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REVIEW ARTICLE
A Peculiarly British Protection of Human Rights? Alison L. Young*
Conor Gearty, Principles of Human Rights Adjudication, Oxford: Oxford University Press, 2004, 2 62pp, hb 35.00.

INTRODUCTION The Human Rights Act 1998 has generated a plethora of academic literature discussing its desirability, the scope of its provisions and its impact upon both the common law and the constitution. As the commentary develops, the temptation to categorise debate as a battle between two distinct camps becomes irresistible. For Nicol, the conflict is fought between incorporationists and third-wave protagonists.' Incorporationists desire a full constitutional protection of rights, where the judiciary are empowered to overturn statutes that contravene Convention rights. Third-wave protagonists believe that human rights are better protected by a combination of parliamentary and legal protections. Whilst incorporationists regard the Human Rights Act as a step along the way to a full constitutional protection of rights, third-wave protagonists regard the Human Rights Act as the finished product, where the respective roles of Parliament and the courts ensure an ideal protection of human rights. For Laws LJ, the Human Rights Act straddles the boundary between parliamentary and constitutional sovereignty.2 Those preferring a model of parliamentary sovereignty advocate a more restrictive role for the courts, whereas those preferring a model of constitutional sovereignty defend greater judicial activism in the protection of human rights. The battlefield on which these conflicts are fought surrounds the respective roles of sections 3 and 4 of the Human Rights Act.3 Incorporationists and supporters of constitutional sovereignty advocate a wide use of section 3(1): courts should only issue declarations of incompatibility as a measure of last resort. Third-wave protagonists and defenders of parliamentary sovereignty advocate a narrow interpretation of section 3(1) with a correspondingly greater use of declarations of incompatibility under section 4.
*Alison L. Young, Hertford College, Oxford. The author wishes to thank Nick Barber, Alan Bogg, Aileen Kavanagh and the anonymous reviewer for their very helpful comments on previous drafts. Responsibility for errors remains that of the author alone. I D. Nicol, Are Convention Rights a No-Go Zone for Parliament?' [2002] PL 438,438. 2 InternationalTransport Roth GmbH v Secretaryof Statefor the Home Department [2003] QB 728, 759-760,

[2002] EWCA Civ 158, [71]-[72].

3 Section 3(1) requires primary legislation to be read and given effect, so far as possible, in a manner compatible with Convention rights. Where a Convention-compatible interpretation is not possible, section 4 enables the High Court and above to issue a declaration of incompatibility. The Modem
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In turn, the two camps rely upon different interpretations of democracy and the nature of human rights. A paradigmatic incorporationist advocates a rights-based theory of democracy, where a constitutional protection of rights is needed to avoid the tyranny of the majority 4 Human rights, as expressed in the Convention, are non-contestable and fundamental. As such, a judicial protection of human rights is not evidence ofjudicial sovereignty, but of the sovereignty of fundamental principles; principles that are so fundamental that they either override, or found democracy. A paradigmatic third-wave protagonist is wary of the anti-democratic nature of a constitutional protection of rights.5 Human rights are regarded as contestable; it is reasonable to disagree about the scope of a right or its application to a particular set of circumstances. Hence a constitutional protection of rights may merely substitute the tyranny of the majority for the tyranny of the judiciary. Gearty's Principlesof Human Rights Adjudication is firmly ensconced in the thirdwave/parliamentary sovereignty camp. This is unsurprising given Gearty's 6 acknowledged opposition to the legal incorporation of a Bill of Rights (p v). What is more difficult to ascertain, however, is the extent of his support for the Human Rights Act. On the one hand, Gearty argues that his interpretation of its provisions is based upon an account of the Act's 'constitutional, institutional and political context' with the aim of providing practical guidance to the judiciary (pp 3-4). Much of the book is dedicated to analysing decisions of the English courts and the European Court of Human Rights. It can be difficult to ascertain whether Gearty's principles of adjudication are descriptions ofjudicial practice, or normative principles justified, at least in part, by their judicial pedigree. If we are to understand Gearty's principles of adjudication as an account of how the judiciary ought to act, further confusion arises as to whether his account is peculiar to the constitutional, institutional and political context of the British constitution. Gearty would appear to believe that he is establishing stronger normative foundations, arguing that [p]roperly understood, the [Human Rights] Act is a brilliant reconciliation of two apparent opposites, a particularly British solution to a contemporary dilemma which, if it can be proved to work, could be as successfully exported to other jurisdictions as the common law and civil liberties were during previous golden ages. (p 7) Moreover, he devotes an entire chapter of his book to a discussion of the normative foundations of his principles of adjudication; here he remains critical of rights-based models of democracy (pp 8-13), sceptical of the universal nature of human rights (pp 13-21), and supportive of parliamentary supremacy (pp 21-30). Gearty appears, therefore, to have three aims: to give an account of the Human Rights Act that provides clear practical guidelines to the judiciary, which is based upon the foundations of the United Kingdom's constitutional settlement and

4 Nicol, n 1 above, 438. 5 ibid 439. 6 All references in round brackets are to C. Gearty, Principlesof Human Rights Adjudication (Oxford: Oxford University Press, 2004). For evidence of Gearty's criticisms of Bills of Rights, see K. D. Ewing and C. A. Gearty Freedom UnderThatcher(Oxford: Clarendon Press, 1990).

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which is also justified by a proper understanding of democracy and human rights. It will be argued, however, that there are weaknesses in his account. First, Gearty's guidelines are insufficiently precise: even if the guidelines are followed stringently there is the risk that the outcome will not strike the balance between section 3 and section 4 in the desired manner. Secondly, Gearty glosses over potential weaknesses in the normative foundations of his theory. This is not to challenge the validity of his project, but it does suggest that further work is needed to provide a complete'third-wave' account of the Human Rights Act that does not rely upon the peculiar nature of the United Kingdom's constitution. IN PRAISE OF THE HUMAN RIGHTS ACT Gearty's support of the Human Rights Act is based upon a delicate balance of the three principles ofjudicial activism - civil liberties, legality and human dignity and the three aspirations of institutional competence, analytical coherence and proportionate interference. The first two principles of judicial activism are narrowly defined. The principle of civil liberties consists of the right to vote, freedom of expression and freedom of assembly. The principle of legality is not to be confused with, and is much narrower than, the rule of law. It merely 'requires all official action in a democratic state to be positively authorised by law' (p 60). The principle of human dignity, however, is wider and, consequently, harder to define. It extends beyond the traditional protection of human rights to incorporate a'broader, more socialistic version of human dignity' (p 88). Although the courts should be willing to intervene to protect civil liberties, legality and human dignity, it is important to ensure that, in their enthusiasm, they do not transgress the limits of their role. The aspiration of institutional competence aims to guarantee that the judiciary intervene only in those areas for which they are institutionally suited. They should be paddling in the shallow waters of legal principle, as opposed to floundering in the deep waters of public policy (pp 121-122). Consequently, courts should be reluctant to intervene to protect Convention rights when reviewing legislation or executive actions in the field of economic and social policy and more willing to intervene when dealing with central principles of the Convention which do not have any countervailing resource allocation issues (p 142). In order to aid the courts when assessing the scope of their institutional competence, Gearty draws a distinction between judicial restraint and judicial deference (pp 119-120). Judicial restraint derives from considerations of the separation of powers, recognising that there are certain areas that are unsuitable for interven7 tion by the courts. In R (Pretty) v Directorof Public Prosecutions, for example, the court's apparent reluctance to intervene in the controversial issues of euthanasia and assisted suicide is an example ofjudicial restraint. The judges were of the opinion that they were not best-placed to select from the differing opinions which had wide-ranging religious, social and ethical consequences. Judicial deference

7 [2002] 1 AC 800, [2001] UKHL 61.

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stems from the recognition of parliamentary legislative supremacy and the need to ensure that the judiciary do not trespass upon Parliament's legislative role (pp 120-121). It occurs when courts defer to an expressed view of the legislature on a particular issue (pp 142-5). The aspiration of proportionate intrusion requires the courts to be mindful of proposing radical changes to the status quo. Courts need to take a practical assessment, ensuring that their modifications in the name of the protection of Convention rights do not cause more harm than good. In addition, courts should be reluctant to intrude beyond the scope of their proper institutional and constitutional role (pp 148 and 157). The aspiration of analytical coherence requires judgments to be intelligible (pp 176-185), particularly avoiding the traps of according predominance to substance over form (pp 185-191) or the temptations of 'noble lies' and other deceits; for example discovering implied waivers of rights in order to avoid protecting Convention rights where this would give rise to 'inconvenient societal cost' (pp 191-196). The account of the principles ofjudicial activism and the aspirations of institutional competence, analytical coherence and proportionate interference is focused upon legal sources. However, this does not mean that Gearty's principles and aspirations are merely descriptive. Rather, legal sources are cited in order to illustrate that these principles are part of our constitution and that, therefore, his interpretation of the Human Rights Act places it firmly within its historical and cultural context. So, for example, the development of the welfare state and the provision of legal rights to help those traditionally underprivileged in society such as the homeless and homosexuals - are relied upon to illustrate how a broad interpretation of human dignity is part of the constitutional tradition of the United Kingdom (pp 89-90). Gearty also argues that, in addition to providing the best understanding of the Human Rights Act, his principles of human rights adjudication reinforce democracy. Civil liberties are 'best viewed as being concerned with those freedoms that are essential to the maintenance and fostering of our representative system of government' (p 34). The principle of legality reinforces democracy as it 'requiresthat all legal authority come only from the elected branch, in other words the legislature' (p 60). The principle of human dignity is 'complementary to and dependant upon a properly functioning democratic process' (p 88). Consequently, Gearty's interpretation of the Human Rights Act aims to cut through the oft-cited tension between the protection of human rights and democracy. A strong legal protection of human rights supports democracy because the rights protected are precisely those that are required in a representative democracy. Moreover, Gearty argues that his interpretation of the Human Rights Act is immune from traditional criticisms of human rights. This is because it is based upon principles of human rights law as opposed to an assessment of human rights per se. Human rights law recognises that rights conflict. Also, many human rights documents are either unenforceable, or, like the Human Rights Act itself, provide an opportunity for democratic will to override human rights. Consequently, Gearty argues that human rights law can be used to defend human rights without damaging democracy or requiring that one recognise human rights as universal, fundamental principles.
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A Peculiarly British Protection of Human Rights? PRACTICAL GUIDANCE: DEFERENCE, RESTRAINT AND SECTION 3(1) HUMAN RIGHTS ACT 1998

Gearty argues that his principles provide clear guidance to the courts. To achieve this aim, they must enable the court to delineate clearly between the application of section 3(1) and section 4.8 The court intervenes more strongly to protect Convention rights when it utilises section 3(1). To interpret a statute in a manner compatible with a Convention right ensures that the Convention right is legally protected. However, a declaration of incompatibility is a weaker intervention. The Convention right is not legally protected: instead, the courts indicate an incompatibility, but leave the decision to Parliament as to whether a statute should be modified to protect the right in question. Gearty has played a prominent role in the debate surrounding the interpretation of section 3(1). He advocates that the range of possible interpretations for the purposes of section 3(1) stems from section 3(2)(b), which provides that section 3(1) cannot affect the 'validity, continuing operation or enforcement of any incompatible primary legislation.'9 In order to assess whether a particular interpretation does so, courts need to examine '[t]he plain words of the provision under scrutiny, the mischief at which it is aimed, the necessity of particular forms of interpretation to the achievement of its goals, and Parliament's intent in acting as it did' (p 53). An interpretation which defeats the plain words of the provision, thwarts the mischief at which the statute is aimed, makes it impossible for the statute to achieve its goals, or damages Parliament's intentions will affect the statute's validity, continuing operation or enforcement. Consequently, it is not a possible interpretation for the purposes of section 3(1) and courts may only issue a declaration of incompatibility." Gearty states that this interpretation of section 3(1) is very close to that advocated by Lord Nicholls in In re S. Here, Lord Nicholls argued that Convention-compatible interpretations were not possible where the interpretation 'departs substantially from a fundamental feature of an Act of Parliament', 2 especially where the departure 'has important practical repercussions which the court is not equipped to evaluate" 3 Legal developments following the publication of Principles of Human Rights Adjudication have already cast doubt on this analysis. In Ghaidan v GodinMendoza,4 the House of Lords agreed that Convention-compatible interpreta8 See n 3 above. 9 For a further discussion of this limit of Convention-compatible interpretations, see C. Gearty, 'Reconciling Parliamentary Democracy and Human Rights' (2002) 11 LQR 248; cfG. Phillipson, '(Mis)-reading Section 3 of the Human Rights Act' (2003) 119 LQR 183 and Gearty's response 'Revisiting Section 3(1) of the Human Rights Act' (2003) 119 LQR 551. 10 Kavanagh criticises the use of a distinction between interpretation and legislation, arguing instead for the need to distinguish between judicial and legislative law-making. Section 3 should be reserved for legitimate exercises ofjudicial law-making, with section 4 declarations being used when a Convention-compatible interpretation requires an exercise of law-making that is best left to the legislator. A. Kavanagh, 'The Elusive Divide Between Interpretation and Legislation Under the Human Rights Act 1998' (2004) 24 OJLS 259. 11 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, [2002] UKHL 10. 12 ibid313, [40], quoted in Gearty, at 54 13 ibid. 14 [2004] 3 WLR 113, [2004] UKHL 30.

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Alison L. Young tions are impossible where they contradict a fundamental feature of the legislation,15 or require the courts to take decisions for which they are not equipped, because of their 'exceedingly wide ramifications' ;16 'important practical repercussions'; 17 or treatment of 'issues of social policy which ought to be left to Parliament and not decided by judges'.' While Lord Nicholls' guidelines in In re S were used in support, the court in Ghaidanwas also concerned to advocate sparing use of section 4 declarations of incompatibility. Consequently, this decision has been 1 interpreted as a shift towards a broader interpretation of section 3 (1).9 This sits uneasily with Gearty's desire to avoid too great a use of section 3(1) (pp 53-54 and pp 141-145).2o Perhaps one lesson to draw from this is that Gearty's guidelines are more malleable than they might appear. Concern over the clarity of Gearty's guidelines deepens when we examine the interplay between his interpretation of section 3(1), the three principles ofjudicial activism and the aspiration of institutional competence. It will be recalled that the aspiration of institutional competence is composed of the principles of judicial restraint and judicial deference. Courts exercise judicial restraint when interpreting the scope of a Convention right. Courts exercise judicial deference when ascertaining whether it is possible to read and give effect to the statute in a manner compatible with the Convention right. Courts maintain their institutional competence by not deciding matters of policy and by showing deference to Parliament's expressed views (pp 142-143). The three principles of judicial activism described above influence the scope of judicial restraint and judicial deference. Courts should be less willing to exercise judicial restraint when adjudicating on civil liberties and human dignity, or protecting the principle of legality. The judiciary should also be less deferential when 21 dealing with civil liberties, legality and human dignity. An illustration of how these principles interrelate can be gleaned from Gearty's examination of case law. For example, he criticises the judiciary in R (Pearson & Martinez) v Home Secretary22 as having shown inappropriate restraint and deference. The denial of the right to vote for convicted felons, found in section 3(1) Representation of the People Act 1983, was a challenge to a core component of civil liberties. Therefore, the courts should have been more active, as opposed to exercising restraint, and ought to have concluded that the statute breached Article 3 ECHR (p 58). The judiciary also demonstrated great deference to Parliament when discussing the possibility of providing a Convention-compatible interpre-

ibid 124, [33] per Lord Nicholls, 137, [67] per Lord Millett; 150, [115] per Lord Rodger. ibid 124, [34] per Lord Nicholls. ibid 150, [115] per Lord Rodger and 129, [49] per Lord Steyn. ibid 137, [65] per Lord Millett. D. Nicol,'Statutory Interpretation and Human Rights AfterAnderson [2004] PL 274. Cf A. Kavanagh,'Statutory Interpretation and Human Rights After Anderson: A More Contextual Approach' [2004] PL 537. 20 See also Gearty, n 9 above. 21 For a discussion of deference and its role under the Human Rights Act 1998, see Lord Steyn,'Deference: a Tangled Story' [2005] PL 346; J. Jowell, 'Judicial Deference, Servility, Civility or Institutional Capacity' [2003] PL 592; R. Clayton, Judicial Deference and "Democratic Dialogue": The Legitimacy ofJudicial Intervention under the Human Rights Act 1998' [2004] PL 33; R. Edwards, 'Judicial deference under the Human Rights Act 1998' (2002) 65 MLR 859. 22 [2001] EWHC 239 (Admin). 15 16 17 18 19

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A Peculiarly British Protection of Human Rights? tation. Gearty argues that such deference was 'misplaced' because the case concerned a prime component of civil liberties (p 59). The inherent danger with this approach is that it may blur the distinction that Gearty wishes to maintain between judicial restraint and judicial deference. This then poses the risk that the courts do not provide an adequate protection of human rights: they might exercise both restraint and deference when a consideration of the principles ofjudicial activism would support judicial restraint, but need not require judicial deference. For example, if faced with a statute that appeared to limit freedom of expression 2 to protect national security, as occurred for example in R v Shayler, 3 Gearty would advocate judicial restraint (pp 57-8). The judiciary is not suited to assessing issues of national security and, consequently, the court should interpret the right to freedom of expression narrowly. Gearty would also advocate judicial deference here. Consequently, if the statute contradicts the now narrowly-defined Convention right, the courts should nevertheless defer to the opinion of Parliament and be less inclined to construe the statute in a manner compatible with the Convention right. The same argument is used to defer twice over: once when defining the right and again when the courts try to read and give effect to the statute in a manner compatible with the Convention right. The question arises whether Gearty's constitutional theory requires courts to use the same factors to exercise both judicial restraint and judicial deference. If the court has already ascertained that it should interpret a Convention right narrowly, in order to ensure that it does not transgress the bounds of its institutional competence, is there a need for it to exercise deference as well? The courts will still need to ensure that any possible Convention-compatible interpretation does not transgress the boundaries of their institutional competence. However, it is arguable that these boundaries will not be crossed by a court that has already exercised judicial restraint. The question turns upon the meaning of 'deference' which appears to indicate that the limits imposed upon possible interpretations found in section 3(2)(b) can be applied more or less stringently. It is at least arguable that greater stringency is not required where courts have already exercised judicial restraint, unless the courts are faced with a range of possible Convention-compatible interpretations. When so faced, there is scope for judicial deference, which would require the courts to respect parliamentary legislative supremacy and choose the Convention-compatible interpretation that was closest to the will of Parliament expressed in the statute, or, if it were felt that even such a choice was beyond the scope of the competence of the court, to make a declaration of incompatibility. To exercise judicial deference in other circumstances may mean that courts do not protect Convention rights when, according to Gearty's theory, they have the institutional competence to do so, having already taken institutional competence into account when defining the Convention right. The confusion arises because of the thin nature of the distinction between judicial restraint and judicial deference. Gearty is right to recognise that the two are distinct. However, he fails fully to appreciate that the two apply at different stages of the application of section 3(1). Judicial restraint applies at the rights stage, when

23 [2002] UKHL 11, [2003] 1 AC 247.

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Alison L. Young courts determine the scope of the Convention right in question. It is particularly noticeable when applying the non-absolute rights found in Articles 8-11 of the Convention. Judicial deference applies at the interpretation stage, when courts are assessing whether the statute can be read in a manner compatible with the Convention right once defined. Gearty argues that courts should exercise judicial deference in order to respect the will of Parliament. However, his interpretation of section 3(2)(b) also ensures that courts respect the will of Parliament by preventing Convention-compatible interpretations that affect the statute's validity, continuing operation or enforcement. When faced with a Convention right that requires a balancing of complex policy issues, the court is urged to exercise judicial restraint, deferring to the will of Parliament when interpreting the scope of the right. However, if the same facts encourage the court to exercise judicial deference, deferring to the will of Parliament when seeking a Convention-compatible interpretation, a logical mistake is made. Courts use the same factors to defer twice over, meaning that courts applying Gearty's principles of adjudication may 24 provide less protection to Convention rights than he would advocate.

'HUMAN RIGHTS LAW' v 'HUMAN RIGHTS SIMPLICITER' So far, this review has examined whether Gearty's account provides practical guidance to the courts. Gearty also argues that his principles of human rights adjudication place the Human Rights Act in its proper constitutional setting and ensure that we have a protection of human rights that is justified by our understanding of human rights and our conception of democracy. His principles of adjudication, therefore, are also built upon theoretical foundations. The aim of this and the next section of the review is to assess the strength of these foundations, looking first at Gearty's account of human rights before examining his account of democracy. It has already been remarked that Gearty was originally an opponent of Human Rights Bills. He remains critical of human rights themselves, appearing to accept the following criticisms: that human rights theory is guilty of abstracting general principles of human rights from particular situations; 25 that human rights gives rise to egoism and the promotion of the self;2 6 that human rights theories are based upon a false belief in the existence of human rights as universal truths27 and that human rights theories fail to provide sufficient protection to public goods. 28 He argues, however, that these criticisms are only criticisms of 'human rights simpliciter' and not of 'human rights law'. Consequently, he can remain sceptical of human rights whilst advocating the form of Bill of Rights promoted by the Human Rights Act. Moreover, he is able to sing the praises of
24 See A. L. Young,'Ghaidanv Godin-Mendoza: Avoiding the Deference Trap' [2005] PL 22. 25 SeeJ. Bentham, Anarchical Fallacies;being an Examination of the Declaration of Rights Issued during the French Revolution in J. Waldron (ed), 'Nonsense upon Stilts' Bentham, Burke and Marx on the Rights of Man (London: Methuen 1987). 26 See K. Marx, On theJewish Question in ibid. 27 See R. Rorty, 'Human Rights, Rationality and Sentimentality' in S. Shute and S. Hurley (ed), On Human Rights (NewYork: Basic Books, 1993). 28 SeeJ. Raz,'Rights-based Moralities' inJ.Waldron (ed), Theories of Rights (Oxford: Oxford University Press, 1984).

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the Human Rights Act precisely because it is a form of human rights law. How successfully does Gearty tread this fine line? Gearty draws three distinctions between human rights simpliciter and human rights law. First, human rights simpliciter derives the need for a protection of human rights from an analysis of 'pure reason, natural law, divine origin or universal custom' (p 19). Human rights should be protected because to do otherwise is to act contrary to reason, natural law, religion or our universal custom. Human rights law, however, does not advocate the protection of human rights because it is the right thing to do. Nor does human rights law provide a justification for the rights that it protects. Instead, human rights law merely accepts a list of fundamental rights as a social fact and ensures that these rights receive legal protection. Secondly, human rights simpliciter advocates the existence of fundamental rights. If we protect the right to life it is because there is such a thing as the 'right to life'. Human rights law, however, classifies human rights as goals and aims to be achieved by society. If human rights law protects the right to life it does so because this is an aim of the society that adopted the right to life as a social fact and not because an entity exists called 'the right to life' that deserves protection. Thirdly, human rights simpliciter advocates an absolute protection of human rights. As fundamental rights, human rights should override democracy. We should protect the right to life even if there is a democratic will to deny the protection of the right in certain circumstances, eg if the majority of the population voted to legalise ceremonial human sacrifice. Human rights law, however, recognises that human rights may not be absolute. It provides for a qualified protection of human rights, where human rights are balanced with other rights and interests according to the wishes of the majority (p 20). It is right that human rights law is immune from the criticism that human rights theories are based upon a false belief in universal or fundamental truths. Human rights law also seems to escape the criticism of abstracting general principles of human rights from particular situations: human rights law makes no claim to universality. It merely requires a protection of a set of rights that are accepted as worthy of promotion in a particular society. Moreover, human rights law protects rights in a non-absolute manner, allowing human rights to be balanced against and overridden by other rights and interests; it makes no claim to promote absolute rights derived from an analysis of a particular situation. The other two criticisms of human rights require closer examination. Three arguments have been made in support of the tendency of human rights to promote selfishness and egoism: it is claimed that the possession of rights encourages people to exercise them in a selfish manner, regardless of the way in which these rights are protected; that human rights are protected in an adversarial and selfish manner; and that human rights exaggerate the individual to such an extent that they lead to an inevitable conflict between self-interest and social life.29 Rather than being immune from such criticisms, it may be argued that human rights law exacerbates them. Human rights simpliciter does not dictate the type of protection to be granted to the human rights it requires to be protected. Human rights law provides an adversar-

29 J. Waldron, "'Nonsense Upon Stilts" - A Reply' in Waldron, n 25 above.

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ial protection of rights. It is not merely that individuals are encouraged to protect their rights in an adversarial manner; human rights law as personified by the Human Rights Act requires individuals to protect their rights in an adversarial manner. If we accept that such adversarial protections promote egoism and selfishness then human rights law is guilty of these sins. A possible counter-argument stems from the third characteristic of human rights law: that human rights law provides a non-absolute protection of human rights, recognising that human rights conflict with other rights and interests. If I have a human right that is absolutely protected, I may be encouraged to protect this absolutely, selfishly promoting my rights over and above the rights of others. However, if I have a human right that is protected in a non-absolute manner that is balanced against other rights and interests, I may be less willing to protect my human right in a selfish manner and more willing to take into account the rights of others given my awareness that the rights of others limit the scope of my human right. However, it may equally be argued that human rights law's nonabsolute protection of rights is more rather than less likely to promote selfishness and egoism. If I am aware that my human right of freedom of expression is limited by my neighbour's human right of privacy, I may be encouraged to protect my right in a more aggressive manner. After all, if I do not protect my right, I may find that my neighbour protects his right to privacy such as to restrict my right to freedom of expression. In an adversarial system where rights are protected in a non-absolute manner, it may be argued that the very content of the right is open to question: who wins depends not upon the nature of the right but upon the balance of our arguments for protecting freedom of expression and privacy in our particular situation. When it comes to the argument that human rights simpliciter provides insuffi32 3 3 cient protection of public goods, Gearty draws upon Raz ,Taylor ' and Sandel. Gearty's reliance on Raz is best understood as a reference to Raz's criticisms of rights-based theories of morality. Raz judges theories of morality according to their ability to provide benefits to those governed by them - ie society and the individuals who constitute that society. One such benefit is collective goods: public goods that are beneficial to society but which are not subject to the voluntary control of anyone other than the potential beneficiary, for example the collective good of living in a tolerant or an educated society. Raz argues that rights-based theories of morality are less likely to promote collective goods. For example, the interest of all to live in an educated and tolerant society is not likely to be sufficient to place any one individual under a duty to provide education, or to ensure that we live in an educated and tolerant society. Rights-based theories of morality may therefore fail to provide all of the benefits that we would demand of moral theory3 3

30 Raz, n 28 above and Ethics in the Public Domain. Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994) 31 C. Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, Mass: Harvard University Press, 1989). 32 M. Sandel, Liberalism and the Limits ofJustice (Cambridge: Cambridge University Press, 2nd ed, 1998). 33 Raz, n 28 above.

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A Peculiarly British Protection of Human Rights? However, there is no incompatibility between an acceptance of Raz's criticism of rights-based theories of morality and an adherence to either human rights simpliciter or human rights law. Raz is criticising rights-based theories of morality as opposed to human rights themselves. An adherence to human rights simpliciter need not require adherence to a rights-based theory of morality. We may protect human rights as part of a broader theory of morality that provides an adequate protection of collective goods. Of course, the same goes for human rights law, promotion of which need not require an adherence to a rights-based theory of morality. Human rights law accepts those rights it promotes as a34social fact. It makes no claim for the adoption of a particular theory of morality. A second argument in support of the claim that human rights fails to ensure an adequate protection of public goods is based upon an analysis of the content of human rights. Gearty refers to the communitarian theories of Sandel and Taylor, whose criticisms of human rights focus on the liberal political theories that are typically used to ground them. Liberal theories of rights prioritise rights based upon the values of liberty, personal security and privacy. However, this focus makes it difficult to protect social goods and values. The criticism relies upon the same argument as that made by Raz, but its focus is different. Raz argues that rights-based theories of morality fail to provide an adequate protection of public goods, and that the provision of public goods is one manner in which we can assess the success of a theory of morality. Communitarian theorists like Taylor and Sandel argue that public goods are valuable and hence that human rights theories that do not promote public goods are not as viable as those theories that do. This is not to criticise human rights as such, but the content of the rights promoted by human rights theories. The division between human rights simpliciter and human rights law does little to answer this criticism. All we know about the content of human rights law is that it accepts the rights that it promotes as a social fact. If it is a social fact that the rights promoted by a particular legal protection of rights are those based predominantly upon the individual values of personal liberty, security and privacy then human rights law is also vulnerable to the communitarian critique relied upon by Gearty However, it can be argued that the criticism does not bite so sharply against human rights law which is only part of the law in a particular society. It may be that other laws are used to protect social goods, or that non-legal mechanisms are used. Moreover, many human rights provisions are used to promote social goods - for example article 8 ECHR protects marriage and family life. The communitarian critique can also be answered by incorporating social goods and rights into the content of human rights law - as advocated by Gearty himself when discussing the content of the principle of human dignity (pp 88-90).35 A further communitarian criticism of human rights is that they damage collective goods because the focus upon the individual in human rights theories means that public goods are overwhelmed. 36 The argument was made above that the

34 Waldron, n 29 above.

35 See also M. Sandel Democracy's Discontent:America in Search ofa Public Philosophy (Cambridge: Harvard University Press, 1996). 36 Waldron, n 29 above.

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right to family life is an example of a right that aims to promote a public good that of living in a family unit. Those living in a family unit share a relationship that does not depend upon the delineation of individual rights and which is of value to the family as a whole. Protection of the right to family life may mean that the members of the family unit apply their individual rights, overwhelming the right to family life by destroying the value of the communal unit. If this criticism is accepted,' then it is exacerbated when applied to human rights law. Human rights law differs from human rights simpliciter because it provides the means by which to enforce human rights. The ability to enforce rights against others may be more likely to encourage individuals to think in terms of the personal advantages that they gain from a relationship as opposed to viewing the relationship as a communal good shared with others. Hence it may encourage the protection of individual rights to the detriment of the public good. The final criticism of human rights cited by Gearty is that provided by Rorty. Rorty is another critic of the universal nature of human rights, arguing that the quest to discover and understand fundamental human rights and the inherent nature of human beings has done nothing to further our understanding of human rights, leaving him with the suspicion that fundamental human rights do not exist. Moreover, our quest to discover the nature of fundamental human rights has not ensured a good protection of rights in society. Rorty argues that this has encouraged societies to distinguish between those deserving of human rights and 'others' who do not merit such protection - eg ethnic minorities or illegal immigrants. This leads him to the conclusion that human rights are best protected through education: encouraging individuals to become emotionally attached to those whose human rights are abused.3 8 Because Rorty is criticising the manner in which human rights are protected, human rights law does not escape. Moreover, there is no necessary connection between human rights law and an education designed to encourage emotional support for the victims of human rights abuses. Rorty's assessment of human rights stems essentially from a practical point of view. His criticism of human rights is that it does not achieve the goods and values that society purports to achieve, and there is no guarantee that human rights law is able to achieve these values. Indeed, Gearty himself is critical of the way in which both the courts and Parliament have protected rights through human rights law (pp 212-214).39

DEMOCRACY, CIVIL LIBERTIES AND THE SEPARATION OF POWERS So far we have recognised two weaknesses in Gearty's principles of human rights adjudication: an incomplete distinction between judicial restraint and judicial
37 It is questionable whether this criticism is valid, given that liberal theorists have also recognised the importance of communal goods, in particular the communal good of living in a tolerant and pluralistic society, seeJ. Rawls, PoliticalLiberalism (NewYork: Columbia University Press, 1996). 38 Rorty, n 27 above. 39 See also C. Gearty 'Civil Liberties and Human Rights' in N. Bamforth and P. Leyland PublicLaw in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003), 382-389.

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A Peculiarly British Protection of Human Rights? deference and a failure to discuss criticisms of human rights that focus upon the method by which rights are protected. Gearty also relies upon democracy to support his theory of human rights adjudication. Constitutional protections of human rights are criticised as anti-democratic as they protect human rights over and above the wishes of the electorate. The Human Rights Act is arguably immune from this criticism: the judiciary may not overturn legislation but only declare it incompatible. However, this response overlooks the role of the judiciary when applying section 3(1). A strained interpretation of legislation may also be accused of anti-democratic tendencies, protecting human rights even when to do so is contrary to the wording of legislation. To avoid the criticism of being anti-democratic, a theory of human rights adjudication needs to provide guidelines to the judiciary to ensure that the way in which they read and give effect to legislation to protect Convention rights reinforces as opposed to weakens democracy. Gearty's theory aims to bridge this gap. The judiciary is encouraged to exercise its interpretative powers to protect rights when protecting civil liberties, legality and human dignity, all of which are justified as they promote democracy. The judiciary, however, needs to ensure that it does not usurp its proper judicial role: particularly given that it is not a democratically accountable institution. It must exercise restraint and deference, ensuring that it does not damage democracy by performing a legislative function. This is reinforced by a court's need to ensure that it makes decisions that are analytically coherent and that only interfere to protect rights in a proportionate manner. Consequently, Gearty provides a theory of adjudication that promotes rather than damages democracy. However, the question arises as to whether democracy is also vulnerable to the same criticisms that Gearty levels against human rights: is democracy to be supported because it is a foundational principle, a general principle abstracted from the particular situation of the United Kingdom? If so, is it feasible to reject a foundational basis for human rights whilst at the same time promoting a foundational basis for democracy? Gearty derives support for the principle of democracy from the theories that he uses to criticise human rights. He supports a concept of representative democracy which he sees as common to the theories of Bentham, Marx and communitarians. However, although 'democracy' may be promoted by all of these different theorists, they all promote different conceptions of democracy. Bentham is best understood as advocating protective democracy, 40 Marx is an advocate of direct democracy 41 and Communitarian theorists advocate democracy that focuses on participation in the political community.42 All support democracy, but their conceptions of democracy would advocate different balances between human rights and democracy. The extent of the right to vote needed to support the conception of democracy advocated by Bentham or Marx, for example, differs from that advocated by Gearty. It would appear, therefore, that our conceptions of democracy can be just as contestible as our different conceptions of human rights - sug-

40 D. Held, Models of Democracy (Cambridge: Polity Press, 2"" ed, 1996) 88-100. 41 ibid 162-163. 42 ibid 263-273.

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gesting that we can criticise the fundamental nature of democracy in the same manner that Gearty criticises human rights simpliciter. To avoid this criticism, Gearty might defend his conception of democracy in the same manner as Rorty, who advocates democracy if it provides for the form of government best suited to enabling society to achieve the values it wishes to promote. However, if this is the case, Gearty needs to provide further explanation both of his conception of democracy and also of why this is best able to achieve the values desired by society. This case may be hard to meet, especially given that Gearty is critical of the recent performances of democratic societies to protect rights post September 1 1 th (pp 212-4).' 3 Gearty might also rely on Waldron's defence of the right of participation. Waldron does not defend the right of participation because of its fundamental or morally prior nature. Instead he provides a rights-based justification for the right of participation, relying on an acceptance that individuals are rational, autonomous beings who deserve rights, while acknowledging that rights are contestable. As it is reasonable for individuals to disagree about rights, it is rational for those holding rights to participate in debate to determine the scope of the rights that they possess. 44 There is no claim that the right to participation is an objective fundamental right. Nor is it a general principle abstracted from particular situations. Moreover, its existence depends upon an acceptance that human rights are contestable which is compatible with Gearty's argument that human rights conflict and should be protected in a non-absolute manner, allowing for the wishes of the electorate to perform this often delicate balancing exercise. However, if Gearty were to accept Waldron's defence of the right of participation, then problems would arise for his account of the separation of powers between Parliament and the judiciary. Gearty assigns judicial and parliamentary roles according to the relative institutional competences of the judiciary and Parliament. Institutional factors dictate when it is rational to argue that Parliament or the courts is the best-placed institution to reach the correct decision (pp 120, 122, 142 and 212-213). However, this separation of powers between Parliament and the courts is difficult to reconcile with an acceptance of the contestable nature of human rights. Institutional arguments justify allocation of power by providing a reason why a particular institution is more or less likely to reach the correct decision. However, if the nature of the correct decision is contestable, it is difficult to ascertain the institution that is more likely to reach the correct decision precisely because we are uncertain as to the nature of the correct decision itself. Arguments surrounding institutional competences may then collapse into arguments about the correct decision. For example, it may be argued that the correct balance between freedom of expression and national security is best left to Parliament as it concerns matters of policy. But we cannot justify that allocation of power on the basis that Parliament is more able to find the right answer. If it is reasonable to disagree about the scope of the rights to freedom of expression and national secur-

43 See also Gearty, n 39 above. 44 J.Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 232-254. Gearty appears to at least tacitly accept Waldron's arguments in, 'Democracy and Human Rights in the European Court of Human Rights: A Critical Appraisal' (2000) 51 NILQ 381, 388-390.

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A Peculiarly British Protection of Human Rights? ity, then it is equally reasonable to disagree about whether Parliament or the courts are better able to reach the right answer. Is Parliament more suited to deciding this matter because it has access to issues of national security that are not available to the courts, or are the courts better suited to providing this balance because they are more likely to ensure that freedom of expression is adequately protected? Determining an institution's capacity to reach the right answer seems to depend 45 upon the nature of the correct answer.

CONCLUSION The Human Rights Act has redefined the human rights debate. Protagonists no longer debate the desirability of constitutional protections of rights, turning instead to argument about the interpretation of the scope of the Act's provisions. Those who were traditionally opposed to the incorporation of human rights have had to square up to the reality of the Human Rights Act, providing an interpretation of its provisions that respects criticisms of human rights protections. A delicate balance is needed to ensure that acceptance of criticisms of human rights does not challenge the existence of the Act or render its provisions a mere codification ofjudicial practice prior to its enactment. Gearty aims to provide this delicate balance by drawing a distinction between human rights simpliciter and human rights law and providing a democratic justification for human rights protections. However, the distinction between human rights simpliciter and human rights law fails to account for criticisms of human rights that focus upon the way in which rights are protected, while his reconciliation of rights and democracy rests upon pragmatic justifications. Firmer foundations are needed for Gearty's interpretation of the Human Rights Act, both to ensure the clarity of its application and the adequacy of its protection of human rights.

45 Waldron, ibid 243-249.

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