Meddling judges are using Human Rights Act to play politics
WHO should decide if abortion is legal? It is a highly contentious issue with unmovable polarised views. So who should make the law? Voters, via the MPs they elect and can remove if they don’t agree with the decisions they take? Or unelected and unaccountable judges, over whom voters have neither say nor sway?
This is not some abstract question. It is directly and immediately relevant not only to abortion law but also to many of the most important and divisive current issues.
According to reports, the Government is preparing to change the Human Rights Act which, together with the growth of judicial review (when judges rule on a decision taken by government or other public bodies) has led in some areas to the creeping replacement of decision-making by MPs with lawmaking by judges. It goes to the very heart of our democracy.
Under America’s system of government, judges have a key role in determining some of the most politically divisive issues. Politicians – from the president and Congress down – can only act in accordance with the US Constitution and the US Supreme Court decides if they are acting unconstitutionally.
IT IS now, for example. reconsidering its landmark 1973 ruling, Roe v Wade, when it decided in favour of womens’ right to abortion, striking down as unconstitutional many federal and state anti-abortion laws.
So, if you want to change the law on abortion in the US, it’s not politicians – and thus voters – who matter. It’s judges.
Here, abortions were legalised not by a court ruling but by an Act of Parliament – the 1967 Abortion Act. There have been arguments around that ever since, but they have all been conducted in parliament, with MPs and peers rather than judges as the decision makers.
That has long been one of the great divides between the UK and the US (and European states which also hand constitutional decision making to the courts). It is sometimes said, wrongly, that this is because we don’t have a constitution. We do: but ours is not a document known as “the constitution” but rather the accretion of history and tradition.
Increasingly, however, issues which would always have been decided in parliament are now being decided by the judiciary. Take privacy, which has been in the news with the Duchess of Sussex successfully suing the newspaper which revealed the contents of a letter she wrote to her father.
Until recently, there was no such thing as a right to privacy, and Thomas Markle would unquestionably have been free to reveal the contents of the letter. But while no law has been passed, directly, to change this and not a single MP has voted to prioritise a letter writer’s right to keep its contents private over a recipient’s right to tell people about it, the law has nonetheless changed.
Judges have ruled that the law has changed because of the 1998 Human Rights Act.
The HRA did something very simple but hugely radical: it incorporated the European Convention on Human Rights into British law. Previously, you would have had to apply to the European Court of Human Rights for a ruling. Now, under the HRA, all British judges must take account of the European Convention. Article 8 states, “Everyone has the right to respect for his private and family life, his home and his correspondence.” Bit by bit, ruling by ruling, the judiciary has built this into a full-on right to privacy, overriding any public
interest in freedom of speech.At the weekend, Justice Secretary Dominic Raab implied that the Government will amend the HRA to redress that balance. Quite right too: it is for MPs to decide issues as fundamental as privacy.
THE HRA has also led to a huge rise in “political litigation” – using the courts to fight political battles. In recent years we have seen human rights used as the mechanism for opponents of government policy on issues such as benefits reform, immigration and deportation of criminals, all areas where the Government can argue it has the support of voters.
Take the Channel boats crisis – some of the options to tackle the problem have been ruled out from the start because they will almost certainly be rejected by the courts, under the HRA.
Human rights sound wonderful. Who would be against them? But in a democracy, any decision to place some issues beyond politics and debate comes at a price. It may be, for instance, that we do agree as a nation in a right to privacy. But the place to decide that is parliament, rather than the courts.
‘It is for MPs to decide issues that are as fundamental as privacy’