5.4.7.4 Overruling Non-Compliant Legislation
Human rights law provides a mechanism for overruling non-compliant legislation that governments might otherwise introduce.
The incorporation of human rights into law constrains future governments from making changes that might suit the current political mood, but which inflict damage on some sections of society. This is a formalisation of distrust, as expressed by John Griffith in his essay, Making Rights Work, in Penny Smith’s book of the same name:
“The justification for a Bill of Rights is that, on certain matters, democratically elected representative assemblies, often controlled by government majorities, are not to be trusted with the protection of ‘fundamental rights’. It therefore follows that whenever the courts are of the opinion that laws passed by such assemblies conflict with the provisions of a Bill of Rights, those laws should be struck down by the courts. This, of course, is an important part of the powers of the Supreme Court in the USA.” [p. 91]
This distrust may seem unnecessary in a modern liberal democracy, but it was a precaution that has been thought necessary by politicians in different parts of the world after they had forcibly been reminded of the dangers of oppressive government; they wanted to make it less easy for their successors to override important liberties. The times at which the legislation was introduced illustrate this point: the Amendments to the American Constitution after its war of independence; the Universal Declaration of Human Rights in the aftermath of the Second World War; the South African Constitution after the end of apartheid. European Human Rights legislation has a particular relevance, reflecting the lessons learnt from the way that Hitler was able to oppress minorities without any mechanism for anyone in Germany or any other country to stop him.
Human rights provisions were used for overruling non-compliant legislation on terrorism, where politicians were threatening the civil liberties of the entire population:
● Conor Gearty’s article, Dilemmas of terror, quoted a former British cabinet minister’s comment about the temptation to legislate after a terrorist incident:
“the motivation was to be seen by the public as ‘doing something’ in the aftermath of an atrocity… and that a swift response had the effect of boosting morale and restoring public confidence”.
● A EurActiv.com article, House of Lords: UK law breaches Human Rights convention, described a legal move in December 2004 to prevent the government from indefinitely detaining nine “suspected international terrorists” without trial. The ancient right of habeas corpus was protected from political expediency.
● An NBC article in 2007 reported a similar example in America, related to the use of electronic surveillance: Judge rules part of Patriot Act unconstitutional, because it:
“now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”
Abortion is another issue involving human rights. The American Constitution was designed to ensure that people’s human rights would be guaranteed throughout the country, overruling State legislatures – but, as reported by Reuters, U.S. Supreme Court overturns Roe v. Wade, ends constitutional right to abortion. That decision removed the federal guarantee of a woman’s human rights over her own body, illustrating the degree to which the Supreme Court has become politicised. It is no longer acting to protect people’s human rights against States wishing to remove them, and it has acted against the wishes of most of the population: “62% of Americans say abortion should be legal in all or most cases”, according to a Pew Research survey.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/5474a.htm.