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

Evaluating the Strasbourg and British approachesthat a majority of people would be better off if it were notapplied in a given situation. A basic right is therefore essentiallya counter-majoritarian or anti-utilitarian concept. Why shouldanyone agree with this point? Some might answer that in thiscontext it is inherent in the very idea of a fundamental right.This depends largely on the connotations of the adjective"fundamental" or "basic": these terms are being used here tosignify a right that is not merely the correlative of some dutyimposingrule, but rather has a deeper significance which mightbe described in some countries (such as the United States orSouth Africa) as a constitutional right, or (as in the EuropeanConvention) as a "human right", or (as in both the EuropeanConvention and the European Union's Charter) as a "fundamentalright". If a right of this kind is not a claim to beprotected against the wishes (or interests) of a majority, thenwhat is it? If it is something that can simply be taken awaywhen a majority of people decide that this would benefit themmore, is it a basic right? Surely if there is agreement thatsomething should be recognised as a fundamental right, thismust entail that it should be assigned some kind of preferenceor priority when political and legal policies are being determined;otherwise fundamental rights are not what they appearto be, and the label indicates merely an aspiration rather than anactuality. 89If human rights are by their nature counter-majoritarian, doesthis mean that they are essentially anti-democratic? In one sensethe answer must be that they are: insofar as they are intendedto, and do, operate as a restraint on legislation passed by normaldemocratic procedures, they tend to weaken the authority of thenormal legislative processes and procedures established in aparticular country. They may be thought to do so for a largelyanti-democratic reason, too, insofar as they tend to protectcertain interests of individuals or minorities which might otherwisebe overwhelmed by a majority vote. This may be particularlyappropriate to criminal procedure, where the interestsin question are those of suspected (or sometimes convicted)criminals, for which there is unlikely to be a strong constituencyof political support.There are three general answers, and a fourth specific answer,to anyone who might argue that human rights underminedemocratic processes. The first is that most domestic humanrights bills and constitutions are themselves the product of thedemocratic process: the legislatures in Britain, Canada, Ireland,South Africa and many other countries have voted to introducesome kind of "rights" declaration that enables ordinary legislationto be treated in a different way by the courts, sometimes71