The democratic legitimacy of human rights
28 February 2012
Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.
The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.
Two approaches
Professor Bellamy contrasted two approaches to political theory in answering the talk’s central question. The first sees courts and the judiciary as our protection against the state. We need them, and need them to be strong, because governments cannot be trusted always to do right. Nor can they be allowed to be judges in their own cause, so the judiciary must have power to adjudicate on its actions, often by reference to an independent, entrenched, constitution. This is the ‘legal constitutionalist’ stance, and it legitimises IHRCs by applying the same logic to inter-state relations: states cannot be trusted to act properly, nor be independent, so we need international courts governing their relations.
Professor Bellamy’s preferred view was unashamedly pro-democratic. A state’s constitution is not a free-standing entity, existing outside of its politics. Instead, the political structures themselves, such as competing parties, one vote for each person and free elections, take on constitutional properties. This is ‘political constitutionalism’ and Professor Bellamy made a persuasive case for it.
From this point of view, rather than a powerful judiciary judging laws according to some entrenched doctrine, the rights claims of people are protected when each person has equal respect for their views and rights are made to apply across the board. The universality of rights will inevitably lead to a democratic state: and democracies are the best protectors of rights according to this view. The judiciary is only to have a weak power of review over democratic decisions.
It would seem this contrast would resonate with our pre-eminent judicial minds, whose recent debate was reported on this blog: Lord Sumption’s call for the judiciary to remain out of politics and Sir Stephen Sedley’s rebuttal of his criticism. Both seem to take the political constitutionalist line, not wanting judicial interference with democratic structures, although they disagree as to whether this is being achieved.
Democratic legitimacy
So if so much is vested in having a democratic state, how can IHRCs – that are not the product of nation-states’ democratic decisions – carry legitimacy? According to Professor Bellamy, they do if they fit two criteria: the countries that sign up to the IHRCs have to be democracies and there must be equal concern and respect between states, just as there should be within states.
The ECHR does fit these criteria, and that’s why it has legitimacy. According to this view, the very fact that democracy is such a large feature of the Convention countries (although they clearly vary in their commitment to it) means that rights are better protected within and through IHRCs. And this is something that not only brings legitimacy, but should mean that even controversial judgments should be followed.
Professor Bellamy argued that mature democracies support people’s rights better. For support, he cited the low number of cases against, for example, the UK, are successful in Strasbourg. Only 2% of applications are ultimately successful (it would seem he agrees with Adam Wagner’s criticism of a recent paper counting only those that pass the first stage of admissibility to the ECtHR).
However, despite this impressive reasoning, Professor Bellamy also said that the ECHR only truly has legitimacy because of domestic enacting legislation. This begs the question what would happen if the Human Rights Act was repealed, and suggests that IHRCs have democratic legitimacy, but only as a function of laws voted for by elected representatives.
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The domestication of international human rights: An old but current challenge
http://rightsincontext.eu/2012/02/28/the-domestication-of-international-human-rights-an-old-but-current-challenge/
“Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation.”
Of course we should obey the law! It’s not up in the air!
I can see that a weak power of review might work in conditions where all rights really are equally respected – but arguably, in that blessed state we might not need courts at all. Meanwhile, we need a system that works in the messed-up, imperfect conditions we actually find ourselves in – and I think the combination of a democratically-chosen government and strong judicial review is the most effective anyone has yet come up with, albeit not without its problems.
I would say that democratic authorisation comes from the fact that it was Parliament who signed up to the Convention and the jurisdiction of Strasbourg. It always retains the option of withdrawing from both, though there would be turbulent international and domestic political fallout. It should also be remembered that tyrannous regimes have sometimes come to power through elections, and the rights of the majority are rarely threatened; Convention rights, it can be argued, are needed to protect the unpopular minority.
That said, until the Human Rights Act 1998, fundamental questions involving freedom of speech, freedom of religion, the right to life, the right to vote and so forth would have been debated before and settled by Parliament. In those days the true guarantee of freedom in Westminster countries was often said to be the regular ballot box, rather than some lawyers’ document.
Moreover, aside from the question of sufficient democratic legitimacy, it remains questionable whether the courts are a better forum to determine hotly contested ethical, moral and religious questions. For a start, irrespective of whether one agrees with the answers they come up with, courts can only flesh out the broad detail of Convention rights slowly, as and when cases come before them, which leaves much uncertainty.
http://news.bbc.co.uk/2/hi/uk_politics/4509530.stm Britain deserves a better law than the law of the jungle
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