John Jackson (London, Mishcon de Reya): The texts of Nick Herbert's public speeches sometimes give the impression of having been drafted first by a well informed assistant, with a sound knowledge of our constitutional history, and then given a ‘going over’ by Herbert to provide a (Conservative Party) politically correct gloss. The result can read in an oddly disjointed – almost Palinist -  way. This is a pity: it diminishes the value of serious attempts to discuss serious questions in a serious way. The public lecture commenting on a decade of the Human Rights Act, sponsored by the British Institute of Human Rights and delivered by Herbert yesterday at the site of the British Library’s Taking Liberties exhibition is a striking example of this.

Despite the disjunctions, some good, and some bad,  points emerged clearly from  Herbert’s lecture.

He was right to:-

• Warn against the dangers of judicial activism;
• Emphasise that human rights cannot have meaning, or exist, without popular consent;
• Say ‘ – in society we have responsibilities to one another.’ and ’- there is a danger that rights become not tools for protecting the individual within society, but advancing the individual against society.’

But wrong to:-

• Argue that judicial activism has been accelerated by the Human Rights Act which has undermined parliamentary sovereignty and the separation of the powers;
• Imply that popular consent can only be expressed through parliamentary representation;
• Suggest that the best way for our society to ‘re-balance’ rights and responsibilities is via a British Bill of Rights and Responsibilities proposed by a (Conservative) government and, following debate, converted by a (Conservative) government dominated parliament into an Act ‘preventing judge-made law’ and restoring ‘the place of parliament’.

The ‘elephant in Herbert’s room’ is the concept of parliamentary sovereignty – so beloved of those who derive political power from it.

It is all nice and well for Herbert to quote Dicey, the well known Victorian constitutional theorist, as seeing parliamentary sovereignty as the ‘vital’ feature of our Constitution. But the parliament Dicey was speaking of consisted of a monarch galvanised into legislative action on the advice of an elected chamber in agreement with a second chamber with hereditary members. Despite the serious flaws in that system the need for two locks to be opened before legislation could be passed provided safeguards underpinning the theoretical separation of the legislature, the executive and the judiciary – ‘ the powers’.  

But parliament today is something quite different. The combined effect of the power of the political parties for which, in reality, we vote (and which determine largely who may present themselves for election or serve in government) and the whipping system has placed the key to one lock firmly in the hands of the executive. And the Parliament Acts have ensured that it may be unnecessary to open the other lock at all.

We cannot know whether Dicey would have seen such a parliament as fit to be sovereign. But we can form our own views. And so can the judges. There is evidence that it is this change in the character of parliament and, to a substantial extent, the domination of the legislature (one power) by the executive (another power) that has alarmed some judges and engendered both questions about the extent of parliamentary sovereignty and a degree of balancing  ‘activism’ by the judiciary (the third power). The Human Rights Act may have made it easier for this activism to find expression but it is not the cause of it.

From the standpoint of ‘we the people’, we may not like our rights and liberties defined, moderated or suspended by a parliament of the kind that Herbert wishes to be sovereign. But we may not like a situation in which parliament or government can do those things with judicial blessing either. Saying what we do like may involve methods of expression and consent – forms of deliberative democracy – that the political elite may not, in their turn, like either.

The difficulty of the topic does not mean that vigorous discussion is best avoided in the hope that some process of national alchemy will present us with a solution. Whilst, in my view, Nick Herbert is mistaken and is pursuing the wrong quarry, he is to be thanked for speaking out and, even if by accident, making us face squarely the embarrassing fact that our constitutional settlement has become a horrid mess.