The Writing of Human Rights: Government, Parliament and the Courts Must Be Collectively Responsible
Puddephatt, Andrew, New Statesman (1996)
The government will shortly set out its plans to incorporate the European Convention of Human Rights into British law. Very few moments are truly historic. This one is. For the first time, our fundamental rights will be written down in a way that can be easily understood and will be enforceable through the courts.
Yet an important issue is still to be resolved: the mechanism by which the ECHR will be incorporated. Inevitably many lawyers with their own vested interests are starting to argue that for a bill of rights to have meaning the courts must be given the power to strike down laws. This power is the equivalent of that granted to Canadian courts under their Charter of Rights, known as the "Canadian model". Other models competing in this incorporation beauty contest are those that apply in Sweden and, more particularly, New Zealand. In both these countries, where there is a clear parliamentary role in monitoring legislation, the system is derided as weak or ineffective by the lawyers' lobby.
And what of the government? The Lord Chancellor, Deny Irvine, says he has an open mind. In this case, I believe he is right to be cautious. The government is contemplating a unique, innovative and radical approach to protecting our rights: the development of a "British" model. How extraordinary, then, that some commentators have misinterpreted this as acting conservatively.
What is even more extraordinary is that suddenly so many lawyers are claiming only judges can be entrusted to protect basic rights. For example, judges in the Irish Supreme Court sought to restrict the right to travel of a young girl seeking an abortion, and further sought to restrict the rights of people to receive information about abortion. Elected representatives in the Dail, swayed by public opposition to the decision, called a referendum that changed the constitution.
All human rights questions are complex. They involve fine judgements and moral stands. What right of privacy should paedophiles have when balanced against the need to protect children? What right should tobacco companies have to promote their products when balanced against the need to protect public health? Who is to decide where this balance lies? These decisions are too important to be left to one centre of power. And I don't believe anyone is fooled by the argument that we have only two options - to leave things as they are or to hand the power over to unelected judges - when judges in Britain have such a poor record of protecting individual rights.
If the Labour Party is intent on wider democratic renewal it will want the protection of fundamental rights to invigorate a wider democratic agenda rather than cramp it. …