3600585 (1)

Review: Law's British Empire
Reviewed Work(s): Values for a Godless Age: The Story of the United Kingdom's New Bill
of Rights by Francesca Klug
Review by: Jonathan Morgan
Source: Oxford Journal of Legal Studies, Vol. 22, No. 4 (Winter, 2002), pp. 729-746
Published by: Oxford University Press
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Oxford Journal of Legal Studies, Vol. 22, No. 4 (2002), pp. 729-746
Law 's British Empiref

JONATHAN MORGAN*
1. Human Rights
Human rights are the Zeitgeist of our day. The protection of rights deman
immense political attention, both domestic and international. Even wars are n
fought, perhaps surprisingly, in their name: NATO forces bombed Serbia i
1999 to protect the rights of Kosovo's Muslims. The European Union has
solemnly proclaimed a Charter of Fundamental Rights, at Nice in December
2000. Rights talk is all-pervasive, and courts, not politicians, are to be entrusted
with watching over those rights, enshrined in law.
Not that this vibrant idea is at all new. 23 centuries ago, Aristotle recommended
the rule of law (the product of reason), not the rule of men (governed by
passions). Bracton famously wrote that the King was subject to the law (as well
as to God). King Charles I was indicted and executed for attempting to rule
according to his will, whereas he was properly 'trusted with a limited power to
govern by and according to the laws of the land'. The American Declaration of
Independence in 1776 stated it a 'self-evident truth' that all men 'are endowed
by their creator with certain inalienable rights', and that it is 'to secure those
rights [that] governments are instituted among men'. A.V. Dicey, Victorian
embodiment of the British constitution, wrote that the Rule of Law, controlling
the dangers of unlimited discretionary power, was one of the twin pillars of our
constitutional law.
The idea, or ideal, of subjecting political rulers to higher-level, immutable
principles of law, so as to safeguard the rights of the governed, conflicts with
Dicey's other central principle, that the Queen in Parliament is sovereign:
unlimited, illimitable and omnipotent. This, for Dicey, trumped even the Rule
of Law: Parliamentary sovereignty was the 'keystone' of our constitution.1 That
view is now deeply out of fashion. To advocate leaving it to Parliament, or, in
political reality, the governing party of the day, to protect the liberties of the
t A review of Values for a Godless Age-The Story of the United Kingdom's New Bill of Rights, by Francesca Klug
(with Foreword by Helena Kennedy QC) (Penguin, 2000). When no other work is cited in the notes below, the
reference relates to this book.
* Corpus Christi College, Cambridge CB2 1RH. I am indebted to Jeremy Horder, David Ibbetson, Chris
Brooke and Jane Stapleton. It is more than usually important to stress that they should not be taken to agree with
any of the views herein, nor with my expression of them.
1 E.C.S. Wade (ed.), Introduction to the Study of the Law of the Constitution (E.C.S., 10th edn, 1960) at 70.
@ 2002 Oxford University Press
730 Oxford Journal of Legal Studies VOL. 22
British people seems risible, if not bordering on lunatic, in 2002.
the political process has reached grand proportions, in this age o
Apathy and voter alienation declare themselves with unmistak
turnout figures for the general election of June 2001.2 Such a cl
for arguments even as weak as Lord Denning's faute de mieux
need have no fear. The judges of England have always in th
will-be vigilant in guarding our freedoms. Someone must be
the judges'.3
Of course, not everybody does trust the judges. The English judiciary have
long been criticized for being drawn from too narrow and homogenous a section
of society, leading to concern that they embody and enforce the values of that
class as a result.4 One Labour local councillor pithily described Her Majesty's
Judges as 'class ridden vandals in ermine'.5 Such criticisms are obviously worrying
if we are to have judges questioning the legislative decisions of the elected
Parliament. Even if the appointments procedure were open and the bench more
representative of society, however, that would still not meet the concern, because
the judiciary will always be perceived as hopelessly undemocratic when compared
with Parliament. This is inevitable, unless we are to elect judges-and abolish
their tenure. But impregnable judicial tenure is regarded as the essential guarantee
of judicial independence. Pointing to flaws in the democratic credentials of the
present parliamentary system does not provide support for the even less demo-
cratic arrangement of transferring power to the judiciary.6 If it is broke, don't
fix something else that ain't.
Human rights theorists must defend (and accept) this conflict with democracy.
Courts enforce the limits which fundamental principles of human rights place
upon even democratically elected bodies. This would amount to a reversal
of the Diceyan position, with the Rule of Law prevailing over Parliament's
omnipotence. The law that is now to rule, however, is constituted by a concept
of positive human rights alien to Dicey's concentration upon liberties and
freedoms, whereby we are simply free to do anything which the law does not
forbid. It is the reconciliation of higher-order human rights law with a system
of government based on democracy which is the central and essential problem
for advocates of bills of rights, even in an age when trust in democratically-
elected institutions is at a low ebb.
2 Average turnout of those eligible to vote was just under 60%-the lowest proportion since the 1918 pol
the aftermath of the First World War.
3 Lord Denning MR, What Next in the Law (Butterworths, 1982) at 330. This was Lord Denning's answer to
Juvenal's quandary Sed quis custodiet ipsos custodes?
4 The classic study is J.A.G. Griffith's, The Politics of the Judiciary (5th edn, 1997). Jeffery Hackney in 'The
Politics of the Chancery' concluded that those politics were 'right-of-centre-upper-middle-class' [1981] CLP 113
at 116.
5 Quoted in L. Bridges et al, Legality and Local Politics (1987) at 93.

6 M. Zander, A Bill of Rights? (4th edn, 1997) at 79-83.
WINTER 2002 Law's British Empire 731
2. Values for a Godless Age?

The Human Rights Act 1998 is a true revolution in B
It has received a warm welcome from many quarters, mo
practising and academic. The media have not been so
This is despite the best efforts of the first New Lab
relations team, and numerous ministerial speeches an
Act's virtues. Even the title of the White Paper which le
and soothing, for as Lord Wilberforce said in the sec
Human Rights Bill, "'Bringing home the rights" is a l
think of the "Ashes", or perhaps the bacon'.8
Of all the praise, none has been more fulsome than t
her book Values for a Godless Age. This, perhaps, is
when the author is styled as 'one of the driving forces b
she won the 1998 Times/JUSTICE award for an outs
civil justice.' Her aims are stated as being: first, to in
section of the public, second (and related) to spread h
rights informing a new progressive politics' and, third,
message and defend it from those who would caricatu
egotistic and individualistic'.1o The evangelical funct
approachable, journalistic prose style (and this is pre
monograph ever to have been launched in conversatio
on 'Start The Week'). All the more unfortunate, then
Klug puts forward in favour of the Human Rights Act u
It has been argued that the central, political object
morality on rights is the extreme individualism which m
critique of the 'rights culture' in the USA, Mary Ann
rhetoric of rights is less about human dignity and free

unending desires. Its legitimation of individual and group
to the great purposes set out in the Preamble [to the US
Even rights enthusiasts recognize, though they are

dividualistic focus of the rights society. McLachlin
Charter of Rights and Freedoms as the full and inev
preoccupation with the individual which can be trac
7 Examples (from many): 'Don't Leave Justice to the Judges' (N. Cohen, N
'Rights Act will put British Way of Life on Trial' (Observer, 13 February, 200
Telegraph, 7 August, 2000). A notable (and conscious) exception to the academ
K. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights (2001).
8 Hansard HL (3 November 1997) col. 1279. Cf. 'Rights Brought Home: t
(1997).
9 Moreover, she was awarded the OBE in the 2002 New Year's Honours,
Human Rights'.
10 At 13-14.
'1 M. Glendon, Rights Talk (1991) at 171. See also Sir John Laws, 'The Limitations of Human Rights' [19
PL 254 and his Hart Lecture, Beyond Rights (Oxford, 7 May, 2002).
Freud to 'late 20' Century narcissism'.12 Similarly, Ronald Dw
possible damage to a society's communitarian spirit would b
paying for ensuring protection of individual rights.'3 The empha
of the individual weakens the recognition of duties owed to othe
to the community generally. The threatened effect on societ
atomizing.
As stated, one of Klug's central objectives is to exonerate human rights from
this charge of exalting selfish individualism. The defence is strongly argued with
respect to the Universal Declaration of Human Rights (hereafter UDHR), which
contains the explicit statement: 'Everyone has duties to the community in which
alone the free and full development of his personality is possible'.'4 This duty
concept is identified as a central feature of the 'second wave' of human rights
documents (corresponding to the post-Second World War period), and is con-
trasted sharply with the American 'first wave' bill of rights, and its absolute
individual freedoms enforceable only against the state.'5 Where Klug's arguments
have much less power is with regard to the European Convention on Human
Rights, from which the substance of the Human Rights Act derives.'6 She admits
that it contains no equivalent to Article 29, UDHR, and her arguments therefore
centre on the 'horizontal' enforcement of ECHR rights, and upon their qualified
nature. The former (if it exists'7) means that if one individual has a right (say
privacy: Art. 8, ECHR) there is a correlative duty on other individuals to respect
that right. So the Human Rights Act is said by Klug to extend the range of
duties we owe to other members of society. These 'new duties' are, however, no
more than a straightforward, Hohfeldian working-through of other individuals'
rights: such rights are not much use without corresponding duties to respect
them. Thus, horizontal effect does not allay the fears of those concerned by the
Act's individual-rights focus. Indeed, it may even be said to enhance those rights,
given that it supports the notion that an individual's claim can be asserted not
only against the State, but against all private individuals.
It is certainly true that ECHR rights are qualified by various manifestations
of the public interest,'" and in this sense their inherent individualism is tempered.
What Klug passes over though is that in Strasbourg jurisprudence, very heavy
emphasis is placed upon the individual's right as opposed to the public interest.
The Court has strictly interpreted the Convention requirement that restrictions
on rights be 'necessary in a democratic society': there must be a 'pressing social
need'. One of many examples here is the Strasbourg analysis of the English law
12 B. McLachlin, ch 2 in C. Gearty and A. Tomkins (eds), Understanding Human Rights (1996) at 35-36. The
author was then a puisne judge in the Canadian Supreme Court.
13 R. Dworkin, A Matter of Principle (1985) at 32.
14 Art. 29(1), UDHR. See Klug ch 4, esp. at 111-19.
15 At 127-32
16 At 124-27, 196-99
17 There is a lively academic debate as to the horizontal effect of the Human Rights Act. Leading contributions
are: M. Hunt [1998] PL 423, N. Bamforth [1999] CLJ 159 and (2001) 117 LQR 35, Buxton LJ (2000) 116 LQR
48, H.W.R. Wade (2000) 116 LQR 217. Klug does not join nor even cite the debate, notwithstanding her opinion
that without horizontal enforcement, 'the entire enterprise is ultimately doomed to failure', at 199.
18 See Arts. 2(2), 4(3), 5(1), 6(1), 8(2), 9(2), 10(2), 11(2), 18.
on contempt of court. In two high-profile cases, the
overruled the balance which the House of Lords had struck between the individual
contemnor's freedom of speech, and the public interest in the administration of
justice. In the Thalidomide case"9 the Court found a breach of Article 10, despite
the House of Lords' guiding philosophy that 'the courts must not impose any
limitations upon free speech or free discussion or free criticism beyond those
which are absolutely necessary'.20 F.A. Mann attacked the judgment on the basis
that 'it is probably no exaggeration to say that the gravest blow to the fabric of
English law that has ever occurred has been dealt by [the judges in Strasbourg
who] decided for the Sunday Times'.21 In the second case, the Court required
no less than an 'overriding requirement [ofJ public interest' before a journalist
could be compelled to disclose the source of a damaging corporate leak.22 It is
clear that Convention rights will prevail over all but the weightiest countervailing
public interests. The result then is that, given the way it is being interpreted,
the ECHR seems much closer in spirit to the individualistic US Bill of Rights
than to Article 29, UDHR.
Klug's primary thesis-reflected in the title to her book-is that the concept
of human rights has the potential to provide unifying, common values in a society
of pluralistic religious beliefs (including atheism). But it is far from clear that
the Human Rights Act can meet that need. The assertion is repeatedly made
that human rights are not, and do not purport to be, a substitute for political
ideology; rather, they provide 'a framework within which such debates can take
place'.23 The argument is that human rights are the apolitical, non-ideological
ground rules, and as such are uncontroversial, even uncontestable. This is
worrying. It brings to mind Chomsky and Herman's withering attack on the
operation of the mass media, and the way in which they perpetuate the system
of free-market capitalism, and suppress dissent, through a powerful (because
invisible) series of 'news filters'.24 These filters 'fix the premise of discourse and
interpretation, and the definition of what is newsworthy in the first place, and they
explain the basis and operation of what amounts to a propaganda campaign'.25 As
Chomsky and Herman wryly conclude, the US media:
permit-indeed, encourage-spirited debate, criticism and dissent, as long as these
remain faithfully within the system of presuppositions and principles that constitute
an el1ite consensus, a system so powerful as to be internalized largely without awareness.26
19 (1979) 2 EHRR 245.
20 A-G v Times Newspapers [1974] AC 273 at 302, per Lord Morris of Borth-y-Gest. And see 294 (Lord Reid)
and 322 (Lord Cross of Chelsea).
21 (1979) 95 LQR 348 at 349. These days, people tend to be less surprised when the Government loses a case
in Strasbourg.
22 Goodwin v UK (1996) 22 EHRR 123 at 145 (para 45). Cf. Xv Morgan-Grampian [1991] 1 AC 1: 'Disclosure
in the interests of justice is ... clearly of preponderating importance so as to override the policy underlying the
statutory protection of sources, and the test of necessity for disclosure is satisfied'. Per Lord Bridge of Harwich at
45, discussing Contempt of Court Act 1981, s 10.
23 At 200. Also at 28-33, 138, 147-50, 196-201.
24 E.S. Herman and N. Chomsky, Manufacturing Consent: The Political Economy of the Mass Media (1994) passim,
and esp. ch 1.
2s Ibid at 2. Emphasis added.
26 Ibid at 302. Emphasis added.
The point is that controlling the supposedly neutral term

practice means, to a large extent, controlling its outcome.
conditions' become internalized as the ground rules to whi
in the debate must subscribe, their controlling effect tend
unfelt, and so unchallenged. Imagine a person who does n
value-system represented by the ECHR; say for example
private property. It must be chilling for her to read that new,
'citizenship education' for schoolchildren will include 'the lega
and responsibilities underpinning society', including, of
Rights Act.27 The propaganda role is nakedly apparent.28
Furthermore, the portrayal of human rights as a non-contes
framework is surely undermined by Klug herself, by way
goal of expounding the utility of the rights concept to th
Progressive Politics (which seems to mean, in practice, subscri
thinking'29). She describes the search for a new political fram
the Left ... [when] many of the certainties of the old Left
She traces the Labour Party's conversion to a Bill of Rights to
general election defeat in 1987, after which 'the judges we
reputation as the only source of effective opposition to the [e
government'." She notes how race, disability, women's, chil
groups have all shifted their campaigning to the human right
to resist the conclusion that human rights, far from being no
a particular, radical, liberal social agenda.33 Conservative
have certainly not been slow in attacking the 'uncontesta
in the Human Rights Act, with one critic arguing mordant
represent nothing less than the 'triumph of the internatio
can 'bypass such tiresome notions as popular will and use t
causes for which there is no social consensus'.34 In light o
hard to see how Klug can argue that it is 'obvious' that 'ri
force for moral cohesion ... especially in a country of dive
the UK'35 without noting, for example, the massive a
27 At 174-75 (and references therein). For property, see ECHR, Protocol 1, Arti
28 'Give me a girl at an impressionable age, and she is mine for life' as Miss Jean B
the eponymous book (M. Spark, 1961, ch 1).
29 Ch 2 (passim) and 186-88.
30 At 193. See also 11-12, 147-48, 201-05.
3 At 158.
32 At 7.
33 It is pertinent to note that 'in terms of theory, gay liberation is largely an extension o
seeing the divisions of society-male/female, black/white, proletarian/bourgeois,
functional to the operation of capitalism, and that ending capitalism is functional to e
gays'. I. Adams, Political Ideology Today (1993) at 293.
34 M. Steyn, 'The Rise of the F.U. Movement' (Spectator, 4 March, 2000). See a
Court Allows New Left to Bypass the Voters' (Daily Express, 14 August, 2000).
35 At 197.
convulsions in the USA as a result of one controversial Su
Nor is it convincing to assert with Sir Sydney Kentr
which excite controversy in the USA are somehow u
For instance, one of the 'uncontroversial' examples c
rights of homosexuals'38-rapidly proved to be an eth
the Blair Government.39 In short, Klug's argument that
be, a non-contestable, value-neutral framework for socie
in the light of her alignment of human rights with the
the trenchant opposition from those of different politic
Moreover, Klug contradicts her own 'non-contestabi
way. She argues that there has been a 'third wave' o
since the end of the Cold War, and a central feature of this wave is the
'democratization of rights discourse', i.e. wide public involvement in the definition
of rights, and the drawing of boundaries between rights.40 The lines are said to
be 'porous' rather than 'permanently fixed'.41 There is said to be a 'debate
without end' where human rights are 'part law, part philosophy, part political
movement', and whose values 'owe almost as much to poetry and music as they
do to legal principles'.42 The penultimate paragraph of the book states that:
Any worldview or set of values which is presented as self-evident is ultimately doomed
to failure. The case for human rights will always need to be made and remade ...
These claims will forever be contested.43
This argument seems strikingly similar to those of many rights- and value-
sceptics. So, Jeremy Waldron has argued in this Journal that the very proliferation
of rights theories, and disagreement between the theorists who espouse them,
casts serious doubt on the possibility of putting forward any canonical list of
rights, such as would seem to be necessary in a legally-enforced charter.44 This
reflects the general position that values are contestable; conflicts over legal values
are disagreements over projects for practical action; and 'reason alone cannot
determine wholly what we ought to do'.45 Even if some basic values are conceded
to be self-evidently good, these will be given at such a high level of abstraction
as to be of little more use in a concrete dispute than the Thomistic injunction
36 Roe v Wade (1973) 410 US 113. See for its effects: D.F.B. Tucker, The Rehnquist Court and Civil Rights
(1995) ch 2 and 92-95, and L.H. Tribe, Abortion: The Clash of Absolutes (1990). Roe v Wade may not have started
the moral battle over abortion; the point is that it did nothing whatever to resolve it, while drawing the Supreme
Court into the controversy, to its predictable discredit.
37 'Parliamentary Supremacy and the Judiciary under a Bill of Rights: Some Lessons from the Commonwealth'
[1997] PL 96.
38 Ibid at 107. Sir Sydney made a very similar point in his second Tanner Lecture in the University of Oxford
on 27 February, 2001, but omitting homosexuality from his list of examples.
39 The Sexual Offences (Amendment) Act 2000 had to be enacted using the Parliament Acts 1911 and 1949.
Section 28, Local Government Act 1988 provoked ongoing controversy.
40 At 147-50, 181-82.
41 At 149.
42 [Sic] 18.
43 At 215-16.
44 J. Waldron, 'A Rights-Based Critique of Constitutional Rights' (1993) 13 OJLS 18 at 28-31.
45 N. MacCormick, Legal Reasoning and Legal Theory (1978) at 265 (emphasis in original), and ch 10 passim.
to 'do good and avoid evil'.46 As one critic of the leading mo
derive principles of natural law by practical reasoning has com
Finnis] must believe that the most difficult, troubling and co
issues would vanish if we only thought carefully and seriousl
Klug elsewhere makes much play of human rights as the Zeitgeist
the vibrant contemporary school of postmodern jurisprudence
transcendent values. One thesis on 'Politics and Law in the Postmodem Tradition'
maintains that:
The struggle against the monopolies of interpretation must be conducted in a way that
leads to the proliferation of political and legal interpretive communities. The controlled
dispersal of the legal realm will contribute to decanonize and trivialize law. The end
of legal fetishism will mark the emergence of a new legal minimalism.49
Douzinas is scathing of the need for simple life instructions and a universal
moral order which is felt in a time of 'postmodem anxiety'.50 These theorists'
emphasis on multiple, minimalist interpretations (or 'subjectivities') is quite
irreconcilable with the neo-Kantian idea of transcendent values, which informs
natural rights projects."
Moving from the inherent contestability of values generally to rights-based
moral theories in particular, further objections have been raised. Baroness
Warnock opposes the discussion of (contestable) morality in terms of rights,
since the very words 'a right' possess considerable rhetorical power, 'an air of
certainty, borrowed from the positivistic sense of "right", and the implication
that the right could be proved'. In other words, talking of 'rights' gives a
(spurious) sense of certainty and objectivity to the debate-whereas we are quite
accustomed to disagreements about morality, when discussed openly in terms
of right and wrong.52 In the context of the HRA itself, it has been argued that
the two paragraphs of Article 10 of the European Convention on Human Rights
are 'the statement of a political conflict purporting to be a resolution of it'.53
Klug's focus on the need for public debate might seem to concede this. But how
is it possible that human rights can provide 'shared moral values' and establish
a common framework for society, when they are inherently and eternally con-
testable?
46 L. Weinreb, Natural Law and Justice (1987) at 108-15.

47 Ibid at 115, criticizing J. Finnis, Natural Law and Natural Rights (1980).
48 At 1-6. Also Helena Kennedy QC in her Foreword (xi).
49 B. de Sousa Santos, in A. Sarat and T. Kearns, The Fate of Law (1991) at 105 et seq. See also J. Derrida,
'The Mystical Foundation of Authority' (1990) 11 Cardozo LR 949.
50so C. Douzinas, The End of Human Rights (Hart, 2000) at 213-15.
s As Kant said, 'politics must bend the knee before right', H. Reiss (ed.), Political Writings (2nd edn, 1991) at
125. It may, however, be taking Kant out of context somewhat to suggest that he is supporting a justiciable bill
of rights, as a desirable pattern of political organization.
52 M. Warnock, An Intelligent Person's Guide to Ethics (1998), ch 3. See further, for the argument that interposition
of reified rights 'between the juristic fact and the legal consequence' is logically unnecessary, and bears 'a
considerable structural resemblance to primitive magic thought concerning the invocation of supernatural powers':
A. Ross (1957) 70 Harv LR 812 ('TO-Ti').
53 J.A.G. Griffith 'The Political Constitution' (1979) 42 MLR 1 at 14.
This admission that decisions about human rights ar

are not self-evident and, therefore, that there should be
in their fulfilment, is certainly welcome. Yet does it
human rights project? Once it is conceded that rights ar
things, rather than employing Dworkinian rhetoric
principle',54 it becomes clear that enforcing them th
problematic. Public debate and decision on controver
take place in the societal forum expressly established
serious mistake to shift the forum to the courts, une
for wide-ranging debate but for resolution of the dis
them. Klug rightly makes no attempt to argue that t
legitimacy. Her argument is rather to emphasize the com
Human Rights Act whereby judges can review statu
down. The remedy provided is a declaration of incomp
remains in force and must be applied by the court.
Government to decide whether to amend a statute fo
Statutory Instrument requiring the approval of both
Thus, concludes the author, the Act 'combines a series
with an approach which does not close off democrati
once the courts have ruled on it'.57
It may well be true that, from the strictly legal viewpoint, the Act has no effect
on Parliamentary sovereignty. Yet, as Lord Borrie suggested in the Human Rights
Bill's second reading, 'the political reality will be that, while historically the
courts have sought to carry out the will of Parliament, in the field of human
rights Parliament will carry out the will of the courts'.58 His Lordship went on
to note that the Government's own White Paper stated that: 'A declaration ...
will almost certainly prompt the Government and Parliament to change the
law'.59 A.W. Bradley comments that while judges might have no formal power
to strike down statutes, they are 'empowered to deliver a wound to Parliament's
handiwork that will often prove mortal, even though life-support for the victim
must be switched off by the Government or Parliament, not by the courts'.60 Of
course, only time will tell, but the likelihood must be that Governments will
faithfully amend legislation which is found incompatible, just as the UK has
invariably implemented rulings of the European Court of Human Rights, not-
withstanding Parliament's 'legally unlimited sovereignty'. Appealing to the strict
legal position might anyway seem to betray constitutional naivety. The entire
UK constitution is based on conventional understandings quite at odds with the
apparent legal position. Compare the Queen's immense powers in strict law with
54 R. Dworkin, Taking Rights Seriously (1977) and Law's Empire (1986).

55 The very word means 'speaking' in Old French (Concise OED).
56 HRA, ss 4 and 10. Cf. Klug at 164-66.
57 At 184.
58 Hansard HL (3 November 1997) col. 1275.
59 Cm 3782 (1997), para 2.10.
60 In J. Jowell and D. Oliver (eds), The Changing Constitution (4th edn, 2000) at 56.
her real, vestigial political power. The argument that the H

in no way affected Parliamentary sovereignty echoes the v
the European Union has left that principle legally unchanged.6
has comprehensively dismissed that 'constructionist' argument
there has been a 'constitutional revolution' in which the Parliament of 1972 has
bound its successors (i.e. to follow European Community Law).62 The Factortam
saga supports this argument of Parliament's subservience to the EU during t
period of Membership-which, of course, is likely to continue for the foreseea
future. We could add that Parliament is no more likely to repeal the Huma
Rights Act than the European Communities Act.
In any event, Klug's focus upon the 'declaration of incompatibility' remedy
may give a distorted picture of the effect of the Act, and the extent of pow
consequently transferred to the judges. Section 3 requires the court to interp
existing and subsequent statutes to be consistent with the Convention, 'so fa
as possible'. The House of Lords' first foray into section 3 interpretation suggests
that the outer limits of the 'possible' are very far off indeed. Lord Steyn stat
that:
it will sometimes be necessary to adopt an interpretation which linguistically appea

strained ... A declaration of incompatibility is a measure of last resort. It must be
avoided unless it is plainly impossible to do so. If a clear limitation on Convention righ
is stated in terms, such an impossibility will arise.63
The implication is that, absenting an express derogation, any form of statuto

wording might be interpreted in line with the Convention, so as to avert th
need for a declaration. If so, this approaches the 'Humpty Dumpty school' o
statutory interpretation once identified (and scorned) by Lord Atkin: 'When
use a word it means just what I choose it to mean, neither more nor less'.64 O
more respectfully, section 3 mandates courts to ignore the words of statut
altogether, when necessary.65 In conclusion, section 3 seems to have granted t
courts very wide powers as a matter of law, while section 4 transfers furth
power, in real, political terms. To concede merely, as Klug does, that Parliame
'no longer has a free rein',66 and that its sovereignty has been 'dented'67 seem
61 See Sir John Laws 'Law and Democracy' [1995] PL 72 at 89.

62 H.W.R. Wade 'Sovereignty: Revolution or Evolution?' (1996) 112 LQR 568; European Communities A
1972. 'Parliament can bind its successors. If that is not revolutionary, constitutional lawyers are Dutchmen'. Wa
ibid at 573.
63 R v A (No 2) [2002] 1 AC 45 at 68. Emphasis in original. The lone dissenter from this approach seem
have been Lord Hope of Craighead: ibid at 87. Lord Hope reiterated those doubts in R v Lambert [2001] 3
206 at 233-235, where, however, all members of the House thought that the relevant words could be interpre
compatibly without any straining of language.
64 Liversidge v Anderson [1942] AC 206 at 245. Cf. L. Carroll, Through The Looking Glass, ch 6.
65 How this is to be deemed 'interpretation' is unclear. Cf. the ('strictly obiter') warning of Lord Woolf CJ
Poplar Housing Association v Donoghue [2002] QB 48 at 72-73, that the court's section 3 role is interpretation
legislation. There have been a number of declarations of incompatibility, e.g. R (H) v North London Mental He
Tribunal [2002] QB 1 (leading to SI 3712/2001).
66 At 164.
67 At 166.
aimed at playing down, or concealing, the anti-dem

has taken place.
Some would argue that this development is in fact neit
as Lord Bridge of Harwich (perhaps questionably) de
European Community law may lead to the 'disapplic
Act of Parliament.68 It seems to have become genera
Parliamentary sovereignty was a construct of the 18t
Bentham), which received its canonization only with
Lectures Introductory to the Study of the Constitution in
that 'modem assertions of unlimited sovereignty rest
constitutional history'.69 In particular, commentators
onto certain well-known dicta of Coke CJ in Dr. Bo
CJ in Day v Savadge,71 to the effect that Acts of Par
'common reason' or 'natural equity' (respectively) ar
arguments have now been exploded as 'myths' by Jef
magisterial study of the history of Parliamentary sover
century jurisprudence in particular, Goldsworthy p
Coke's Bonham dictum was one of the reasons cited for his removal as Chief
Justice of the King's Bench in 1616. Lord Ellesmere LC commented that
purported to advance 'the reason of a particular court above the judgment
the realm',74 and informed Coke's successor that judges could not nullify statu
deemed contrary to common right and reason, as this was for King and Parlia
to decide." Goldsworthy concludes that 'the idea that courts could inval
statutes contrary to fundamental principles of common law appeared brie
the 17th century but did not enjoy substantial influence either then or si
His overall historical conclusion is that 'for many centuries there has b
sufficient consensus among all three branches of government in Britain' to m
the sovereignty of Parliament its fundamental rule of recognition.77 To
68 R. v Secretary of State for Transport, ex parte Factortame (No 2) [1991] AC 603 at 658. It is certainly t
the supremacy of Community law over national law was established well before the accession of the
Kingdom: Costa v ENEL [1964] ECR 585.
69 T.R.S. Allan, Law, Liberty and Justice (1993) at 269. See also G. de Q. Walker, The Rule of Law (Me
UP, 1988), ch 5.
70 (1610) 8 Rep 114a.
71 (1614) Hob 85.
72 For example, Ian Loveland in his Constitutional Law, A Critical Introduction (2nd edn, 2000) cites these cases
to show that early 17th Century judges recognized 'basic moral and political principles' or 'natural law doctrines'
which limited the power of Parliament. Ibid at 20.
73 J.D. Goldsworthy, The Sovereignty of Parliament (Oxford, 1999): passim. For the 'myths' see ibid at 6-7. For
a summary of his historical conclusions, ibid ch 9.
74 Observations Upon Sir Edward Coke's Reports (1615).
75 Address by the Lord Chancellor to Sir Henry Montague (1616) Moore K.B. 826, 828. Note also the impeachment
of judges who had suggested in the Case of Ship Money (1637) 3 State Trials 826 that Parliament could not legally
remove the King's power to levy that tax. It was alleged that 'the judges are the executors of statutes, and of the
judgments and ordinances of Parliament; they have here made themselves the executioners of them', (1641) 3
State Trials 1272.
76 Goldsworthy, above, n 73 at 233.
77 Ibid at 234. For the rule of recognition see H.L.A. Hart, The Concept of Law (2nd edn, 1994), chs 5 and 6
who hanker after 'a venerable tradition of English law, a

stitutionalism' his reply is blunt: 'There never was such an
not the HRA's curtailment of Parliamentary sovereignty
dangerous, it must at least be acknowledged as a novel de
which strikes at the very foundations of our legal system.
It is unclear quite how the public is to be involved in th
making under the Act, as Klug maintains should happen.
about the role for their elected MPs in the 'dialogue' between courts and
Parliament79 for the reasons given above. Yet this is the only obvious avenue for
public influence on the development of the HRA 'living instrument'. The
procedures with which the courts must work in balancing individual rights and
the public interest are seriously inadequate for that task, and for the involvement
of the public. The classic analysis is Lon Fuller's posthumous article 'The Forms
and Limits of Adjudication'.80 He argued that adjudication was not a suitable
means by which to decide 'polycentric' questions, that is, many-centred policy
issues where 'a pull on one strand will distribute tensions after a complicated
pattern on the web as a whole'.8" The court, informed only by the parties to the
dispute, is unable to predict such complex and far-reaching repercussions. As
Lord Devlin once put it, reforming courts 'turn themselves into law revision
committees working perforce without the aids such committees have'.82 The
solution might be to open up the process to allow the representation of wide
ranges of interests (through generous standing and intervention rules) and the
presentation of social and economic data to the court. Thus, adjudication would
move away from the bipolar, adversarial paradigm, which is limited in the ways
that Fuller described.
Such changes in public law procedure have occurred in the USA (see, for
example, the 'Brandeis Brief').83 This may enable better resolution of polycentric
issues, but the political implications of the procedural shift have not gone
unnoticed. Chayes commented that:
from the perspective of the traditional model [of procedure], the proceeding is re
cognizable as a lawsuit only because it takes place in a courtroom before an officia
called a judge ... [Such judicial functions are parasitic], in the sense that they can b
effectively carried out only by drawing on the legitimacy and moral force that t
courts have developed through the performance of their inherent function, adjudicatio
according to the traditional model.84"
78 Goldsworthy, ibid at 235.

79 At 181-86.
80 (1978) 92 Hamr LR 353, especially at 393-405. See J. Allison [1994] CLJ 367 and [1994] PL 452.
81 Fuller, ibid at 395.
82 p. Devlin, 'Judges and Lawmakers' (1976) 39 MLR 1 at 12. He cites the extensive research assistan
wide-ranging consultation exercises, which Law Commissioners enjoy and judges do not. For criticism of r
judicial tendencies in this direction see F. Bennion, 'Consequences of an overrule' [2001] PL 450.
83 The locus classicus is A. Chayes, 'Public Law Litigation' (1976) 89 Harv LR 1281.
84 Ibid at 1302, 1304.
A proposal for wider intervention rights in English judic

warnings of a similar nature from a senior member o
only if there was to be a fundamental political shift in th
could English court procedures, and judicial attitudes and
appropriate for determining the social issues arising u
Yet no attempt is made by Klug to rebut Fuller's arg
process being inapt for decision of polycentric, socio
does she recognize that the Human Rights Act establishes
procedural regime. With its locus standi requiremen
public body has acted incompatibly with the Convent
the violation,87 the Act allows challenge and intervention
of persons and interests than obtains for judicial revi
the courts in the formalized rights debates under th
restricted. Calls for a 'human rights culture' and dem
rights are all very well, but ultimately the very point of
of Rights is that decisions are made in cloistered cour
unlike ministers, be lobbied.89 As one recent, detailed
result is, if not the end of politics, then its legalizatio
'judicial review [of statutes] must be seen as the rete
aristocratic rule' in a democratic state, where the aim is 'no less than the
elimination of the idea of the (political) sovereign and its replacement with the
sovereignty of law'.91 Has Law's Empire finally colonized the British polity? How
long before we mirror the USA, where it can be argued that the entire country
is 'a vast, diffuse school of law'?92
That unappealing vision of the future receives oblique regard from Klug in
her book. The obvious way to prevent the legalization of politics is (or so one
might have thought) to keep the lawyers out of politics altogether, and certainly
not transfer to the courts a limitless vista of political power, as the Human Rights
Act has done. In fact, however, the remedy fashionably prescribed for rule by
85 A Matter of Public Interest (JUSTICE, 1996); Schiemann LJ [1996] PL 240. For further criticism, see C.
Harlow (2002) 65 MLR 1. But see now Part 54.17, Civil Procedure Rules (2000): 'Any person may apply for
permission to file evidence or make representations at the hearing of the judicial review'.
86 Sir Jack Jacob warned of the 'overwhelming difficulties which would be experienced by the practitioners and
the judiciary if they were required to change their methods, practices and habits to conform with the inquisitorial
system'. J.I.H. Jacob, The Fabric of English Civil Justice (1987) at 17. Equally applicable here, mutatis mutandis.
87 HRA, ss 7(1) and (3). Contrast the wide rights of intervention for the Crown: s 5. See, generally, J. Miles,
'Standing Under the Human Rights Act' [2000] CLJ 133. Note, however, that similar restrictions do not apply
when the court is interpreting legislation in line with the Convention, as required by HRA, s 3.
88 Supreme Court Act 1981, s 31(3) ('sufficient interest'), as interpreted in (for example) R v Secretary of State
for Foreign Affairs, ex parte Rees-Mogg [1994] 1 All ER 457, and R v Somerset CC, ex parte Dixon [1997] COD 322.
89 As Klug herself says at 182.
90 M. Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (2000) passim,
and especially at 208-13, 229-35.
91 Ibid at 213, 224.
92 M. Glendon, Rights Talk (1991) at 2-3. Cf. A. de Tocqueville, Democracy in America (1835-40) at 1: 'Hardly
a political question arises in the United States that is not converted into a legal question and taken to court for
decision'.
lawyers is to accept it, but then re-invent the lawyers.9

particular are castigated for 'myopia' and 'formalism', that is
inhabit 'a culture which looks to precedent rather than p
lawyers are said to pose the greatest danger of all to the fl
rights culture, and they threaten to 'squeeze the soul out o
Act' and make it like any other statute.95 It is hardly very pe
'as with any bill of rights, there is a danger that lawyers,
wider audience, will dominate the debate'.96 But could any
this? Is it not plainly inevitable? It sounds rather odd to c
approaching a new Act of Parliament as if it were a set o
construed as would any other law. Their obvious mistake l
the Human Rights Act has much to do with law at all. For
legalization of politics is the politicization of law, of lawy
judges.97 As Malleson says, the HRA 'is widely recognized
judicial activism'." Who can doubt that as the judicial rol
importance there will be a proportionate increase in public
attitudes and decisions, and in political involvement w
ments?99 Already, one pressure group has sought permission
HRA rape evidence case R v A (No 2), to argue that five m
constitute an impartial court in the context of such an i
troversially, improper political influence on the judiciary may
Lord McCluskey pointed out in his Reith lectures that '
professional lives thinking in terms of precedents, rules
advocate is the father of the judge and neither is a social
judicial role has always been limited to deciding the case b
wider public issues, and, as argued above, the rules of pro
are tailored to that end. Of course, everyone knows that the c
93 Cf. Lord Hoffmann's protestations in the Alconbury case: 'The [HRA] was no dou
the rule of law, but not the rule of lawyers' [2001] 2 WLR 1389 at 1427. (Quaere w
from foresight of virtually certain consequences: R v Woollin [1999] 1 AC 82.)
94 178-79. Also xii-xiii (Helena Kennedy QC).
95 Ibid.
96 A. Puddlephat, quoted by Klug at 178.
9' M. Loughlin, above, n 90, ibid.
98 K. Malleson, The New Judiciary (1999) 24 et seq. Perhaps only the acceleration of an existing trend? See J.
Rozenburg, Trial of Strength (1997).
99 This is notorious in the USA. See R. Bork, The Tempting of America: The Political Seduction of the Law (1990)
and Silverstein, Judicious Choices: The New Politics of Supreme Court Confirmations (1994).
100 See 'Rape Law Challenge to All-Male Lords' (Guardian, 19 March, 2001). Permission was predictably
refused (without a hearing and without reasons being given). Criticized by M. Stevenson, 'Bad Judgment' (Guardian,
27 March, 2001). Cf. The Equal Treatment Bench Book (Judicial Studies Board, December 2000).
0'o J.A.G. Griffith contends (TLS, 20 April 2001) that the sudden transformation of 'senior law lord' from de
facto seniority to a powerful office, and the parachuting-in of Lord Bingham of Cornhill CJ (as he then was) to
fill it on 6 June, 2000, marks 'the day when the judiciary formally became a political institution'. He argues that
Lord Bingham was appointed by the Government to give a strong lead in the crucial early Human Rights Act
cases. (Cf. Lord Bingham, interviewed by Frances Gibb, The Times, 17 July, 2001, calling for the House of Lords
to become a Supreme Court.)
102 McCluskey, Law, Justice and Democracy (1987) at 4-5.
by judicial decision-making, which, after the fashion of t

over time, profound changes in the landscape.103 But
The judge, even when he is free, is not wholly free. He is

He is not a knight-errant roaming at will in pursuit of
goodness. He is to draw inspiration from consecrated princ
Certainly the English judiciary has taken this cautio

House of Lords has frequently refused invitations to d
of social policy, deferring to Parliament to perform the
public interest.'05 To return to Lord McCluskey, judges sh
of social policy since 'it is not a role which, by traditi
they are qualified to perform'.'06
This ingrained, lawyerly attitude is precisely what,
thusiasts, must now be eradicated. A fine example of
Lustgarten's article 'Making Rights Real', which conclu
will be too ill-educated to cope with the HRA. A mer
university education in law will not equip fledgling pract
intellectual tools, still less 'the ability to research, u
social science data, which may become of increasing
Convention litigation'.'07 After all, McLachlin CJ has
qualities needed to be a modern (i.e. constitutional) co
It no longer suffices to be a competent legal scholar, and a fa
sensitive to a broad range of social concerns. They must p
of the importance of individual and group interests and r
touch with the society in which they work, understanding i
ivory tower no longer suffices as the residence of choice for
In sum, the proposal is for judges and the entire legal pro
from 'lawyers and arbiters', into excellently wise, pol
gineers. Or, more exactly, they must become the ph
commended as the ideal rulers of society in the Repub
that 'discerning minority' who manage to combine love of
intelligence, quickness of wit, energy and greatness o
sober and steadfast life'.109 Naturally, the group that
103 B. Cardozo, The Nature of the Judicial Process (1921) at 25.

104 Ibid at 141.
105 A very clear example is the rejection of Lord Denning MR's 'family car' d
[1973] AC 127. See also the strong dissents by Lord Keith of Kinkel and Lord J
BS v Inland Revenue Commissioners [1993] AC 70.
106 McCluskey, above, n 102 at 24. Also see at 33: 'We should not trust [judge
because the judicial system has a powerful constitutional inertia which re
changing the settled law, because judges cannot reach out and create whole
are not equipped to assess the social merits of law reform and because judge
the necessary value-judgments'.
107 I. Leigh and L. Lustgarten, 'Making Rights Real' [1999] CLJ 509 at 54
lo08 B. McLachlin, 'The Role of Judges' (1994) 110 LQR 260 at 266 (empha
June, 2000, 'Personality tests will be used to select new judges'.
109 Plato, Republic (tr. T. Griffith, 2000) 431c, 503c.
blessed possession' of philosophy will be a small elite: 'It's im
masses to be philosophical'.11 Law's Empire is profoundly anti
lawyers as its ruling aristocracy.
3. Conclusion
Thus, there are two basic, incompatible visions of human rights. The traditional
Kantian vision, espoused today by Ronald Dworkin, sees rights existing in a
higher realm of pure reason (or principle), transcending the flawed, mortal world
of politics. Judges, the rights-enforcers, are Platonic guardians, or the 'Living
oracles of the law','11 and are truly 'Herculean',112 with law itself the 'creature
of Justice' and 'jurisconsults as her priests, for Justice is the goddess whom we
worship'.113 There is no room for involvement of laymen in the mysteries of the
'secular religion'."4 Only the initiated may join the disputations in its closed
world. It is-and must be-insulated from the vulgar debate of politicans, and
worse still the ignorant prejudice of their electors. This conception is a direct
repudiation of democracy: deliberative, participatory, majoritarian. The decisions
of the demos must be controlled by the legal elite; the quasi-religious imagery
is certainly no accident."'15 But this imperial view of law is astonishingly arrogant.
How can the law be supposed to hold the key to the eternal ethical and political
dilemmas of human society? Who can sensibly believe that lawyers and judges
have insights into the Good Life which have eluded philosophers both ancient
and modern?
It is this Utopian lawyers' dream"6 which Klug ultimately, but clearly, re-
pudiates when she admits that rights are controversial, and give rise to a political
'debate without end' in which the public needs must be involved."' Her 'third
wave' of human rights shifts away from Kant and the transcendent, and towards
a postmodern vision, rights as contestable and culturally-specific. But this sensible
and realistic concession makes it impossible to justify a scheme of higher-order
rights, anterior to the democratic process. Lawyers are not politicians, any more
10o Ibid at 494a. Compare the extensive education programme which Plato recommends for philosopher-
guardians with Leigh & Lustgarten's strictures upon legal education in England.
111 Blackstone, Commentaries, I 69. Cf. J. P. Dawson, The Oracles of the Law (1968).
112 Significantly, Dworkin's chosen name for the judge able perfectly to follow his theory of 'law as integrity' is
the 'Hercules' of Greek legend. See Taking Rights Seriously (1977) and Law's Empire (1986).
113 Digest 1.1.1 (Ulpian). Translated by Austin (Lectures on Jurisprudence, 5th edn, 1911 at 217), who immoderately
describes this attempt to define jurisprudence as 'absolutely pitiable ... [and displaying] contemptible imbecility'
(ibid).
114 As human rights are described by Dworkin in R. Gordon and R. Wilmot-Smith (eds), Human Rights in the
United Kingdom (1996) at 60. See further C. Douzinas, The End of Human Rights (2000) at 116: God is dead, and
has been replaced by international law.
115 See further P. Soper, 'Metaphors and models of law: The judge as priest' (1977) 75 Mich LR 1196, and
Arnold, The Symbols of Government (1935) esp. at 59-71.
116 Hart described the project of denying that judges exercise discretion to make law as a Noble Dream (with
Dworkin as 'the noblest dreamer of them all', at 137), 'American Jurisprudence Through English Eyes' in Essays
in Jurisprudence and Philosophy (Oxford 1983): dreams, however, are always illusions (ibid at 144). Dworkin himself
entitled the penultimate section of his Law's Empire 'Law's Dreams' (see 407-10).
17 In her foreword, Baroness Kennedy, too, warns against the inordination of a 'new erudite priesthood' of
rights lawyers: xiii.
than they are oracles, philosophers or priests. Politica

not be transferred from the elected Parliament, 'the gran
to the closed world of the courts of law. The only re
for requiring legal enforcement is that rights would
dreams', 'paper shields', 'nonsense upon stilts'."' B
question; the desirability of the power-shift to the co
if we are to have iron-clad human rights legally enf
Government, then what is this in the end except a c
rights-as-religion, politics bending the knee before (h
but fails, to straddle the two horses at once. If rights are
then law becomes a quasi-religion, and the judges cas
If rights are inherently political then law becomes po
(ordinary) politics. The moves are equally unwise; we
would be better to make neither. Rights cannot be ab
judicially from 'the chill and distant heights'119 and
political questions debated and resolved democratical
Klug attempts fails because it is impossible.'12
McLachlin CJ has written that, whatever the prob
Charter, the one thing which no-one seriously suggest
it is to blaspheme against the 'dominant ethic' of th
damental norm upon which liberal democracy is fou
shrink from such a repeal. To venture the fate of Uzz
of Nachon as it may be,123 those who share this writ
decision-making by the elected representatives of th
people directly, must agree that the Human Rights Ac
on the United Kingdom's path to democracy. It could
process is 'a gamble' on the possibility that a people w
right way.124 Removing ultimate responsibility to the co
only to promote irresponsibility in legislators, as it prom
'genuine and lasting respect for the rights of others cann
118 213.
119 Cardozo, above n 103 at 168.
120 The assisted suicide case, R (Pretty) v DPP, obliged the Divisional Court to rely upon both contestable
ethical judgments ('In our view the right to human dignity which is enshrined in Article 3 [ECHR] is not the right
to die with dignity, but the right to live with as much dignity as can possibly be afforded, until that life reaches its
natural end'. [2001] EWHC Admin 788 at para [48]) and its perception of public attitudes ('All the indications
are that democratic opinion in this country is not ready for change', ibid at para [6]). The House of Lords were
at pains to proclaim their decision as one based firmly upon law, and not ethics (see Lord Bingham, [2001] UKHL
61, [2002] 1 AC 800 at para [2], Lord Steyn, ibid at para [54]). Ultimately, however, it is difficult to see how
such value-judgments could be avoided.
121 B. McLachlin in C. Gearty and A. Tomkins (eds), Understanding Human Rights (1996) at 37.
122 Ibid at 20.
123 2 Samuel, ch 6, Verses 6-7. Cf. Lord Dunedin in Russian Commercial Bank v British Bank for Foreign Trade
[1921] 2 AC 438 at 449.
124 R. Dahl, Democracy and Its Critics (New Haven 1989) at 192
fiat; it is most likely to emerge from the dialogue and compromise
politics in a democracy'.125 Repeal of the Human Rights Act may
yet it should take place with alacrity.
125 Goldsworthy, above, n 73 at 263.

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Review: Law's British Empire

Law 's British Empiref

5 Quoted in L. Bridges et al, Legality and Local Politics (1987) at 93.

2. Values for a Godless Age?

rhetoric of rights is less about human dignity and free

Even rights enthusiasts recognize, though they are

The point is that controlling the supposedly neutral term

46 L. Weinreb, Natural Law and Justice (1987) at 108-15.

This admission that decisions about human rights ar

54 R. Dworkin, Taking Rights Seriously (1977) and Law's Empire (1986).

her real, vestigial political power. The argument that the H

it will sometimes be necessary to adopt an interpretation which linguistically appea

The implication is that, absenting an express derogation, any form of statuto

61 See Sir John Laws 'Law and Democracy' [1995] PL 72 at 89.

aimed at playing down, or concealing, the anti-dem

who hanker after 'a venerable tradition of English law, a

78 Goldsworthy, ibid at 235.

A proposal for wider intervention rights in English judic

lawyers is to accept it, but then re-invent the lawyers.9

by judicial decision-making, which, after the fashion of t

The judge, even when he is free, is not wholly free. He is

Certainly the English judiciary has taken this cautio

103 B. Cardozo, The Nature of the Judicial Process (1921) at 25.

than they are oracles, philosophers or priests. Politica

125 Goldsworthy, above, n 73 at 263.

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