So many writers and commentators believe that the common law was a wonderful thing in the past – fair, just and fine – and so it would be a great thing to return to, dispensing with human rights in order to get there. I show this idea to be based on a fundamental misreading of what the common law was really about which was in truth much nastier than its current apologists would have you believe.
There is a belief afoot that for all their faults of yesteryear the judges of today are different, special and worth trusting with human rights. If they are improved it is human rights that have largely made them better. Without the incentive to good behaviour that the Human Rights Act delivers, they might well – and quickly – return to type.
Human rights are not some God-given system of good behaviour that landed on our laps after the Second World War and have resolutely stayed there. Like all human constructs they are a result of dispute, their victories always contingent. If we view them as inevitable they risk being lost for lack of defenders.
The Human Rights Act is believed by its many detractors to be above parliamentary scrutiny, to be a law superior to all others. In fact the measure goes out of its way to be exactly the opposite, confirming rather than subverting parliamentary sovereignty.
The Human Rights Act delivers no new, American-style set of powers to British judges. They have the legislature to thank for what limited ability at interpretation to do moral good they now have – and what parliament has given parliament can easily take away.
The Human Rights Act is emphatic that British judges do not have to follow judgments of the European Court of Human Rights in Strasbourg, despite which everyone (even some of the judges) seem to have persuaded themselves the Act demands the opposite.
Counter to every intuition though it might be, the Human Rights Act does a decent job of not so much protecting the villains as entrenching the rights of the powerful. Now this may be something we don’t like or want but any truthful appraisal of the Act has to take it into account.