The Futility of the Human Rights Act - A Long Footnote
![handle is hein.journals/braclj37 and id is 41 raw text is: Bracton Law Journal 2005
'The Futility of the Human Rights Act - A Long Footnote'
Professor Keith Ewing
Professor of Public Law, Kings College London
This article builds upon Professor Ewing Bracton lecture delivered at the University of Exeter on 2
June 2004. An extended version of the lecture, entitled, 'The Futility of the Human Rights Act' is
published in [2004] Public Law 829
Keynes is said to have famously quipped that 'When the facts change, I change my mind'. This would appear
to be a particularly apposite remark for those democrats sceptical about the role of the courts in general and
the Human Rights Act in particular. Those opposed to a Bill of Rights had different but overlapping reasons.
There were those opposed on practical grounds, concerned about outcomes. This opposition was based on
a distrust of the judges. This distrust was built upon empirical evidence and came out of the experience of
frustration about judicial intervention in the social sphere over many years.
There were others who were opposed for reasons of principle, based on democratic values. These values
were rooted in the idea that in a democracy, it is the people through their elected representatives that should
have the final say on political questions (broadly defined).
There are - of course - those who would object to the Human Rights Act on both of these grounds. But for
those accepting the first of these arguments or falling into the first of these camps, the decision of the House
of Lords in A v Home Secretary [2004] UKHL is thought by supporters of judicial review to be particularly
challenging. It is said that the decision shows that the courts can after all be trusted in the political arena to
get it right to stop the abuse of power. On the other hand, for those accepting the second of these arguments
or falling into the latter camp nothing changes. Although they too are likely to have found the legislation
which the Lords challenged in A to be nauseous, they are compelled by the principle of their position to accept
the legitimacy of all legislation. The process by which it was made is all-important. But even they must be
bewildered by the fact that it was the unelected House of Lords (and not its Appellate Committee in this case)
that moderated other extreme measures proposed by the government with the support of the House of
Commons in the Prevention of Terrorism Bill 2005. But does the A case provide such a compelling case to
disarm the sceptics, or can it be contended that the arguments advanced to highlight the futility of the Human
Rights Act remain very robust in the light of recent developments?
The Changing Facts
How have the facts changed? We can point to three relevant issues which are relevant for the arguments about
the role of the judges as 'guardians of liberty'. If the world has not exactly turned upside down, it has certainly
changed in a number of crucial respects relevant to the human rights debate. For example:
We no longer live in an ideologically polarised society. Social democracy is in retreat, and its great
institutions are in temporary decline. There is no prospect of great waves of redistribution, or of progressive
policies by national or local government. Globalisation reaches everywhere and tames everything (except
powerful nation states and rapacious business practices).
We no longer live in an era when the juristocracy is a relatively conservative bloc, especially at its highest
levels. It may well be conservative in fact and it may be just as conservative as its forbears, but it has been
overtaken in the race from the centre. The present generation is perhaps the first of whom it can be said that
the juristocracy is as liberal as the political class.
Modem instruments for the protection of human rights do not necessarily adopt the anti democratic
extremism of the US Bill of Rights, designed as a restraint on big government. Some do. But we now know
that there are possible alternatives, as reflected by developments in Canada, New Zealand and the United
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The Futility of the Human Rights Act - A Long Footnote
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