I very much welcome the book’s overall theme that legislation gives effect to and protects human rights. It seems incredible that the UK’s leading judge should have thought that until the advent of the European Convention of Human Rights in 1951 UK law did not recognise human rights other than through the common law. For adoption of the Convention occurred during a period from 1944 when in the UK many human rights were being given a firm, statutory foundation – rights to education in the Education Act 1944, to treatment in ill-health through the National Health Service and to housing though the council housing programmes of the post-war governments. It was also a period when the potential for democratic and civil rights was being extended across the globe to nations now independent, those rights recognised in the bills of rights in their new-minted constitutions. Legislation as promoting and as a prerequisite for human rights seems a self-evident, if neglected truth.
There are the useful corollaries to the argument. One is that legislation should not be seen as in opposition to rights or necessarily their enemy. The Human Rights Act 1998 was introduced in the UK at a time when in other contexts, for example anti-social behaviour, the message was that rights came with duties. But that other side of the coin was often lost in the rights-talk of the Act. What the authors describe as the two term structure of rights has meant that duties are overlooked in the typical structure of argument in a human rights case: right asserted; state interference with that right alleged; if established is it justified as proportionate. One can well appreciate the authors’ contention that all this suggests that the state, the legislation under which it acts and the community behind it are being cast as destructive, rather than as protective of rights. Also lost is that rights are best protected and advanced through collective, rather than individual action. Whether as the authors suggest the solution lies in recasting the understanding of rights as relations between persons – three term rights – I am less certain.
Another useful corollary is that legislation is reasoned action, or at least that is the “central case”. Certainly the notion of legislation as an attempt to advance the common good is closer to the empirical reality than as some aggregate of community preferences. In practice there are different notions of the common good; the common good may be corrupted by special interest; the reasons for legislation are sometimes obscured by rhetoric; a legislative provision may be for symbolic rather than instrumental reasons; and the individual legislator may vote for party or personal reasons. But if legislation is to win support, even among those normally in the majority, it must have a rationale which accords with some idea of community interest. That is why during its passage it may require amendment to come into line with its guiding rationale.
The third useful corollary is to underline the role of the legislature in protecting minority rights. To think that the courts have had this role, certainly in the UK, flies in the face of legislated social reform for the benefit of minorities dating back to the nineteenth century. In the last century some milestones were the early social security laws (Old Age Pensions Act 1908: National Insurance Act 1911), the first race discrimination legislation (the Race Relations Act 1956) and the Equal Pay Act 1970. That these have not always been effective, or have fallen short of the desirable, does not undermine the truth that legislation has performed the indispensable role in advancing minority rights.
There are several quibbles. First, although the authors focus on their central case, while acknowledging deviations from it, there seems little in their account to explain why legislatures fall short (or worse) and how they are to be brought into line. Occasionally the courts have a role, as did the US Supreme Court mid-twentieth century with gerrymandering in the southern states. However, I accept that in deviant cases very rarely do the courts offer a remedy, and are likely to be infected by the same disease. Secondly, the executive rates little mention, although in the Westminster system it drives most legislation. The authors give two telling examples of legislation furthering human rights, Chile’s building code and the framework for claims under the Spanish healthcare system. Yet both would have been the product of government initiative, enshrined in legislation, and the specification of both would be contained in forms of secondary legislation adopted by the executive. The other point about the executive is that its actions are typically the target of human rights claims; rarely in the UK will the attack be on the legislation itself which authorises the executive’s acts under challenge.
Hon. Sir Ross Cranston sat on the High Court of England and Wales, Queen’s Bench Division, from 2007-2017