Hans Kelsen: His theories have led to a conflict between the human rights establishment and the democratic nation state (Credit: Kern, Fritz)
A telephone call brought my recent visit to Los Angeles to a sudden end. I was to return to London by the next flight. The simmering crisis in the UK Commission on a Bill of Rights over the issue of rule by judges versus democracy had come to the boil. It was time to go ahead with the contingency plans discussed for months with senior political allies. I would announce my resignation in the Sunday Times late on Saturday night, March 10. An interview on national television would follow the next day.
Despite its grandiose title, few in Britain and even fewer in other countries will even have heard of the commission. But it is significant for the internal politics of the coalition government and raises fundamental issues about democratic governance throughout the world.
The commission was formally established in March 2011 with a mandate to report by December 2012. After a great deal of wrangling within the coalition government and various vetoes of nominees, four members were appointed by the Prime Minister, David Cameron, and another four by his Liberal Democrat deputy, Nick Clegg. The commission was to recommend whether there should be a British Bill of Rights, as the Conservatives had promised in their election manifesto. It was also to advise on reform of the European Court of Human Rights in Strasbourg to whose rulings the UK has been obliged to adhere under the terms of the Human Rights Act (HRA) passed in 1998 by a Labour government with the active input of the Liberal Democrats.
All four of the Liberal Democrat appointees and all but one of the Conservative choices were senior lawyers. As a political scientist, I was the odd man out. The announcement of the commission's creation was held back for several days because the government found it hard to recruit a chair. After at least one person turned down the offer, the position went to the recently retired head official of the Department for Work and Pensions, Sir Leigh Lewis.
From the start, the auguries were poor. Though there had been a considerable overlap of opinion between Labour and the Conservatives in Parliament, the Liberal Democrats (with notable exceptions) were determined defenders of the post-1998 legal status quo. Clegg's selection of appointees all but guaranteed deadlock. They included Lord Lester of Herne Hill QC, the most inveterate of human rights activists. Lester wrote in December 2011 in The Times characterising the HRA, in whose passage he had played a leading role, as a work of genius. It was the capstone of his career. In 2009, he lectured in terms of admiration and awe about the European Court of Human Rights as "a beacon of hope for the 800 million peoples of Europe". Its staff were "Platonic guardians of the acquis".
In order to protect the HRA and the Strasbourg court, he set out to divert the commission from the matter of greatest concern to the Conservatives — the sovereignty of the UK legislature. In this project, he enjoyed the backing of the chair and secretariat (civil servants of the Ministry of Justice, a department with longstanding connections with the main human rights lobbies). One of Lester's key supporters on the commission wrote to the members advocating "headbanging" and a "reasonable exercise of brutal authority" by the chair to keep everyone in line. Thankfully, the chair did not take this advice literally. Instead, he gained his way at key points from July 2011 onwards by repeatedly threatening to resign unless the Conservative appointees bent to the Liberal Democrat line.
The first exercise in headbanging was to push through the commission a supposedly neutral paper drafted by Lester to be published as part of the commission's public consultation. Not only were none of the consultation questions to mention the UK's relationship with the European Court of Human Rights but we were to accept the bald statement that the HRA had left parliamentary sovereignty "unaffected". Since this was the very matter we had been asked to investigate, acceptance of this verdict at the outset made the work of the commission fairly pointless. When I expressed this view, Sir Leigh adjourned the meeting for a conversation with me. In a basement cafeteria at the House of Lords he told me that I would be considered a "maverick" and would lose all influence on the commission unless I accepted the Lester paper.
Matters were only to get worse. My year-long experiences on this dysfunctional commission together with some other recent activities have provided a direct view of some problems of British government about which I have taught for much of my academic career. In summary, the reality is a caricature of much academic writing about the working of central government in the UK.
Consider, for instance, the behaviour of some senior civil servants. The techniques whereby the legendary Sir Humphrey Appleby overcame his political master on the TV series Yes, Minister were part of my scholarly education. I had often read about the dodges used by chairmen to get their way — control of the agenda, waiting until ten minutes before lunch to introduce the most important items and so forth. What came as a surprise was the sheer aggression with which the techniques may be deployed and with what powerful effect. At one stage, I was told in no uncertain terms that it is civil service practice that minutes of meetings may "bear no relation to" the actual proceedings they purport to record. I had no right to ask for items to be placed on the agenda except under the brief slot for "Any Other Business", and the chair's terms of reference whereby I could be denied that right were not available to me.
There is an accumulation of public evidence about the style in which some senior mandarins express themselves nowadays. In his final days as Cabinet Secretary, Sir Gus (now Lord) O'Donnell wrote to the chair of the Public Accounts Committee of the House of Commons, the Labour MP and former minister Margaret Hodge, to protest against her public questioning of civil servants. "There is now a serious issue," he wrote to her, "about the way you are perceived by the wider civil service." He warned that hearings conducted by MPs should not be a "theatrical exercise in public humiliation". This followed an earlier incident where O'Donnell protested in strong terms to the Prime Minister about a reported briefing by a Conservative political adviser in which he characterised the chair of the Electoral Commission (and the holder of other positions) as a "quango queen". O'Donnell's successor apparently used divide-and-rule techniques to secure the exits from No 10 of two of David Cameron's senior political advisers. Michael Gove is reported to have met civil service resistance to his reforms at the Department for Education.
A related reality is the powerful link between ministries and pressure groups. Here too this was something about which I had read and given tutorials to undergraduates. Once again, it was the sheer strength and near exclusivity of these connections that came as a surprise. The Ministry of Justice, which sponsors the Bill of Rights commission, is a case in point.
The coming of coalition government has strengthened the influence of the civil service and has acted to the advantage of the Liberal Democrats, with whom the civil service generally has greater sympathy. On the ground that policy advice needs to go both to Cameron and Clegg, civil servants rather than political appointees of the Prime Minister head his policy unit. This arrangement effectively restricts input from Conservative Party political advisers.
Liberal Democrat strength is particularly pronounced in the area of constitutional affairs. It is not wholly fanciful to compare Liberal Democrat coalition strategy with that of the Communists who participated in coalitions in Central Europe immediately after the Second World War. There is, of course, no implied comparison of objectives. In the division of departmental responsibilities, Communists characteristically went out of their way to claim the ministry of the interior. This gave control over the police and provided a means to extend their political grip. In the case of the Liberal Democrats in the coalition, a key aim is to transform the constitution in a manner that will assure them a permanent blocking minority role in government. Hence the key Liberal Democrat demand for a referendum on changing the electoral system. Hence the demand for election of members of the House of Lords by a system of proportional representation. Whereas the Conservatives have been primarily concerned with tackling substantive problems such as the economy, Clegg has had his eye on changing the system of government to his party's advantage.
During the coalition negotiations after the inconclusive general election of May 2010, Clegg obtained his key objective — the position of supremo over constitutional affairs. This included the field of human rights. Thus, day-to-day responsibility for the Commission on a Bill of Rights went to Clegg and to the Ministry of Justice. Staff previously in the constitution unit at the Ministry of Justice were reallocated to the Cabinet Office, where they now work under Clegg. Moreover, Ken Clarke, the Justice Secretary, is the Conservative cabinet member closest to the Liberal Democrats.
The alliance on constitutional affairs within Whitehall between Team Clegg and the key parts of the civil service has been strengthened by two outside realities. The Liberal Democrats and the coalitionist segment of the Labour Party have ample financial resources for specialist research. By contrast, Conservatives and supporters of the Westminster model in other parties have failed to mobilise. Defending the existing constitution is no less important than attacking proposals for further loss of sovereignty. I hope that proponents of the Westminster model wake up to the dangers and set about an organised intellectual and political defence.
The arguments about human rights which led to the creation of the commission are only to a small extent about the rights themselves. The key issue is about how they are to be implemented. When the House of Commons voted on February 10, 2011, by the overwhelming margin of 234 to 22 against allowing prisoners to vote, much of the debate centred on the matter of jurisdiction. In the view of virtually all British MPs, it was for the House of Commons rather than the European Court of Human Rights in Strasbourg to determine how elections in the UK should be run. I have considerable sympathy for the arguments of scholars such as Professor Jeremy Waldron, the incumbent of the chair at All Souls, Oxford once held by Isaiah Berlin, that prisoners (at least some of them) should be permitted to vote. There are both prudential and moral arguments for this position. However, I believe it should be for our elected representatives rather than a court to decide. Thus, there is a serious case for amending the HRA, which ceded jurisdiction over this and potentially a host of other matters to an international court against whose decisions there is no recourse.
The stakes directly involved in the matter of votes for prisoners are relatively small. The prison population is insignificant compared with that in the US, for example. Moreover, the Strasbourg court appears willing to give the UK relatively wide discretion provided there is no automatic blanket ban on voting by all prisoners and provided judges are given some discretion over granting the right to vote to particular prisoners. The reason why the issue became so hotly debated in 2011 was that it brought to the surface a fundamental question about the county's entire constitutional architecture. This question had been obscured when the HRA was passed.
Under the terms of the Act, judges are given the authority to declare that a subsequent piece of legislation is incompatible with the European Convention on Human Rights, which the HRA incorporated into British law. However, such a declaration of incompatibility does not automatically invalidate the law which is judged to be incompatible. In formal terms, it is for Parliament to decide whether or not to amend the offending law to make it consistent with the European Convention as interpreted by the judges. The HRA preserved the formality of parliamentary sovereignty.
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.
Hans Kelsen's Jewish parents arrived in Vienna in 1884, when he was three years old. He attended one of the city's most demanding schools, the Akademisches Gymnasium, converted in 1905 to Roman Catholicism (mainly for "reasons of expediency"), took his doctorate in law at the University of Vienna in 1906 and became a full professor there in 1919. A Social Democrat, he drafted a key part of the country's new constitution and was appointed in 1920 to the constitutional court of the rump Austrian state which emerged from the First World War. With the ascent of the Nazis to power in Germany, he moved first to Geneva and, in 1940, to the US.
Kelsen was the author of one of the 20th century's major texts of legal philosophy, A Pure Theory of Law. The essence of his theory was that an obligation to obey the law does not stem from national sovereignty but from a fundamental norm. In practical terms, this led after the First World War to his advocacy of an Austrian constitutional court as part of the Austrian constitution and, after the Second World War, to support for the idea of an international court with compulsory jurisdiction as a key part of the framework of the United Nations.
In 1919, a 22-year-old graduate student arrived in Vienna for doctoral studies under Kelsen. Hersch Lauterpacht was a middle-class Jew from a small town near Lviv. Until the First World War, this had been part of Austro-Hungary. He became the founding president of the World Federation of Jewish Students (Einstein in Berlin was the honorary president) and married a fellow student who had come to Austria from Palestine. Lauterpacht's dissertation combined his interests in jurisprudence and Zionism with an argument about mandates granted by the League of Nations which implied that the mandate given to Britain to govern Palestine did not give Britain sovereignty. Rather, this rested, argued Lauterpacht, with the League of Nations. In 1923, Lauterpacht moved first to the London School of Economics and then to Cambridge, rapidly winning academic laurels as an international lawyer. In 1933, he completed his major work, entitled The Function of Law in the International Community.
Despite the failure of the League of Nations to prevent Nazi aggression, the Second World War and the murder of his family in the Holocaust, Lauterpacht remained attached to notions of an international legal order. Before his early death in 1960, he served as a judge on the International Court at The Hague. Lauterpacht was devoted to the view that fundamental human rights were superior to the laws of individual states and were protected by international criminal sanctions even if the violations had been committed in accordance with existing national laws. He advised the British prosecutors at Nuremberg to this effect. Together with another Jewish lawyer from the Lviv area, Raphael Lemkin, Lauterpacht had a major role in the passage by the United Nations General Assembly of the Universal Declaration of Human Rights in 1948. Lauterpacht's publication in 1945, An International Bill of Rights, also had a formative influence on the European Convention of Human Rights drawn up in 1949 and ratified in 1953.
Lauterpacht's public philosophy was based on the conviction that individuals have rights which do not stem from nation states. He was an internationalist who had a lifelong mistrust of state sovereignty which, to him, reflected the aggression and injustices committed by nation states and the disasters of the two world wars.
Since the Second World War, the work of Kelsen, Lauterpacht and others has led to an increasingly powerful and international human rights movement supported by well-funded pressure groups and international bureaucracies. But success has brought to light some serious weaknesses, though true believers tend to be unprepared to acknowledge them.
First, there is the failure of the postwar human rights declarations and mechanisms to bring justice to the mass of Holocaust perpetrators and to their victims. Though one of the most common claims for the virtue of the European Convention of Human Rights and the Strasbourg court is that they came into existence as a reaction against the Holocaust, the sad reality is that their creation came at the very time when the Allies were abandoning war crimes trials, helping Nazis to escape from Europe and recruiting some of them for anti-Soviet intelligence activities. It is hard to make out how, if at all, the Council of Europe, its human rights convention and its court acted in the interests of the victims of the Holocaust. In their search for new and ambitious structures of international law, Lauterpacht and his colleagues seem to have done relatively little to ensure that Nazi mass-murderers were brought to trial.
Second, some of the new international human rights bodies have not covered themselves in glory. The UN Human Rights Council has been highly selective in its choice of targets for investigation and condemnation. Its anti-Israel obsession undermines its legitimacy, which is not to deny that there are legitimate concerns about some of Israel's human rights practices. A few years ago, the UNHRC's predecessor body was chaired by the representative of Colonel Gaddafi's regime; a number of the member countries have distinctly dubious human rights records. When human rights pressure groups and other organisations direct their attention in a disproportionate manner against particular targets and countries, human rights may all too easily become a form of propaganda and political warfare, known as "lawfare".
Third, the general terms in which human rights inevitably are set out have tended to cause problems when their meaning has been expanded by court decisions well beyond those originally intended. So-called "rights contagion", according to its critics, has over-stretched and greatly trivialised human rights.
Fourth, international organisations such as the United Nations and its agencies, the Council of Europe, the European Court of Human Rights and the International Criminal Court have all too often proved inefficient, unaccountable and overly concerned with their own organisational expansion.
Fifth, the adoption of broadly-worded human rights bills leads to a greatly increased scope for decision-making by judges. The right to family life, for example, is subject to great differences of interpretation. It tends to be assumed by professional advocates of human rights systems that judges are wiser, more moderate and more capable of safeguarding the interests of members of unpopular minorities than legislatures, which are ignorant, prejudiced and occasionally subject to capture by extremists. I was taken aback to hear repeatedly the claim that it was the "democratically-elected" Reichstag which introduced Nazi laws in Germany in the 1930s. The influential work of Ronald Dworkin also denigrates majoritarian democracy, as do statements by Lord Justice Laws.
Not only are judges fallible, but any system which gives them wide-ranging powers over what are often political matters raises the question of how they are appointed and to whom they are accountable. This issue arises when it comes to appointments to national courts but all the more so for international ones.
These points are not made to denigrate judges or to undermine the need for judicial independence. But a political system which tends to turn political questions into legal ones places too much power in the hands of legal elites, while the high cost of legal actions is to the advantage of those with deep pockets.
Sixth, the ideal of compulsory jurisdiction by judges of international courts over contentious political matters produces special difficulties. Certainly, international arbitration may be a practical and peaceful way to resolve disputes between countries. But international courts which claim jurisdiction over individual countries do not coexist comfortably with notions of national sovereignty. Some would wish good riddance to national sovereignty. At the time Kelsen and Lauterpacht published their major writings some of the most powerful nation states were undemocratic.
The spread of democracy has led to a dilemma which those writers did not have to face. The problem is that it is only nation states that are capable of being democratic in any meaningful sense of the term. International elections are a pale shadow of national ones, as the experience of elections to the European Parliament demonstrates. International institutions are remote and unaccountable. The issue of checks and balances between judges and legislators is harder to resolve when the judges in question are drawn from a large number of different countries.
So far, there have been avid attempts by some senior judges in London and Strasbourg and by political advisers to obfuscate the underlying issue of ultimate authority over human rights decisions. There is talk of a "dialogue model" of relationships between the UK's Supreme Court and the European Court of Human Rights. Complex terms such as "subsidiarity" and "margin of appreciation" are bandied about. The issue of which institution is to have the final say is carefully avoided. Clearly, internationalist reformers such as Lord Lester hope that power will move away from the House of Commons, unnoticed and unopposed.
The refusal by these internationalist reformers to consider the problems posed by the HRA for our democracy in the UK is unfortunate, since it tends to lead to attack on the very idea of human rights. A structure which promotes human rights without undermining British democracy will assure these rights far more securely. Though much work remains to be done on the details, the fundamental features of any reform of the HRA should be clear. The rights set out in the European Convention on Human Rights should remain unaffected (though there is scope for slightly different wording and for a limited number of additional rights). Judicial independence must be maintained. This applies both to judges of the UK Supreme Court and those in Strasbourg. The UK legislature should not be able to overrule judicial interpretations of the European Convention on a casual basis. Override by the legislature should be reserved for exceptional occasions involving matters of major public policy. However, it is the essence of democracy that the freely elected House of Commons should have the final say.
The pursuit of human rights should not and need not lead to the complete replacement of democracy by judicial rule. The intensity of ideological commitment by leading human rights advocates to the HRA and to the unchecked powers which it has afforded to the Strasbourg court has so far prevented any serious consideration of the underlying constitutional problems thrown up by the Act. In the US, the influence of the Supreme Court has led to a continuing debate about the roles of judges and legislatures. So far, there has not been nearly enough debate about the matter in Britain.
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