The future of human rights in the UK
Professor Sir David Edward
Professor Sir David Alexander Ogilvy Edward, KCMG, QC, FRSE, PC is a Scottish lawyer and academic, and former Judge of the Court of Justice of the European Communities. He was a member of the UK Commission on a Bill of Rights, 2011–12. He is Professor Emeritus at the School of Law, University of Edinburgh.
Review of the Lecture. By Darragh Coffey, PhD Candidate, Faculty of Law, University of Cambridge
Human Rights is a concept, the nature of which has been much misunderstood and often wilfully misrepresented. In the UK politicians and the media have portrayed the Human Rights Act, 1998 as creating a rogues’ charter, which privileges the undeserving and the criminal ahead of the law-abiding and the industrious. Decisions of the European Court of Human Rights dealing with prisoners voting and the deportation of terrorist suspects have been met with outrage and political invective. With calls to repeal the Human Rights Act and to withdraw from the ECHR crystallising into election promises, a great deal of uncertainty surrounds the Future of Human Rights in the UK.
In his lecture to the Centre of Governance and Human Rights, Prof Sir David Edward’s thoughts on this future were deftly framed and informed by his deep and nuanced understanding of the history of Human Rights and Constitutional Law in the UK and further afield. Drawing on sources as diverse as the Scottish Claim of Right of 1689, the writings of Thomas Jefferson, and the Constitution of the Weimar Republic, Prof. Sir David made a strong case for the necessity of human rights to protect the maligned and the marginalised in society from, what DeTocqueville called, ‘the tyranny of the majority.’
In his critique of the Tory human rights proposals, Prof Sir David referred to the terms of reference for the Commission on a Bill of Rights: ‘to investigate the creation of a UK bill of rights that incorporates and builds upon all of the UK’s obligations under the ECHR.’ He argued that it is desirable to build upon the existing ECHR rights and protections to create a Bill of Rights which is more specifically relevant to the UK legal and constitutional system, but which enshrines the full protections currently offered under the Convention. The limitations and qualifications placed on Convention provisions in the Conservative party’s proposal are incompatible with such an aim.
Prof Sir David convincingly demonstrated that Dicey’s traditional concept of parliamentary sovereignty, refers to legislative sovereignty rather than executive sovereignty. Under the current political conception of parliamentary sovereignty, the constitutional strength of the executive allows the will of the Government, to ‘defy… the possible or certain will of the nation.’ In the face of such unfettered executive power, it is perhaps impossible to create a robust system for the genuine vindication of fundamental rights of the most marginalised in society if such vindication does not coincide with the perceived political imperatives facing the Government.
Prof Sir David Edward very effectively highlighted that the desire to domestically contextualise the rights enshrined in the ECHR in a UK Bill of Rights should not mandate substantive changes to the content and applicability of those rights. The base level of protection provided by the ECHR should instead provide a foundation upon which to build a future UK Bill of Rights which realises Churchill’s vision of the ‘enthronement of human rights.’