Human Rights, Serious Crime and Criminal Procedure - College of ...

Evaluating the Strasbourg and British approachesthat is probably too much to expect. An honest human rightsadvocate could surely not deny that there is an element ofindeterminacy in human rights declarations. Indeed, someregard this as a merit: Lord Williams of Mostyn argued "that ageneral description of rights is in many ways much moreappropriate than an attempted description or prescription ofrights which is not capable of being flexible with changingsocial conditions." 127This is a position that raises important questions which havebeen signalled but not discussed fully in this lecture. One ofthose questions concerns the body that should take thesedecisions. Was Lord Williams of Mostyn assuming that thejudiciary would be the arbiters of the flexibility of Conventionrights, or was he assuming that both Parliament and thejudiciary would be able to take advantage of this flexibility?The "creative tension" that the Human Rights Act sets upbetween legislature and judiciary 128 raises serious questionsabout the role of the (unelected) judiciary in this process. 129Almost inevitably it will be the judges of the higher courts whoadjudicate on the limits to which Convention rights can bepushed, even if it is the legislature that originally does thepushing. It will usually, therefore, fall to the judiciary todetermine the directions of the "flexibility" to which LordWilliams referred. No doubt the best way of responding toDouzinas is to argue that there must be open and principledargument about developments of, or restrictions on, humanrights. It is possible to develop criteria, and reasoning procedures,which place limiting structures on judicial interpretationwithout inhibiting all flexibility. This does not dispose ofthe Douzinas critique, but rather accepts the inevitability of theabsence of a guiding meta-principle and suggests that, withother checks and balances in place, it may be possible toensure that human rights declarations are interpreted in someform of principled manner. This is not to represent the contentof fundamental rights as being in a constant state of flux, but torecognise that there are likely to be frequent adjustments andpressures to re-appraise the scope of particular rights. Theseare not essentially legal decisions to be taken by the courts:many of them are as political as the original decision tointroduce the Human Rights Act, bearing out the argument ofMartin Loughlin that one of the Act's effects will be to increasethe "legalization" of political debate and the "politicization" oflegal decision-making. 130 In the third lecture we look moreclosely at some of the arguments typically used by politiciansand judges who purport to be engaged in what they regard asthe necessary "balancing" process.87