I am a judicial review sceptic – I do not trust courts to effectively secure our freedoms. In my view, rights are political – to secure them we must place them at the centre of politics and not rely on the judicial elite to keep us free from tyranny. As a result, I have argued that:
The unintended consequence of support for the Human Rights Act (HRA) is that it perpetuates the process of juridification – leaving rights as an issue to be dealt with by the judiciary, and marginalising the people from any active role in the defence of liberty. But placing the people at the centre of government and re-asserting our constitutional role ensures a proper institutional balance.
For this to be effective, parliament and the public must actively seek to restrain the executive – to hold it to account for any real or potential abuses of civil liberties.
Jimmy Wales, one of the founders of Wikipedia, was inspired by Friedrich Hayek's argument that, since knowledge is dispersed, central planners can never take account of all relevant factors: for Wales this meant that rather than centralising the pursuit of knowledge in the hands of a small number of editors, he should open his encyclopedia to be edited by everyone.
I think we ought to do something similar with the defence of civil liberties through the inclusion of the broadest range of public opinion in the parliamentary process. It just so happens that such an opportunity has presented itself, and I would like your help.
The Australian government recently published its Human Rights Framework. The framework is a grand statement on the promotion of rights in Australia and makes a number of welcome statements. The government has set about implementing the framework and has introduced the human rights (parliamentary scrutiny) bill to give legislative effect to it.
The most striking feature of the bill is that it does not provide for judicial review. The National Human Rights Consultation had recommended the adoption of the Human Rights Act similar to the UK. This was described as the "dialogue model" of HRA. Despite this, the government opted for parliamentary scrutiny of proposed legislation to ensure compliance with seven international human rights documents: the international covenant on civil and political rights; the international covenant on economic, social and cultural rights; the convention on the elimination of all forms of racial discrimination; the convention on the elimination of all forms of discrimination against women; the convention against torture and other cruel, inhuman and degrading treatment or punishment; the convention on the rights of the child; the convention on the rights of persons with disabilities.
On the one hand this proposal is broader than the UK HRA, in that it seeks to ensure legislative compliance with a range of human rights norms. On the other hand, the UK HRA incorporates not just the (majority of) rights contained within the European convention on human rights but also the jurisprudence of the European court of human rights. Furthermore, it empowers the UK judiciary to interpret legislation, where possible, so that it complies with the UK HRA or to declare legislation to be incompatible with the UK HRA.
The legal and constitutional affairs committee of the Australian Senate is currently conducting an inquiry into this legislation and individuals are free to make a submission to the inquiry. Accepted submissions are considered by the committee when conducting its inquiry and issuing its report. Hopefully the report will influence the parliamentary debate and may result in amendments to the bill.
Having argued that the people should be given a role at the centre of our constitution – upholding liberty and restraining executive power – it seemed appropriate to invoke the people in preparing a submission for the inquiry.
I believe that as an interested public, familiar with the UK HRA, our collective views will be of interest to the inquiry – so, I would like your comments and opinions on the bill.
In particular you might have a view on: the use of parliamentary scrutiny rather than judicial review; how parliamentary scrutiny might be made to work effectively; specific weaknesses in the proposal which could be avoided; or any other matter arising from the bill.
I will endeavour to follow your comments and incorporate them into a submission for the inquiry. The final submission will be posted on liberty central and may be published on the committee website – if and when that happens liberty central will let you know.
Together, perhaps, we can produce something worthwhile.
Fergal Davis, a lecturer in law at Lancaster University.