Redressing the Democratic Deficit in Human Rights

20 April 2012 by Wessen Jazrawi

Who should decide questions of human rights, Parliament or the courts? Is there a democratic deficit in human rights? If so, how do we go about addressing it?  These are just some of the many questions asked at the conference hosted by the Arts and Humanities Council on Redressing the Democratic Deficit in Human Rights.

This conference took place on 17 and 18 April and was timed to coincide with the Brighton Conference. It was also timed to coincide with the launch of “Parliament and Human Rights”, research undertaken by Paul Yowell and Hayley Hooper, both of Oxford, and Murray Hunt, legal advisor to the Joint Committee on Human Rights (“JCHR”).

The conference featured a variety of eminent speakers and some lively debate took place over the two days. David Feldman, first legal advisor to the JCHR, kicked off events yesterday with the quote (I paraphrase): “there is nothing so dangerous in Parliament as when everyone agrees”, indicating that this is what took place following 9/11, and it was due to this that the JCHR’s mission became clear.

by Wessen Jazrawi

Murray Hunt, Paul Yowell and Hayley Hooper then presented the findings of their research. I shall not go into these in detail – the full report may be found here – but shall pick up on just a few points.

There is a democratic deficit

First, the report asserts that there is a democratic deficit – that Parliament was insufficiently involved in debates about human rights. Second, one of the aims of the report was to ascertain to what extent the work of the JCHR was taken into account by Parliament. This led to some interesting findings, such as the fact that two thirds of all references were in the House of Lords rather than the Commons. This fact resurfaced on the second day and some interesting discussion was had as to the less partisan nature of the Lords which enables it to engage more with human rights issues. In the Commons, Labour members referred to JCHR reports the most frequently; in the Lords, it was the Lib Dems.

It was found that the JCHR provoked debate, influenced debate, and led to more informed debate. However, it was difficult to be completely precise about exactly what changes or amendments could be said to be attributed to the JCHR.  Similarly, in a number of cases, the courts (both domestic and Strasbourg) have referred to JCHR reports, but there was a lack of a systematic framework in terms of the courts’ treatment of JCHR reports.

Janet Hiebert of Queen’s University Canada pointed out that scrutiny tends to come after the Government have already committed themselves to a bill, at which point they are reluctant to make any significant changes, regardless of the input that the JCHR might make. She also found that, if the Government did agree to any rights-based amendments, it tended to be only when it looked like they would be defeated in the Lords. She also criticised more generally the reports of the JCHR which she felt ought to be more user-friendly: shorter, less abstract and more punchy. This criticism was repeated a few times throughout the conference.

What about other jurisdictions?

We also heard on the first day from the first of other jurisdictions to present on their systems, Thomas Bull and Iain Cameron from Sweden, who reported that there was no democratic deficit there. They described their system, which was characterised by slowness, openness and compromise. Laws were considered for 2/3 years and a variety of views were canvassed: this lengthy and thorough preview lessened the chances of judicial review later. If laws were reviewed by the courts, they often tended to defer to the will of Parliament; a key reason given for this was that the courts were given material to defer to, namely a report by the Parliamentary Select Committee that was the considered the voice of Parliament.

Unelected judges… or legislators?

The Right Hon. Sir Stephen Sedley chaired one of the sessions. He asked where the democratic deficit might reside, to the extent that there was one, and then turned the argument on its head. He pointed out that democracy in this country resided in 2 Houses, one of which was unelected, he mentioned whips, members of the Church sitting in the House of Lords ex officio, the executive being the major power in the land, and the fact that departments of state were the ones who ran the ministries.

He also took on the notion that judges were “unaccountable and unelected”, arguing that this cliché that we owe to the popular press was sorely at odds with reality: no other body was required to give as full reasons for its decisions, and the fact that they were appointed on merit versus being elected meant there was a greater chance of being independent.

Implications for Judicial Review

There then followed an excellent group of speakers, who discussed the implications for judicial review. Dr. Liore Lazarus considered the criteria that the courts should use in evaluating the democratic process, while Dr. Aileen Kavanagh considered how much presumptive weight is, and should be, given to the “considered opinion” or “settled will” of Parliament.

The strike down power used in Scotland was raised by the audience, as was the Canadian model, where the strike-down is suspended for 12 months to allow the Government to remedy changes. Conor Gearty countered these arguments, statin that the democratic process was that which was the most important and hence deference should be given to Parliament’s views. He noted the assumption that the judges were the “good guys” and stated that it very much depended on the judge in question.

How to make it better

If Day 1 can be characterised as courts vs parliament, Day 2 focused more on the question of how the role of parliaments could be enhanced to ensure the protection of human rights. Murray Hunt was one of the first speakers, pointing out that institutional machinery had not yet caught up with the emerging consensus that all branches of the state must be involved in protecting human rights. Human rights must be mainstreamed before they will be fully protected.

We also heard on Day 2 from Philip Leach, Director of the European Human Rights Advocacy Centre, who, together with Alice Donald and Jane Gordon, has been carrying out research into Parliament’s role following judgments of the European Court of Human Rights (see Donald’s post on UKHRB today). They have been looking at the situation in the UK, Germany, the Netherlands, Romania and Ukraine, and made some very interesting findings.

For instance, while the political implications of e.g., the M v Germany judgment were recognised in Germany, there was never any question that it would not be implemented. But Parliament took no steps to do so, leaving that to the executive. However, there was an impressive example – within 24 hours of the Salduz v Turkey judgment, Germany had recognised its practice was not in conformity and had pledged to amend it. In the Netherlands, there was a heavy pre-legislation review but Parliament did not take the lead. The annual report was not debated in Parliament, although it did include not only judgments against the Netherlands but judgments against other states.

Jeff King from UCL presented the findings of his research on Parliament’s role following s.4 declarations of incompatibility. He found that out of the 19 declarations of incompatibility, 14 have involved a parliamentary response. In 6 out of the 11 cases that resulted in amending legislation, a tacking amendment was made, and in 3 a full Act was drafted. It was found that the latter resulted in a much better debate and in better scrutiny by Parliament.

The Australian experience

Professor George Williams educated us about the Australian system, which does not have any national human rights legislation. This fact does not concern Australians, however, 61% of whom believe they do have a bill of rights (when pressed as to what this included, the most commonly cited right was freedom of expression; the second most common was the right to plead the 5th). What is interesting is that the reason cited for their decision not to have a bill of rights was that their examination of UK tabloids suggested that it would be divisive. For the same reason, they decided to deny any role whatsoever to the Courts, even one of interpretation. Parliament is king, so to speak.

Surprise from Holland

Martin Kuijer from the Netherlands described the system there, namely that judges were forbidden from reviewing the constitutionality of laws, but at the same time, their monist system meant that there was the direct applicability of international legal norms. Hence, if any debate arose, they would naturally look to international legal norms, meaning that Strasbourg was not considered a foreign influence. He found it strange that there was any question of not implementing Strasbourg judgments, noting somewhat drily that the Dutch believed in pacta sunt servanda.

Their annual report cleverly includes those cases that were considered inadmissible to ensure that those cases that went against them in Strasbourg were kept in perspective. His recommendations for the UK was that a more structured manner of entering into a debate with the Court should be put in place.

Germany not shocked

Next up was the system in Germany, set out by Almut Wittling-Vogel.  She explained that Germany was used to judicial review and to declarations of incompatibility and hence decisions by Strasbourg did not shock them. Their reports also include judgments against other states where they might be of significance to Germany.

We also had a presentation from Marie-Louise Bemelmans-Videc, former member of the Committee on Legal Affairs and Human Rights at the Parliamentary Assembly of the Council of Europe, who emphasised that subsidiarity was one of the key ways of protecting human rights in member states. She said the sheer number of repetitive cases indicated that member states were not doing what they ought to have done and that these cases heavily undermined the system. She also noted that very few parliamentary mechanisms exist across the CoE member states, with the JCHR being one of the rare examples.

View from the Council of Europe

She was followed by Andrew Drzemczewski, Head of PACE Legal Affairs and Human Rights Dept at the Council of Europe who stressed that it was not enough to say that parliaments must be involved: a structure was needed. Even with those parliaments who did engage in scrutiny of implementation of judgments or review of legislation, it was not entirely clear what was done in practice. He criticised the fact that the role of national parliaments and PACE were left out of the Izmir declaration, and considered it a positive development that the role of parliaments was now recognised and would be playing such an important role in Brighton.

Everyone’s responsibility, not someone else’s problem

For the sake of brevity, I was unable to include all speakers. Even with those speakers whose presentations I have mentioned, it is difficult to do justice to the excellent discussions that were had on the nature and extent of Parliamentary involvement and the role of the courts. An interesting side effect, for instance, of the effectiveness of the JCHR is that apparently it has led the rest of Parliament to disengage, comforted as they are that the JCHR is on top of things.

While it is no doubt a good thing that we have an excellent committee in the JCHR, it would be preferable if human rights were considered everyone’s responsibility, rather than someone else’s problem.

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