5.4.7.4 Human Rights Law Overruling National Legislatures

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at http://www.patternsofpower.org/edition03/5474.htm)

Incorporation of human rights into law has the effect of constraining future governments from making changes that might suit the current political mood but which inflict damage on some sections of society.  This is a formalisation of distrust, as expressed by John Griffith:

“The justification for a Bill of Rights is that, on certain matters, democratically elected representative assemblies, often controlled by government majorities, are not to be trusted with the protection of ‘fundamental rights’.  It therefore follows that whenever the courts are of the opinion that laws passed by such assemblies conflict with the provisions of a Bill of Rights, those laws should be struck down by the courts”.[1]

This distrust may seem unnecessary in a modern liberal democracy, but it was a precaution that has been thought necessary by politicians in different parts of the world after they had forcibly been reminded of the dangers of oppressive government; they wanted to make it less easy for their successors to override important liberties.  The times at which the legislation was introduced illustrate this point: the Amendments to the American Constitution after its war of independence; the Universal Declaration of Human Rights in the aftermath of the Second World War; the South African Constitution after the end of apartheid.  European Human Rights legislation has a particular relevance, reflecting the lessons learnt from the way that Hitler was able to oppress minorities without any mechanism for anyone in Germany or any other country to stop him.

The relevance of human rights legislation in restraining governments has been particularly topical recently with regard to terrorism, where politicians were threatening the civil liberties of the entire population.  As one former British cabinet minister commented, after a terrorist incident there is always a temptation to legislate:

“the motivation was to be seen by the public as ‘doing something’ in the aftermath of an atrocity… and that a swift response had the effect of boosting morale and restoring public confidence”.[2]

The House of Lords used human rights legislation to prevent the indefinite detention without trial of nine “suspected international terrorists” in December 2004, thereby protecting the ancient right of habeas corpus from being lost in favour of a perceived need for political expediency.[3]  A similar example occurred in America in 2007, related to the use of electronic surveillance, when the US Supreme Court declared that “two provisions of the USA Patriot Act are unconstitutional”.[4]

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[1] John Griffith (the Emeritus Professor of Public Law at LSE) in his essay, Making Rights Work, in the book of the same name, edited by Penny Smith, p.  91.

[2] Quoted at a seminar run by the LSE Centre for the Study of Human Rights, and published in Prospect Magazine, October 2007, in an article by Conor Gearty entitled Dilemmas of terror, which was available in May 2018 at http://www.prospectmagazine.co.uk/magazine/dilemmasofterror/.

[3] This ruling by the House of Lords, which was referred to in this book’s Introduction, was reported by EurActiv.com.  It was available in May 2018 at https://www.euractiv.com/section/uk-europe/news/house-of-lords-uk-law-breaches-human-rights-convention/.  The ruling was a direct consequence of Britain’s membership of the EU, and its subsequent enactment of the UK Human Rights Act 1998, as described earlier (5.3.5.4).

[4] On 27 September 2007, the Washington Post published a report entitled Patriot Act Provisions Voided, which was available in May 2018 at http://www.washingtonpost.com/wp-dyn/content/article/2007/09/26/AR2007092602084.html.