In practice, Parliament has little choice in the matter as things now stand but to comply with the UK Supreme Court. This is because the HRA also gave final jurisdiction to the Strasbourg court over cases involving the European Convention on Human Rights. If the Supreme Court declares an Act of Parliament incompatible with the Convention and if Parliament refuses to introduce legislation to remove the incompatibility, any person can then bring a case against the UK before the Strasbourg court in the almost sure knowledge that Strasbourg will decide against the UK. As long as there is no ultimate recourse against decisions in Strasbourg, Parliament is (in Anthony Bradley's apt words) "mortally wounded" by the HRA. Parliament has the last say, but only if it submits to the views of the judges.
For years before the clash between the House of Commons and the Strasbourg judges over the prisoner franchise, one of the UK's most influential constitutional commentators, Vernon Bogdanor, warned that constitutional crisis was the likely consequence of the HRA. This would occur once the House of Commons refused to change the law in response to an adverse judicial ruling. A constitutional reformer and critic of the doctrine of parliamentary sovereignty, Bogdanor openly favoured giving judges the final say over Parliament. Other reformers such as Lord Lester were less forthright but favoured the same thing.
Before my recent immersion in the world of the human rights establishment, I had not fully appreciated the ideological character of some of its core beliefs. Names which mean little to members of the public, such as Hans Kelsen, Raphael Lemkin, Hersch Lauterpacht and Ronald Dworkin are regarded with the same quasi-theological awe as that accorded by true believers in Communism to Karl Marx or by disciples of psychoanalysis to Sigmund Freud. One of the Clegg appointees to the Commission on a Bill of Rights, Philippe Sands QC, is writing a biography of Lauterpacht.
The ideological intensity with which some of its adherents pursue their goals means that they tend to have closed minds and to be incapable of absorbing and discussing problems relating to their belief system. In particular, the challenge of those beliefs to parliamentary democracy is lost on some of them. This is a great pity because the cause of human rights is honourable and necessary. Provided that there are checks and balances between the judicial and legislative branches of government, the constitutional problems arising from human rights systems are capable of resolution.
At risk of oversimplification, an understanding of the modern human rights movement as a secular religion requires a look at its roots in early 19th-century Vienna and more generally at the emergence of Jews from their earlier confines. It may be no coincidence that so many of the founders of major modern moral doctrines and intellectual worldviews have come from Jewish backgrounds. Usually, they or their parents have abandoned their religious traditions and have searched for some new, equally embracing way of seeing the world.
It is easy to forget how rapidly Vienna became a magnet in the second half of the 19th century for Jewish families from the hinterlands of the Austro-Hungarian empire. Between 1860 and 1900, the Jewish population of the city grew from 6,000 to 147,000. Rapid social change produced a rich intellectual and cultural ferment. Big theories and great passions of all sorts were the result. Old certainties were replaced by the search for new keys to human existence and morality.
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