The Canadian human-rights model: a brief response to Richard Edwards

In one of several recent blog posts about the possibility of UK withdrawal from the ECHR, Richard Edwards — responding to earlier posts by Gavin Phillipson and me — considers the Canadian Charter of Rights and Freedoms, section 33 of which, in effect, allows struck-down rights-incompatible statutes to be reinstated by the legislature, “notwithstanding” the incompatibility. Edwards makes some interesting points in his post, but there are two with which I take issue.

First, he says:

The Canadian model is in truth a red herring. Why? To begin with, the clause is a Canadian solution to a Canadian problem. The Canadian Charter of Rights and Freedoms was the product of a long and protracted process to patriate the Canadian Constitution. A constitutional, entrenched bill of rights had been long mooted (See for example, the Victoria Charter 1971). By the early eighties a constitutional Charter had become part of Trudeau’s ‘Peoples Package’. However, the Provincial Premiers were very unenthusiastic about the constitutional charter, favouring a continuation of the legislative supremacy within matters of provincial competence. As part of the compromise to secure the Premiers’ agreement a notwithstanding clause was inserted into the Charter (s.33). Trudeau later described this compromise as the biggest mistake of his career.

This may be factually accurate, but there are two difficulties with Edwards’ position. On the one hand, neither Phillipson nor I argue that the Canadian model should be adopted in the UK; rather, it was referred to — along, in my post, with the Indian and New Zealand systems — as evidence that not everyone subscribes to the judicial supremacist model found in the USA and the ECHR. As Phillipson put it, rejection of that model is not the exclusive preserve of “right-wing crankery”. On the other hand, the fact that, as Edwards puts it, the Canadian model is a solution to a “Canadian problem” is neither here nor there. The fact that it is a solution to a Canadian problem does not necessarily mean that it would be an inappropriate way of striking the balance between political and judicial authority vis-a-vis human rights in the UK or elsewhere.

Second, Edwards writes:

The problem with a notwithstanding clause is self-evident: it swallows whole the idea of judicially protected rights. Or to put it another way, as citizens we will enjoy a catalogue of judicial enforceable fundamental rights and freedoms save in such circumstances as the Prime Minister deems necessary. Moreover, the idea of the legislative override is fundamentally incompatible with the rule of law. The idea that the legislature should be free to deny fundamental rights and freedoms by reversing court judgments should be an utter anathema to any right thinking lawyer. But this is, no doubt, how the power would be used to deal with contentious problems such as prison voting (The UK Parliament has form here: Burmah Oil Company Ltd v Lord Advocate [1965] AC 75). A constitutional bill of rights, either national or international, resolves the tension between parliamentary supremacy and the rule of law in favour of the latter. There can be no half way house. For the UK the ECHR has become an offshore constitutional bill of rights the effect of which is to turn the fundamentals of the British constitution on their head. Parliament is no longer supreme, as it once was. And it is this that the Tories want to reverse. The Canadian model is simply a more palatable way of travelling back along this path. Furthermore, the override is likely to be invoked in the sort of cases where the protection of rights and freedoms is most needed. And then where will we be?

As with the first of Edwards’ points, addressed above, there are two difficulties with this one. In the first place, it is empirically questionable. Although the Canadian legislature has the authority to override the judiciary by reinstating struck-down legislation notwithstanding the existence of a human-rights incompatibility, that power has been used extremely rarely. This demonstrates — as does the superficially surprising potency of “mere” declarations of incompatibility issued by British courts under the Human Rights Act 1998 — that legislators are not necessarily able or willing to walk all over judges merely because it is the politicians, rather than the courts, that technically have the final word. To the contrary, it demonstrates that judicial contributions to debate about human rights may — depending on broader questions of legal, constitutional and political culture — enjoy an influence that outstrips their technical status.

Edwards’ position is also questionable in broader terms. The assertion “no right thinking lawyer” can countenance legislative reversal of court judgments misses the point. If the human-rights scheme in question authorises the legislature to override the judiciary, then the exercise of such authority — although open to challenge on political and moral grounds — raises no grounds for legal objection. Whether a legislature should have such authority is one question: whether it is lawful for a legislature with such authority to exercise it is another matter entirely. Ultimately, Edwards’ position reduces to the assertion that the rule of law requires judges, rather than legislators, to have the final word on rights questions. That is a defensible point of view, but it is not one to which every “right thinking lawyer” does or must subscribe.