultimately participating in decisions about what laws govern them, and what rights are protected by the democratic regime. This doesn’t mean every citizen must directly approve of every law that governs them, but it does mean that the people who write the laws are ultimately accountable to the people who are governed by them.

A deliberative body in which all sorts of groups are represented and able to have their voices heard is one best placed to find compromises when possible.

This basic account of laws originating from parliament, a body comprised of people chosen by the people they represent, is the fundamental bedrock of the political order. Parliament has been for centuries at the very heart of all political and public deliberations, including deliberation over rights. This is not an unfortunate development that must be corrected by taking rights out of the hands of parliament, it should be lauded. If disagreements over rights are inevitable, which they are, and these disputes can ultimately only be settled on moral and philosophical grounds, which is unavoidable, a deliberative and representative institution like parliament is the best place to settle these disputes by both enabling disagreement and deliberation among different political groups and ultimately letting them be settled by representatives who can be held accountable and responsible for these agreements if they dislike the outcomes.

While the relationship between parliamentary deliberation and broader public deliberation is complex and multifaceted and not always clear, parliament does more than merely channel popular impulses, it acts as an intermediary body that assuages the fears of those who worry that making rights part of democratic deliberation endangers minorities. Political parties, internal competition, parliamentary structures and norms, and ever changing and shifting electoral coalitions creates a balance of power within parliament that forces different groups of citizens to work together and listen to one another. This protects minorities because while parties may rule with majorities, parties and parliament are much more complicated than this. Parliaments may rule by majorities, but so to do courts. The difference is a majority vote in parliament must ultimately face the judgement of the voters, a 5-4 decision on a court does not. But parties and parliamentarians don’t represent just the will of a majority or their party, they represent all sorts of different groups and interests that create a complex and interwoven mesh of competing groups, not just one uniform majority group.

This is why parliaments are the best place to settle disagreements about things like rights. If we are going to disagree over these things, it will be important that we try to come to compromises whenever possible. A deliberative body in which all sorts of groups are represented and able to have their voices heard is one best placed to find compromises when possible. Is the will of parliament infallible and never wrong? Of course not, and parliament has undoubtedly made mistakes, including when it comes to protecting (or not protecting) the rights of citizens. But courts are imperfect as well, and often change their mind about things. Parliaments again offer a better corrective mechanism because if it decides to overturn a previous error, it does so with democratic legitimacy, whereas courts often do so at the expense of democratic legitimacy by overturning or rejecting laws supported by large swathes of the population and then offering no clear mechanism by which these decisions can be changed.

Having these matters decided in courts, as happened in the United States, did not depoliticise the issue

The perfect example of the difference here is abortion. We disagree in irreconcilable ways about abortion, and yet we are going to have to come to some sort of collective decision about how the law should treat abortion and the status of the unborn. Having these matters decided in courts, as happened in the United States, did not depoliticise the issue and create broad consensus about abortion, it galvanised large swathes of Americans to political action, and in the process made the courts and judicial appointments a political issue, given that the only way to change abortion laws (or lack thereof) is now through the courts. This makes it impossible for there to be political compromise over an issue as sensitive and important as abortion, and polarises both sides who come to see if in terms of absolute rights, rendering anything other than full legalisation at any stage of the pregnancy or a complete ban a horror to each respective side, minimising the chance for compromises. This is out of step of where most Americans are on the issue, which is somewhere in between. Whereas in places like the UK, where abortion was deliberated and debated in parliament, there are limits on abortion, ones that won’t satisfy everyone, but are surely still preferable to the situation that has been created in America since Roe v. Wade.

There is no perfect solution to these fundamental challenges, but such is the world we live in. Having rights deliberated and settled in democratic institutions instead of legal ones ensures that what are ultimately political debates are settled in political institutions, and forces us to come to terms with the circumstances of politics, accepting that disagreement is unavoidable and the best we can hope for in the face of deep and intractable disagreement are basic compromises that are never permanent, and incentivise all players and political factions to try and change this through political means, through parliament, and not to circumvent politics to impose their views. Just as the populist demagogue seeks to circumvent political institutions to impose their unitary views of society on others, so to do those who seek to use the courts to conduct politics by other means. Having rights protected and deliberated in parliament avoids both these situations, and legitimises the compromises produced to solve these disagreements by both keeping them subject to democratic mechanisms, and offering a clearly defined process by which these never entirely final compromises can be modified or changed.

Westminster constitutionalism, whereby it is parliament, and not the courts, who are guardians of the constitution and protector of rights, is not simply preferable because it is the historic way of doing things, it is preferable because it is a better way of doing things, and of trying to deal with the unpleasant realities of a diverse and pluralistic world in which we disagree about fundamental moral and philosophical questions.

As parliament looks to reinvigorate Britain’s constitutional architecture in the post-Brexit era, it should do so with confidence that regardless of what the doomsayers will say, restoring the constitutional balance and restoring parliament to the centre of Britain’s political order, including returning to it the final say in adjudicating rights, and ensuring that the Human Rights Act can no longer be used to conduct politics by other means and Americanise the Westminster constitutional order anymore. This should be done without fear or trepidation. The world is messy and imperfect, and disagreement is inevitable. The Westminster system is perhaps the most tolerable system that man has yet conceived to deal with these challenges. C.S Lewis observed that “if you’re on the wrong road, progress means doing an about-turn and walking back to the right road; in that case, the man who turns back soonest is the most progressive.” Renewing Britain’s historic traditions does not represent some grim step backwards, but a bold step forwards, restoring the tried and tested traditions that served Britain so well in the past, and can continue to serve it even better in the future.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover