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

Evaluating the Strasbourg and British approachesallowing the courts to declare legislative provisions unconstitutionaland sometimes giving the courts some lesser (but stillexceptional) power in relating to incompatible legislation.According to this answer, therefore, there is nothing antidemocraticabout a constitutional entrenchment of rights whichhas itself been introduced by democratic processes, since itspedigree is no less democratic than that of the legislationimpugned under the extraordinary powers. 90 Bills of rights areoften examples of a process of (democratic) self-binding, whichplaces above legislative voting practices a set of values whichhave been agreed to be fundamental to the way the governmentof a particular country should be conducted. 91 Indeed, onemight add that certain rights, such as freedom of expression, arethemselves essential elements in a system that wishes todescribe itself as democratic.A second possible answer is that recognition of human rightsenhances democracy by increasing its legitimacy. 92 The force ofthis answer depends on the slippery idea of legitimacy, asplendid-sounding notion that begins to crumble when one askswhose view of the legitimacy of the system counts, and how onemight reliably measure increases or reductions in legitimacy.One way of constructing a reasonably robust answer would beto relate legitimacy to compliance with international or regionalstandards: thus, for example, the United Kingdom is a signatoryto the European Convention on Human Rights, and one of thecriteria for allowing an emergent state to become a member ofthe Council of Europe is its preparedness to sign up to theConvention. But then there may be questions about the extent towhich a particular country fails to respect the declared rights:would legitimacy be recognised even if a particular country wasfrequently found to be in violation of the Convention? No doubtthis must be a question of degree, and it is a question in whichpeople in the United Kingdom have a particular interest, sincethe United Kingdom has been one of the countries mostfrequently found to have violated the Convention. The LordChancellor expressly recognised this when introducing theHuman Rights Bill:Our legal system has been unable to protect people in the 50 cases inwhich the European Court has found a violation of the Conventionby the United Kingdom. That is more than any other country exceptItaly. The trend has been upwards. Over half the violations havebeen found since 1990. 93The upward trend has continued in the years since Lord Irvine'sspeech in 1997: the implementation of the Human Rights Act in