I have been wrestling with the contributions by Daniel Jones and Stuart Weir to the debate sparked off by Keith Ewing’s recently published account, as Jones put it, ‘of the failure of Parliament and the Courts to protect our fundamental rights’.
Jones criticises Weir, a peacemaker, for failing to address the fundamental questions - with whom should power, the final say, ultimately reside in relation to our fundamental rights and the balance between liberty of the individual and the needs of state security? Should it be the judges or our elected representatives in Parliament?
Parliamentary sovereignty is at the centre of the debate and, as someone who believes in the sovereignty of the people as the only legitimate sovereignty, I find it difficult to disagree with the support Jones gives to the notion that good quality parliamentary democracy provides the best way to ensure that politics, the means whereby we settle the rules we live by, is a process ‘whereby society comes together to pursue the common good through debate, reflection and compromise’.
There is, however, a snag. How is that common good defined and can society pursue it by any means that it chooses? Possibly by accident, our Parliament answered that question when, in the Constitutional Reform Act of 2005, it asserted that the rule of law is one of our existing constitutional principles. That assertion placed an obligation on our judges to interpret laws made by Parliament in a way compatible with the rule of law. Parliament made no attempt to define the rule of law: it left that task to the judges.
Arguably, adherence to the rule of law is one of the few principles guiding the proper behaviour of states which is accepted by the international community as being ‘right’ and of universal application. It is important therefore to understand what it is.
An attempt at definition was made, after the passing of the 2005 Act, by Lord Bingham, then the UK’s Senior Law Lord. He suggested that a definition could be inferred by setting down in clear terms eight sub-rules. One of those that he postulated was that the rule of law requires states to recognise and protect fundamental human rights. One definition of these is contained in the Universal Declaration of Human Rights made by the General Assembly of the United Nations in 1948 and this must have been one definition that Bingham had in mind. It follows that if Bingham is right and Parliament passes legislation which is clearly incompatible with that Declaration, there is a problem. And a problem made, on the face of it, by Parliament and not by the judges.
I say ‘on the face of it’ because there is an inherent and unavoidable incompatibility between the interests of the state and those of its individual citizens, whatever they may be suspected of doing. This makes discussion of who should have the last word singularly sterile. It is like watching the remnants of one’s bath water go down the plughole – the inescapable black hole in every household – it goes nowhere.
However, given what Parliament did (and to be realistic cannot undo) when it passed the 2005 Act, if Parliament and the judges ever take a different position on which interests should prevail in a particular case on ‘rule of law’ grounds we will be faced with a first class constitutional crisis. That is a most unsatisfactory position and should not be left as it is. One answer may lie in a written constitution arrived at democratically and interpreted by the judges; another may lie in a Constitutional Court containing a leavening of lay judges as in South Africa. Neither would be perfect but both would be better than what we have now.
In the meantime it is tempting to say that given a captive Parliament which is yet to escape from executive control, it is better to accept the imperfections of the judges - however justified Keith Ewing’s remarks may be. I am not happy with that: we need fundamental change soon and we need it badly.