I briefly wrote yesterday about John Finnis’ recent lecture on judicial power. Although Finnis examines his topic through a lens that takes in far more than simply questions about human-rights protection, some of his fire is trained upon the European Convention on Human Rights and what it requires, or has been understood to require, courts to do. Indeed, by arguing that
it is not wise to require or permit judges to exercise the essentially non-judicial responsibility of overriding or even of condemning legislation for its not being “necessary”, or for its “disproportionality”, relative to open-ended rights and the needs of a democratic society
Finnis calls into question core aspects of the approach adopted by the Strasbourg regime — and hence by UK courts applying the Human Rights Act — to the task of human-rights adjudication.
Against this background, Philippe Sands’ recent Elson Ethics Lecture, entitled “Britain, Europe and Human Rights — Where Next?”, forms a useful counterpoint to the perspective offered by Finnis. No-one who read the powerful piece — “In Defence of Rights” — that Sands co-wrote with Helena Kennedy in the London Review of Books in 2013 will be surprised by the line taken by Sands in his Eldon Lecture. Nevertheless, it is a valuable contribution that situates the case for a pan-European human-rights system in its historical context, in particular by showing how it has its roots in the pathbreaking work of Sir Hersch Lauterpacht. As Sands explains:
Published in the summer of 1945, exactly seven decades ago, Lauterpacht’s An International Bill of the Rights of Man confronted prevailing orthodoxies and contributed to a transformation of our international legal order. The importance of this visionary, seminal, transformative work can scarcely be overstated. Written over three years, as war raged, it set out a vision of an international legal order that would give legal life to Winston Churchill’s political aspiration for “the enthronement of the rights of man”. Lauterpacht’s new model placed the protection of the individual human being, rather than the nation state, at the centre of the international legal landscape. He hoped, in his words, to end “the omnipotence of the state”. In its place he imagined a new era in which “the individual human being – his welfare and the freedom of his personality in its manifold manifestations – is the ultimate unit of all law”. [Footnotes omitted]
This places in sharp focus questions about the extent to which basic human rights can and should be conceived of as innate and universal as distinct from constructs whose content and extent ought to be shaped purely by domestic law. It also forms part of a wider debate — highlighted by the dropping from the Ministerial Code of any explicit requirement that Ministers obey international law — about the place of the UK within, and the attitude of the UK towards, the international legal order.
Taken together, Finnis’s and Sands’ lectures provide a fascinating insight into the breadth of the debate that is now approaching the political centre-stage concerning the relationships between domestic and international law, the European and domestic judicatures, and judicial and political authority.