The European Convention of Human Rights is developed and interpreted as times change; but is there a democratic imbalance when only lawyers and judges can do this? Particularly where the rights being litigated are not just matters of strict law but properly political issues.
It is a valid democratic concern that the Human Rights Act, which brought the European Convention into our own law, may encourage political questions to be converted into legal questions, taken to an unelected judge rather than to Parliament. Such wider political questions affect not just the rights of the individual but of society at large – and many consider that their voices on such matters are not being heard in the appropriate forum: Parliament.
Lord Bingham asked of the Human Rights Act, ‘Which of these rights, I ask, would we wish to discard?’ There have been very many important and good decisions reached with it, which might not have been without it. It is a sign of the importance of individual rights that no-one is suggesting that the Human Rights Act be repealed without replacement. What is at issue is the extent to which reform can achieve the balance between the courts protecting individual rights, and Parliament determining the contents and limits of broader social rights and privileges.
The quite proper concern is that the widely drafted Convention rights have drawn our judges into considering or deciding intensely political questions, such as the right to die, prisoner voting, gay marriage, the lawfulness of life sentences, the registration requirements for sex offenders, the banning of hunting with hounds. The conversion of political questions into legal questions may have the long-term consequence of putting social and political rights into the hands of the (very) few; a decision on a given question may be decided by no more than 1 High Court judge followed by 3 Appeal Court judges and 5–7 Supreme Court judges.
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