Over the years, there has been an ongoing debate over whether there should be a Bill of Rights for the United Kingdom (UK). The Government is committed to considering the need for a Bill of Rights and other political parties have expressed interest in developing one. Parliament’s Joint Committee on Human Rights (JCHR) has demonstrated in its report that there are many groups in society, such as older people and adults with learning disabilities, whose human rights are insufficiently protected. They argue that UK Bill of Rights and Freedoms (BRF) is desirable in order to provide necessary protection to all, particularly to the marginalized and vulnerable people. This essay will discuss on the two main issues considered by the Committee, namely the judicial review (JR) and entrenchment, in reference to some legal and political theories outlines as structured below.
Arguments in favour of JR/ entrenchment
As mentioned in the report of JCHR, the adopting of the BRF sets out a shared vision of a desirable future society: it is aspirational in nature as well as protecting those human rights which already exist. JCHR suggests that a BRF should give lasting effect to values shared by the people of the UK by including liberty, democracy, fairness, civic duty, and the rule of law. In considering JCHR’s proposal, it is pivotal to gain a simplistic appreciation of Ronald Dworkin’s democracy theory to illustrate the arguments in favour of JR and entrenchment.
Dworkin has been a firm defender of JR of constitutional rights in the United States. Dworkin believes that government should be bound to certain rights by the very authority that structures and empowers governmental procedures, and this commitment should be enforced by the courts. He says that a constitution principle enforced by independent judges is not undemocratic and there is no trade-off between rights and democracy. Democracy does not insist on judges having the last word, but democracy also does not insist that the judges must not have the last word. He suggests that in order to provide a democratic justification for the judges’ prevailing, one has to show not only that they have democratic credentials but that they have better democratic claim than that asserted in the legislative action in question.
Further, Dworkin alleges that democratic constitutional theory ought to be oriented primarily to results. In every society there will be questions whether enacted legislation conflicts with the fundamental principles of democracy. These questions should be assigned to whatever institution which is likely to answer them correctly. In some countries, such as UK, this may be the legislature but often there is reason to think that the legislature is not the safest vehicle for protecting the rights associated with democracy. In that case, we should assign the issue to the courts, if we think they are a safer bet. Dworkin says we should not be deterred by the fact that courts are not constituted in a way that makes them democratically accountable. Accountability does not matter, all a partisan of democracy should be concerned is that courts are reliable in making good decisions about democracy. Dworkin seems to be suggesting that if a political decision is about democracy or the rights associated with democracy; then all that matters is that the decision must be right, from a democratic point of view.
Dworkin maintains political equality as a distinct sphere of equality, by adopting a dependent conception of democracy that focuses on substantively just outcomes. If a question comes up for political decision in a community, a member of the community might reasonably ask to participate in the decision on equal terms with his fellow citizens. It would surely be absurd to deny his participation on the ground that the question is one about democracy, because failing to address his concern that a question about democracy, as much as any political question, should be settled by democratic means.
Hence, if the acceptance of the JCHR’s proposal is in fact a wrong decision about what democracy requires, although there is a loss to democracy in the substance of the decision, it could be a great consolation for citizens that at least they have made their own mistake about democracy rather than having someone else’s mistake foisted upon them. Process may not be completely relevant to democratic decision-making; nonetheless, since the decision is about democracy, process is therefore irrelevant.
Arguments against JR/ entrenchment
In responding to Dworkin, Waldron seeks to narrow the scope of his wide-ranging critique of JR to one issue: the claim that JR is justified because judges are good at morality. More precisely, he argues against the claim that judges are better at morality than legislatures, which, in his view, is an important strand in any justification of the place of judges as the final authority when it comes to the great questions of constitutional law – the interpretation of the moral standards entrenched in bills of rights.
It is submitted that people’s commitment to democracy and self-government runs deep, and only with great regret would we admit that the people are incapable of deliberating and deciding about the questions that matter most. Lawyers and political theorists too often defend constitutional limits and JR on the basis that there are moral limits upon what a democratic people may do. The question as to who should decide the content of those limits may arise in the context that they are durably contested and there is no algorithm for producing a right answer. Accordingly, Waldron has highlighted the case in favour of allowing the people to decide these fundamental questions themselves.
Waldron’s principle is that the people ought to govern themselves on the basis of their own judgments about justice and other things. He recommends majoritarian legislatures as the institution best suited to implement this principle, and he recommends them on the ground that legislatures (even though not simply equivalent to the people) will be sensitive to the people’s moral judgment, since the people can boot wayward legislators out of office. But that is not precisely right. It is not “the people” but rather “the voters” or “the electorate” who can remove legislators from office. That is why Aristotle, said that electing officials was an aristocratic form of government; he recognized that only elites would win elections. According to Aristotle, true democracies choose public officials through lotteries that give everybody an equal chance to serve in the government.
Waldron’s pre-commitment is simply a system of “constitutional constraints and mechanisms of JR and other mechanisms that responsible rights bearers take against their own imperfections”. Waldron feels that the system possesses a number of flaws, such as the pre-meditation involved in “deciding to decide”. Waldron argues that individuals will not be bound to certain actions, because “they can always undo their ties should they want to”. Furthermore, opinions and viewpoints change over time. Eventually, it becomes unclear of or controversial over what the people have actually committed themselves to, and this inconsistency renders reliance on pre-commitment obsolete.
Additionally, Waldron proposes that the judiciary cannot prevent individuals from judging their own case. Similarly, the judiciary can only clarify the nature of pre-commitment by asking the people. In this sense, the people become the authority of their own circumstance, which staunchly opposes the designated roles specified in the rule of law. Moreover, Waldron ascertains that in upholding pre-commitment, majorities may disagree in deciding the solution to a particular problem. He expects the problematic disagreements to persist, develop and change in unpredictable ways. As a result of these complications, the judiciary is not qualified to uphold the pre-commitment of the people any more than individuals are. “In these circumstances, the logic of pre-commitment must simply be put aside, and we must leave the members of the society to work out their differences and to change their minds in collective decision making over time”, as Waldron suggested.
Should judiciary review legislation?
Having noted that one of the main arguments for the new BRF is that it would be an opportunity to strengthen the capacity of the courts to actually block or strike down government laws and policies that violate basic rights and liberties, it may be beneficial to resort this argument to the contribution of Dworkin and Waldron in this aspect. Dworkin, a proponent of judicial activism, believes in “leaving issues to the court’s judgment” and investing our faith in their decisions. Staunch opposition to support for JR is apparent in arguments from Waldron. Affirming that external authority is unreliable and consistently fluctuating, Waldron alleges that JR is a façade used by the masses to fool themselves into believing that culture is legally self-binding.
Defending judicial activism, Dworkin maintains that the constitution leaves controversial issues to the judgment of the court. “Designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make,” the court functions as an authoritarian, interpreting the language of the constitution in legal issues. Essentially, Dworkin links the authority of the court to their opportunity to construct social policy while interpreting the Constitution. While maintaining fidelity to the historic text and recognizing outdated conceptions, the judiciary have the power to change what the Constitution enacts, forging an innovative conception of an established law. In comparing and contrasting judicial activism and restraint, Dworkin communicates the importance of consistent functionality and activity on behalf of the courts. While accepting the directions of the so-called vague constitutional provisions, the courts should work out principles of legality, equality, and revise these principles from time to time. Although the judicial activists who simply create social policy may not necessarily consider the future, the activists successfully interprets and applies the interests that the founders have expressed in the constitution, and ultimately frames and answers questions of political morality. This activist view passionately supports the use of JR in ascertaining the constitutionality of a particular situation.
On the other hand, Waldron espouses a theory of legislative supremacy, that is, a theory which claims that courts ought not to have the power to review decisions made by democratically elected legislatures and occasionally substitute their judgment of what ought to be done. Waldron argues against the claim that judges are better at morality than legislatures, which, in his view, is an important strand in any justification of the place of judges as the final authority when it comes to the great questions of constitutional law – the interpretation of the moral standards entrenched in bills of rights. He suggests that legislatures should have final authority in moral matters, since legislatures are better at moral reasoning than judges
At several points, Waldron poses the issues in an either/or form. Either judges or the legislature are better at moral reasoning, from which it follows that the legislature should have a monopoly on constitutional interpretation. At other times, he indicates that all is well so long as legislatures have the final say, which means that judges may have a legitimate though subordinate role. It seems Waldron is prepared to countenance the legitimacy of ‘weak judicial review’ where judges may not invalidate a statute which they think fails to comply with that country’s statutory commitment to human rights; instead they can issue a declaration of incompatibility in the government’s and the legislature’s court.
In reality, nevertheless, there are legal orders where weak JR usually puts judges under an interpretative obligation to try to render statutes compliant with rights even when the statutes seem not to comply, for instance section 3 of the UK’s Human Rights Act (HRA) 1998. Indeed, it would be very odd to have in place an independent judiciary, with a general authority to interpret the law, and a statutory bill of rights that commits all the institutions of state to governing in accordance with such rights, and for judges to suppose that they were not under such an obligation, even if it were not formally stated. When judges attribute a meaning to a statute in accordance with this obligation, the legislature has the option of responding with a statute that makes explicit the intention of the judges who declined to attribute to the statute. If the legislature does not do so, because of the political culture of the society, again it is in fact a strong JR, if not in form.
Waldron objects to the system of JR of legislation because presumably it displays an attitude of disrespect toward citizens in the sense that it holds them ineligible to decide for themselves, via the ordinary legislative route, matters of utmost importance as the scope of fundamental rights. The system of JR of legislation does that by according to the views of a handful of judges ‘superior voting weight’ to the extent that it enables them to override or set aside settlements reached among the citizens and their representatives on the grounds that the judges believe the settlement is wrong. Waldron emphasizes that people ought to govern themselves with regard to contested questions of justice.
In Waldron’s notion, a system of JR of legislation ‘where the court has the final say on a certain political issue and may overturn a contrary legislative decision on the grounds that it has made a mistake’ is a loss to democracy. It is a loss to democracy because it removes certain matters from the ordinary political process, where the view of each citizen presumably counts the same as everybody else’s, and assigns them to a small group of judges, whose decision may override a decision supported by millions. Therefore, Waldron concluded that the move of limiting the powers of parliament and enhancing the powers of judiciary will make UK less democracy.
It could be argued that, although the inclusion of social and economic rights in the new BRF fulfils the demand of the British public in relation to their rights to healthcare, in fact it is not matched by the legal reality. Such inclusion will increase the court’s power and strengthen the JR and entrenchment in a way which is not square with the tradition of parliamentary democracy in the UK. Further, this will raise the questions of democratic legitimacy and institutional competence which may evoke another interesting debate between the supporters of Dworkin and Waldron.
In conclusion, I would agree that the Commission is right in refusing the JR and entrenchment because they are not in accordance with British tradition. As abovementioned, the arguments against the proposal seem more convincing than the arguments in favour of the proposal in relation to theories propounded by Dworkin and Waldron, in particular. It is believed that drawing up a BRF would be a complex exercise which has an unknown impact on the country; but inevitably, the time-honoured parliament supremacy will be challenged. Considering that the HRA 1998 has only been enacted for less than a decade, perhaps it would be a better notion to modify the HRA 1998 if necessary instead of challenging the British tradition whose consequences are still unknown.
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