Democracy, Human Rights and the Judiciary: The Common Law and the Wider World

Free Public Lecture

Democracy, Human Rights and the Judiciary: The Common Law and the Wider World

Room 920, Level 9
Melbourne Law School

Parkville campus

185 Pelham Street

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Melbourne Law School

For some 70 years, since the pronouncement of the Universal Declaration of Human Rights 1948, western societies with a commitment to the rule of law have been moving closer to giving effect to these rights in legal decisions where the state of the law permits the judge to do so.

In Europe, where many of the human rights abuses that inspired the founding of the UN had taken place, this was reflected in the foundation of the Council of Europe, the European Convention of Human Rights, and the Court charged with interpreting and enforcing the Convention, as well as the Economic Community that has become the European Union. In the last few years, populist politics has turned against international law generally and human rights jurisprudence in particular, and in the UK, a sense that it is contrary to democracy for the laws passed by an elected Parliament should be subject to scrutiny by international tribunals in Luxembourg and Strasbourg. This may partly explain the result of the Brexit referendum.

Recently the principles of the Human Rights Act 1998 and the jurisprudence of the Strasbourg Court have been the subject of criticism by Lord Sumption in his Reith Lectures in particular as regards Article 8 the right to respect for private and family life, home and correspondence.

This lecture argues that criticisms of the Strasbourg living instrument approach to human rights adjudication are misplaced, and that incremental development of these norms is both appropriate and has promoted human dignity particular with respect to laws relating to minorities, whose interests may not have been adequately looked after by the electoral process.

The lecture focus on the cases concerned with penalisation of homosexual acts and some other Article 8 cases to argue that having regard to human rights norms creates a dialogue that enhances rather than undermines democracy.

The lecture will comment on the role of the UK judge in adjudicating on human rights issues and commend the general common law principle that the judge should strive to interpret the law and give effect to human rights treaty obligations of the state where it is possible.

All Free Public Lectures