6 April 2009

Parliament and the Bill of Rights - a blasé attitude?

Like most, I'm someone who believes in the importance of human rights. However, as will be aware from previous postings, I also believe that many rights issues - particularly questions about whether a purported breaches of a rights are "demonstrably justified in a free and democratic society" - are complex and they benefit from ventilation in the parliamentary arena. I'm sceptical of those who rush to the courts, seeking the judiciary intervene to address some purported rights violation when the issue is something on which reasonable people within free and democratic societies can differ on. In such cases, I prefer the deliberation about the definition of rights and permissible limits to be undertaken by our elected representatives. The value judgements involved in such deliberations benefit from a democratic mandate, the diversity that representatives bodies bring to the table, and the public engagement that can be brought to an issue. It follows, then, that in such cases, I think our courts should apply a strong degree of deference - a generous margin of appreciation - to the outcome of democratic deliberations on those rights issues. But. And a big but. Any deference in this area must be earned. Parliament must, I believe, genuinely engage with the rights at stake and the proportionality calculus set by section 5 of the Bill of Rights before the courts ought to exercise restraint. (As an aside, I think this is where the Attorney-General and CLO misfired on the EFA analysis. Judicial deference was automatically factored into the section 7 analysis, with the advisors noting that, on the policy issues involved, the courts were likely to accord a reasonable margin of appreciation to the judgements made. But I say that was premature. The report ought to have identified the need for Parliament to grapple with the isssues. If grappled with genuinely, then - and only then - would the courts accord deference to the product. An "orange" light. Not a "green" light!) Perfunctory analysis or unduly expedited process are examples of Parliament not taking rights seriously. And this is seemingly becoming more common. My colleague, Claudia Geiringer, has an excellent post on last week's incident - which I thoroughly commend: > 15LQ: "Urgency, Parliament and the Bill of Rights – time for a cup of tea, guys?" I fear that if the present trend continues and Parliament continues to treat rights with summary disdain, institutional comity will come under pressure. The courts will feel obliged to exercise greater vigilance about rights. More aggressive interpretations will be adopted. Less deference will be accorded to the product of the parliamentary process. In short, disparagement of rights and the adoption of a blasé attitude to rights will, I think, come and bite our elected representatives. At the end of the day, though, the destiny of the human rights endeavour in the hands of Parliament...

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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