May 22, 2008
It is MPs, and not the courts, who must still decide moral issues
Just as the case of Brown versus the Board of Education in 1954 broke the logjam over racial desegregation, so the momentous Roe versus Wade ruling in 1973 enshrined women's right to abortions. It has been in the Supreme Court that the main battles over abortion have since occurred. This explains why there are such fierce Senate debates over nominations to the Supreme Court.
In other countries, such as Ireland and Switzerland, many key social questions have to be settled by a referendum.
In Britain, Parliament has settled these questions, although with the promise of referendums on constitutional issues. In the 1970s and 1980s, repeated attempts were made by anti-abortion groups to tighten the original 1967 law, but the issue was resolved, at least for 18 years, by MPs voting in 1990 on a 24-week limit. The votes on Monday and Tuesday votes are not going to end the controversy, but the Commons is where they should be decided.
The supremacy of Parliament has been qualified by growing judicial activism in interpreting legislation but are there fundamental rights that the judiciary should uphold whatever Parliament decides?
The 1998 Human Rights Act did not allow judges to strike down or annul laws, but it did give the power to issue declarations of incompatibility in cases of conflict, which the Government cannot, and has not, ignored. There have been tensions over immigration and anti-terrorism cases.
The question arises again over the proposed bill of rights or responsibilities, due to be unveiled by the Government next month, and discussed for two hours yesterday by Jack Straw and Michael Wills from the Justice Ministry at the Joint Committee on Human Rights. The high-sounding intention is to give people a clearer idea of what we can expect from the State and from each other. It will be a mixture of declaratory, deliberative and justiciable. The latter is the key point. Will references to economic and social rights lead to a flood of legal cases? Mr Straw emphasised that decisions on resource allocation, that is money, would have to remain with Parliament and, in effect, the executive. There is a fine line between symbolism and substance.
Representative democracy should remain the forum to decide how much is spent on the poor and public services, as well as moral issues such as abortion. At present, the judiciary is cautious. Lord Bingham of Cornhill, the retiring senior law lord, has given warning against “excessive innovation and adventurism by the judges”. Baroness Hale of Richmond, another law lord, told the joint committee that the courts would find the power to strike down legislation “extremely novel, quite alarming and would hesitate to use it”.
Any move towards a codified constitution would give the judges greater power in interpreting what Parliament does. These are shark-infested waters