Okay, I welcome you all to our second lecture of the Center for Globalization and Governance
in this formal term. You may have noticed that tonight there's two lectures going on
at the same time. Richard Bellamy already thought that that was a new method here, that's
practice and handwork, that all our lectures are run at the same time and that's why we're
taking them. But it's not exactly like that. Our colleague Ali Hochschild is actually
someone who was supposed to speak last year and then she couldn't make it, so she's unfortunately
at the same time otherwise we could have enjoyed her lecture and our colleagues who were attending
they would have come here. But nonetheless, our house is full and I welcome everybody to the
lecture by Richard Bellamy who's going to speak on the Democratic legitimacy of international
human rights conventions and you had added the Hearst case as an example. Let me, however,
take a few minutes to introduce Richard. We have been colleagues for quite a long time. I can't
remember when we met for the first time. I think Richard Bellamy is currently a professor of political
science at the University of New College London where he's teaching since 2005. He took over as
head of the Institute of Public Policy and is now the director of the European Institute. Richard
is a fellow of the Royal Society of Arts and also a member of the Academy of the Social Sciences
United Kingdom. He has been teaching at the universities of Cambridge, Edinburgh, East Anglia,
Reading and Essex and has been educated at Cambridge and the European University Institute
at Florence. Also many of you have enjoyed your time in Reykjavik at the ECPR, European Consortium
of Political Research conference this year. Now Richard has been the academic director of the
entire ECPR from 2002 to 2006. He is currently the editor of the critical review of political and
social philosophy, CRIST, and he's also an associate editor of the German that some of you know which
is European political science review which we are actually doing together from Florence and I want
to mention in particular Richard has numerous publications in the area of political theory,
normative theory, European integration theory, especially they work on citizenship and democracy
and constitutionalism and Richard's most recent book has been published by Cambridge University
Press in 2007. It's called political constitutionalism and it actually did win the Spitz prize even though
it had numerous other nominations and there's also another additional short book by Oxford from 2008
which I can recommend to everybody and it's citizenship, a very short introduction.
But now with no further ado I would like to invite Richard to take the floor and speak to the
democratic legitimacy of human rights conventions and how much do you think you'll take about?
It's about 30 to 40 minutes, okay thank you very much. Well thank you very much Paul for inviting me
here it's a great honor to be here in Hamburg. So this is the menu for tonight as of where
so I'm going to start by outlining a recent case head before the European Court of Human Rights
number two because Mr Hirst has brought two cases against the United Kingdom, her own blog
has been upheld and introduced a general issue that I'm going to talk about which is what I think
is an empirical admiral that is possible which is why should democratic states such as Germany and
the UK which have robust legal and political mechanisms for protecting rights, what motivates
them, what legitimizes them, signing up and abiding by international conventions of human rights and
their supportive mechanisms such as courts and then I'll I'm going to give my own sort of view
based on my theory of political constitutionism I'll look at the implications of that for judicial
review I'll then suggest there'll be a few comments about global democracy and its absence
I'll then look at international democracy and using that model I'll suggest that there is a way
of understanding these conventions which does render them democratically legitimate which I'll
then apply to the first case so that's the the general outline. So let me start with the house
case which has been much discussed in the UK but I should imagine is not that familiar
familiar at all to most people here so according to section three of the representation of the
People's Act of 1983 prisoners do not have the right to vote they haven't had the right to vote
ever in the UK but this is the last act which did make that clear there are certain
categories of prisoners who do retain the vote the right to vote and those are those who are held
pending the case and those who may have committed a crime which did not merit a penal sentence
did not merit from going to prison but as a result of them not for example paying the fine
they end up in prison but apart from those all prisoners are deprived of the right to vote
now Mr Hirst he was imprisoned for for manslaughter in February 1918
he had killed his landlady with an axe
and he but he pleaded diminished responsibility for for for doing that but he had some mental
problems as a result he wasn't it wasn't murder its manslaughter low essential but he was to be
held indefinitely so one of the interesting facts about this case is that when he made his appeal
to the court the tariff the period of the actual sentence for the crime had already
passed so he he was being held simply because he was regarded as still being a danger to the public
anyway he he took this uh to through through the British courts and it went up to a division
court that's not to the very end but almost to the very end and there in 2001 his application
was rejected uh by this stage Britain had passed the human rights act which incorporates
the European convention on human rights into British law so he he made his appeal
based on the human rights that the relevant features of the human rights act which are
identical to the European convention on human rights uh his application was rejected it was
said that this was not covered by it and he was his his application to appeal this and go higher
was also rejected he took his case then to the European court of of human rights where it was
upheld unanimously in 2003 as having a case um the argument was that under uh appendix one of the
European convention of human rights there isn't a right to vote in the convention but in appendix
one to the convention there is an obligation on the part of signatory states to hold
regular and fair elections as part of an ongoing democratic process and the court argued that this
implied a right to vote and that this right couldn't be taken away uh simply because you
had committed a crime uh there had to be some a there had to be some particular reason other
than having just committed the crime before the UK appealed arguing that uh this went contrary to
what the convention actually stated that because there was no right to vote in the convention
there are many countries in signatory states that do
deny prisoners the right to vote there's a kind of continuum really from there are various
categories who lose it automatically uh to i suppose extreme case amongst mature democracies
is the united states where you can permanently lose your right to vote in certain countries
you know if you've had a jail sentence in certain states like florida um so they said you know
there's a range of opinion on this and it's not a matter which falls within the competence to do
so they took it to a grand chamber and this voted by a majority the majority including
the one british judge in 2005 what then happened was that uh the labor then labor government sort
of sat on it because they knew that this would not be a very popular decision with the electorate
and and basically did nothing when the election came
it still hadn't been decided the council of ministers of the european council
who had the responsibility for the implement for monitoring implementation of court decisions
actually in a very unique case for the uk admonishment for not having implemented this
decision and as a result the new coalition government introduced a amendment to the
representation of the people's act which would have given prisoners who had sentences
of over four years oh sorry under four years the right to vote the argument was that
it was a bit of a lottery if you lost your right to vote if you had a sentence under four years
because on average we have elections every four years uh and so uh as a result you would lose it
if you were sentenced sort of like a month before an election uh but you wouldn't lose it
under many other circumstances so they said well we'll remove this anomaly which was one of the
they felt one of the elements in the in the bill that some lost it and some didn't but our argument
would be if you're sentenced to a britain sentence beyond four years then that is
a serious uh crime and it's part of your sentence that you lose you've broken the civic contract
and what used to be called civic death should follow as a result of that for the duration
of your sentence parliament however uh there was a uh backbench motion that's uh not a government
motion to debate this issue which was sponsored by jack straw the former uk minister of justice
he'd been a minister of justice under the labor government and david davis who prior to the
election had been the shadow home minister um and they argued both that the position that
had existed previously should remain the prisoners of any category lost the right to vote
and the britain should nonetheless uphold its international um uh commitments so something
paradoxical in that and this was overwhelmingly supported this motion by 234 to 22 uh right now
the position is that the uk still has not done it i think it's it's appealing it's trying to appeal
i mean you have under uh the terms of the european convention once a grand chamber has
pronounced you to have no you that's it you've had your there are no second there are no third
chances you've had your second time but in fact there have been as i'll say a little bit towards
the end um two other cases cities uh decided against different countries
um involving prisoners rights once against austria once one against italy decided by completely
different groups of judges and these have um resulted in quite different decisions
plus there is now a third british case that's been brought uh mr greens and it's this case that
the uk is used to appeal the whole first decision as well um uh and there's been a grand chamber
hearing this we still don't know what the result is going to be but i'll tell you a little bit
about that so i think this case uh it raises i think in an interesting way a general issue i want
to talk about namely that of the democratic legitimacy of international human rights
conventions i don't particularly want to look at the merits of should prisoners
have the right to vote on that's not my concern here my concern is more that if you have an issue
like this which is controversial and as it was the case in the in the uk you've had it
looked at by a court with regard to human rights issues in this case the self-same
human rights issues which are considered by this drasberg court and i should say that
unusually this is different to other countries which have domesticated international conventions
the supreme court in the uk actually has to take into account previous drasberg jurisprudence in
making its decisions something which is now controversial within the uk but uh is in the
human rights act and so the english british court thought well we've done this and we don't think
the previous jurisprudence actually leads us to to uh allow mr herst his view so you've had all
of that to last then you've had a debate precisely on this issue a free vote within parliament
amongst all the parliamentarians so why you know what grand might lead you to think that you could
accept that decision
now i think you know some people might sort of say well rights are one thing democracy is another
and perhaps the whole point of rights sometimes are to assert them against a democratic system
because you've got the majority etc etc but i think that's in a way is too easy a way out of
this issue one of the things we know is that democratic states being a democracy is the key
to upholding rights democratic states reliably not universally but reliably uphold the most
important rights non-democratic states just as reliably don't uphold rights there's an instrumental
relation between the two there's also a sense of which you can actually phase
the development of rights and the institutions that are hold them with the development of
democracy and it precedes the development of courts moreover when we look to courts we expect
them to have certain types of democratic qualities we want access to justice to be available
to all we don't want the law to be the law of the elite or the powerful we wanted to be the law
of all of the people we expect the judiciary to be open to certain types of democratic pressure
and to the degree that they aren't actually law regularly fails ordinary people if
litigation is overly costly if the decisions which are likely to be passed by courts
are those that favor the rich and powerful if they are not themselves aware of changes
in social fashion etc so that they apply outdated norms to to society all of these
have been responsible for grave injustices in the past and the one of the reasons why
in a certain sense one requires a judicial system that is democratically sensitive
even while wanting individual judges who are democratic who are who are independent
in their in their decisions but are the product of a democratic system that's that seems to me
to be undeniably true even for people who think that rights are one thing democracy are another
is not rights are only going to be rights for everybody if they're in a degree democratically
sensitive i think though even if you rejected all of that which would be an odd thing to do i think
there's the case that democratic legitimacy isn't an additional element that you might want to give
credence to for the acceptance of these conventions so they may have justification on justice grounds
alone which are somehow independent from any democratic grounds but if you can get democratic
grounds for interior to them that's a game so as a result the perspective i'm going to look at
this problem is from a democratic perspective i think it's one which you know has a case i'm sorry
and i'm going to look at it from perspective which is come to be called in the uk a political
constitutionalist perspective which i'll i'll explore explain in a minute um i think
that's important not simply because the uk has been said to be a political constitutionalist
system and that's obviously relevant to the hearse case um uh although post-human rights
act that is controversial but i think it highlights the democratic critique and i think
it gives us a an alternative perspective on the role of international human rights conventions
that i want to propose to you here so what is political uh constitutionalism well i think
political constitutionalism is the view that what i call actually existing democratic systems
have certain constitutional features
and they gain their constitutional features from uh institutional i think two elements
which are features i think that you regard as desirable in any constitutional system
one is reasonable what one is political equality and the other is a balance of power
the notion of of political equality we think that a constitutional system has to guarantee equality
before the law and political constitutionalism also says it's going to have political quality
in the making of the law to ensure that it reflects the interests of all the people
the notion of a balance of power is to institutionalize the notion of hearing
the other side in court proceedings one of the qualities that one wants to ensure
is that all sides of a case are heard that the defendant gets to put their point of view as well
as that of the prosecution and the both are treated impartially and equally by those making the
decision and one of the elements of actually existing democracy is that it has as a prime
component computing political parties and one person one vote and those are the ways that you
institutionalize balance of power and political equality and i should say that when i was saying
there's an instrumental link between democracy and human rights the institutional link
uh the instrumental link is that is is a link to those practices of democracy in other words
there are many regimes which call themselves the democratic even the uh late and not lamented
kennel gedaphim called his regime democratic but it wasn't because it didn't have that balance
of power that you get from competing parties even if they probably i don't actually know but i
assume you probably did allow one person uh one person this sort of necessary uh recommendations
of his rule or whatever so political constitutionalism says that uh you have that constitutional
policy and it's important in the area of rights because you have reasonable disagreement about
rights by reasonable disagreement i i don't mean a skeptical view of rights that there are no such
things as rights but that as with the issue of prisoners rights there can be a debate uh uh as
that has historically been a debate about whether they are forfeited or not when you commit a crime
or whether they're something which is intrinsic uh or indeed whether what the conditions if they
could be forfeited might be because interestingly enough in the judgments that were given even the
judgments upholding mr herst's complaint were different were different though i think one of
the great things about the european cause of human rights unlike the european cause of justice
is that they are they they they tell you what people actually thought about judgment so you get
a uh a number of minority opinions that come out as well so the literal constitutionalism
institutionalizes that balance of power and that equal voice which allows
reasonable disagreements about rights to uh to be heard and it's that which i think it gives it
its legitimacy but i think the important thing to to mention here is that whilst
it's a primary element it does allow a role for what i call weak judicial review
that is uh a review which is congruent with the aim that i that i expressed of enduring the balance
of power and political equality again within the uk human rights act it's possible for a court
under section four of the act to say we don't think this is compliant now during the period
when it says that the law still stands it's for parliament to decide whether it complies
whether it agrees with the cause or not but it is at the very least parliament does have to reconsider
its legislation and that can be justified with the grounds that there might be groups
and prisoners might be deemed to be one of them that don't get a hearing in the general
um electoral system although you know this case prisoners have been electors at some time in their
in their lives uh on the hull there might be one or two cases i suppose of people who are
who are incarcerated before the age of majority who never were able to vote but um on the hull
they have voted and will be able to vote in the future so weak review is there but strong review
which actually strikes it down is not something which is compatible with this system
so just to summarize you have a weak review balance of power and it's there because of
fallibility and systematic consequences the overlooking of certain arguments and
uh and it it creates in i think when it works best the possibility for a judicial legislative
dialogue about these issues and um there have been cases for example i mean the most important
case in the uk uh has been uh with the communications act which regulates uh political
advertising and unlike in the u.s where the supreme court has more or less said you can't
have limits on campaign finance or of political advertising the uk has passed an act which limits
this in order to ensure a balance of opinion which is independent on financing between the
different views bearing in mind the way in which courts have often decided free speech cases
the parliament said that they thought this might be deemed to be a limitation on free speech but
it was one that they were going to commit themselves to on the grounds they thought it led to a fairer
um democratic debate and and i think that because of that the court when it was challenged this
this piece of legislation said that they thought it was compliant with the human rights act too
i think if you now move from this debate to the international
uh arena it shows that some of the arguments that people like to put forward for why
uh judicial review should be allowed won't really work uh the standard arguments can all be put
into the phrase that you should stop parliaments being people being states being judged in their
own courts so the reason why you need this extra layer is because otherwise states can
decide these issues for themselves but i think that makes the state sound like a unit reactor
which it isn't if you open up the box of state what you discover is there's been all of this
debate going on between citizens to whom these rights are to apply so it's not the case but
the state has done something to an individual and at the most this is legislation made by many
millions of citizens indirectly it overlooks the local knowledge of domestic bodies
which enable them to judge things in their own cause with some information it might be argued
and this is perhaps an important issue in the case of hers that the rules of the democratic
game are special some some fools uh uh the american uh jurists uh elie famously argued
this the procedural uh judicial review is just causing a way that substantive judicial review
is not but i i actually don't believe that this substantive procedural
distinction comes out very neatly moreover there can be disagreement over procedures as
much as you can have disagreement over substance and it's not even clear to me that a right to vote
is the same as a right to living under a democratic system necessarily um so i'm not convinced by
by that argument it's also there's a certain inevitability about being judging your own cause
judges themselves tend to be judges over their own competences very often they blame
competence competence over their competences they say that's protecting their independence
upholding the separation of powers well in a way this issue here is also about upholding
a certain separation of powers of maintaining uh what domestic legislatures can do could all
of this be resolved i'll be very quick here by thinking you know if you have global democracy
then the court would fit in and that would resolve the the the issue um basically i i'm
rather reluctant to to grant that partly because if the danger that most people worry about is
going to democracy even though actually i think it's uh it's an issue which is overly um exaggerated
i mean uh namely the tyranny of the majority if that's the danger with democracy
when democracy deals with a much greater danger which is tyranny of the minority um then i think
that uh global democracy is certainly is much more likely to occur simply because when you have
a much more diverse and large electorate the notion the idea that you'll have equal
state and common interests amongst those voting is less likely and it's it's that existence which
tends to to render actually existing democracy within pluralist societies much less likely to
to produce tyrannous uh majorities um so instead i think that if one moves from a kind of
ruso said you should take uh think about take individuals as they are and think about institutions
as they could be so i think when one looks at the international arena you should take
states as they are and think about international relations as it could be um and states democratic
states as they are uh i think that what follows from what i've been saying so far from a political
constitutionalist perspective is that we want to have a world of democratic states because
rights are best protected when all peoples live in democratic states but obviously there are uh
conflicts sometimes within those democracies and ways in which they they might be on undermine
each other so we want a system where there's equal concern and respect between working democracies
so an international democratic system is one which is going to encourage the democratization of
states and and produce equal concern and respect between those working democracies so if that's the
context where bible thinks about what international a good international system what it could do in the
area of of rights we want international human rights conventions which are compatible with those
two criteria and when one thinks about the european conventional human rights that system
i think they arguably do meet those two criteria um you have judges from each of the contracting
parties on court there's a role for states and parliaments in the selection of judges the
european parliament through association the committee of ministers provide the governance
structure of the cause and convention they oversee its implementation of decisions and
competences and and you know the committee of ministers can nominate judges in the european
parliament um association is the body which chooses them and the european cause of human
rights doesn't disapply the rules it allows a margin of appreciation it offers a remedy
in international not domestic law for them so in a way you've got those elements whereby
you're respecting its its aim is to promote democracy and not to undermine working
perceived by allowing margin of appreciation which appreciates what democratic states do
for the same time within that structure you you have uh judges from each contracting party and
both unlike many other international conventions the european convention you can only become part
of european council and on hence the convention if you are a if you cross the same threshold
of democracy so so uh it's different from other uh systems in that respect
so i think what can illustrate the strength of this when you go back to the hair's case
because now you can see that the european dimensional human rights and the european
court of human rights are in part an aspect of outgrowth of a domestic legal political order
after all parliament is involved as our ministers in the organization and the running of that system
they're aiming to to help democratizing states and mature democracies in a way can accept
adverse judgments actually one of the things i wanted to say which is rather interesting is that
if you look at who signs up to these conventions and who abides by them then uh there's a kind of
a curve i sort of say whereby the the less democratic you are the more of these conventions
you start uh okay uh then if you're a little bit democratic or just beginning to democratize
you sign them and you abide by them you you you a culture develops partly because uh
many of the judiciary of those systems have been educated um in places like hamburg and
ucl etc etc and they've inspired all of these norms and they're fully international and they
so they see themselves as bringing international standards to their to their their countries and
so those uh so perhaps sort of during the democratizing period those countries become
very fully compliant um at least in the ethos but when they become mature democracies
then that's when the trouble starts are less inclined to sign up to these things
and they certainly are less inclined to accept adverse judgments and begin to sort of say well
the come where the real interpretation should occur is domestically the german cause uh germany
i mean people often say in the uk oh britain who wrote the european convention and today it's
rue britania is plagued by i mean people who are favor favorable actually none of this is
is really true the the countries that were most in favor of it were germany and italy for obvious
reasons uh france and britain uh did sign up to it but they signed up to it for you guys for
for germany and for and for italy um and when what you know they it's interesting i mean i drew
maranjak has written a very interesting article this where he sort of reports that you know more
or less the british all said well a lot of this is really going to affect us it's never going to
affect us uh so mature democracies in the sense rather consciously have agreed to accept the odd
adverse judgment i think there is something like in the last year there was something like 14
against the uk compared to around about 200 against russia and turkey for example and they
set those for those other countries but they do set on the belief there that there is going to be
a margin of appreciation and an invitation to dialogue about these issues and as i said there
have been these three cases since first frodo versus moscow versus italy greens versus uk
and frodo and scotland sort of said no dialogue was implied by heiress although heiress didn't
sort of say there was dialogue whereas greens versus uk said yes there is dialogue we're just
waiting to hear some dialogue from the uk which is just no we're not going to do it but we've all
a suggestion what's rather interesting uh uh is that on the 7th of november is that today
it's two days back two days back sorry yes two days go the uk took over the chairmanship of the
council ministers of the european council and we'll have it for the next six months uh everyone is
very excited about this uh it's just their turn they take it in turn uh but it is actually
important because uh it's it's the there won't be another major country putting it i hope i don't
offend people in saying you know what i mean uh which has this this role for certain time
because one's back at a it's done literally alphabetically and uh and there is a problem
with the court which is uh which is different to the heiress problem uh in a way but it's a problem
which the uk is rather nifty related to the heiress problem which is that there's a huge backlog
of cases i mean i've called does a sterling job but nonetheless particularly those two countries
i just mentioned have generating uh a long wait to get justice and um don't agree the eternity
attorney general uh has has suggested a rather neat solution to it subsidiarity uh he says well
surely we ought to be ensuring that fewer cases even get as far as the court and and the way
to do that is to sort of say that if there's been due process at the lower level then then you need
a really good reason for taking it beyond that uh it should be when there's been no consideration
of the rights issues at all not when they have been considered but found wanting by by false
whether this is a workable view or not is a completely different matter but it's nonetheless
it is one which is being seriously considered and which the uk wants to use its its chair
its period uh to to put on the table as part of a generally agreed package apart from this
on things you might do in order to speed up uh the process so my conclusion is uh political
constitutionalism which i advocated in in the book as angie is is not just a domestic
theory um i was sort of criticized in a way uh by myself for arguing oh well look this is just you
know kind of uh it's a it's a very british thing they don't have a written constitution or they
have these parliamentary practices and and that's you know that's the that's the view i mean i i
don't think it's just british because i think that uh in many uh jurisdictions where there are
written constitutions there is nonetheless a democratic critique of uh constitutional
judicial review which is seen as undermining what legislatures can do often to the detriment
of rights protection and there's a there's a very large and growing uh literature north american
literature on this uh now so so i would just use it because it was just a british parochialism
but i think the other criticism was that this operated at the domestic level but it was being
undermined by developments at the international level but but even if you could sort of say well
there was a democratic argument against it and the at the domestic level international courts were
were basically forcing constitutional democracy even on the uk and that my argument is well that
even be the case i think there's another way of understanding what those courts do which is
compatible with that political constitutionalist position so that's what i put to you and i just
end one of the sort of um the one of the sentences from my book that a lot of people uh quoted in
order to reveal how ridiculous the book was where i sort of say the rule of the law is simply the
rule of democracy and so i just repeated here in the global context by saying the global rule is
simply the global rule of democratic states thank you thank you very much obviously uh since since
this lecture is usually attended by lawyers and political scientists so i think the lawyers are
now going to step in pretty quickly on the meaning of the rule of law and i wonder whether
at least for us political scientists i think you offer a very nice defense of the political
in constitutionalism given that we're going to have our kickoff workshop on friday on the meaning
of constitutionalism i think that's very helpful well i take questions um people just want to raise
their hands yes would you like to yes but i think i need the microphone which is live so
that actually okay so i've got basically yeah two two questions if i may but first one is to um
to basically um the relation of non-citizens so if i look at cases in front of you've been
human rights like saudi versus italy or shahal was the uk um there's debate about obligations to
protect human rights as non-citizens so i'd be interested in your view of the role of international
convention of human rights for those non-citizens who might not be covered under domestic um
actually the other thing that'll interest me or you view um on this is whether you would see the
more of the margin of appreciation as more for for a global rule um to take into account cultural
diversity because it does so very nicely in the up context and i wonder if that might be a way to
tweak um yeah human rights compliance on broader sense in a cultural diverse well at least for
those where marginal appropriation is is political i'm happy to answer straight away but okay um
well both both very important uh points i mean so uh with non-citizens um i think
there are two areas where i you know this falls into where i think uh these international
conventions help um first i think that uh all democracies have an interest in other countries
becoming democracies and so these issues often arise with asylum seekers or or those who are
who are fleeing non-democratic uh states that's that's why they have no citizenship or or um or
aren't citizenship of a democratic state in the first place so i think that um the pressure that
these systems create on countries to become democracies is important though personally i
think that you increase that pressure by not allowing them in at all until they've actually
started on the way rather than letting them in and then giving them some kind of legitimacy
um without making any moves to being democracy but uh i also think as i was said uh weak review
is compatible with political constitutionalism so uh this would be a case where when you're
dealing with the democratic state and its dealings of non-citizens uh weak review is a way of ensuring
that their concerns have to be considered and and obviously might not have been considered
in the original uh legislation but i mean again this is where tyranny of the majority is often
a very very crude way of looking at these things because um in the uk uh instance that i i know it
best so my that is what comes to mind but uh you know the cases that a lot of people sort of say
well these show how the human rights act was really important are the belmarsh cases which
were to do with uh detention of asylum seekers uh suspected of of potentially being terrorists
but actually uh you know and the courts initially upheld the detention rules which enabled them
but the worry was that they could be held indefinitely without without um being charged
of any crime uh just on suspicion that they might commit a crime and uh the um there's actually
produced you know one of the largest um uh rebellions amongst MPs of of any
that's occurred in peacetime uh since the second world war uh we've had a larger one since over
the european union but um this was on a rather more justified issue perhaps and so i think
that that shows that parliament can be led to consider these issues uh particularly if
it takes on as you know the good side of the human rights act i think was one of the things
that led parliament to have a specific role in considering legislation itself for rights
protection so um so i think that uh it's there but i still don't think that justifies and not
ban power for judicial review margin appreciation and cultural diversity uh yes i think it
potentially i mean the caveat i just put in there is only amongst democratic states uh
there's a diversity which is inconsistent with uh what i'm advocating uh which is you know no
democracy and no appreciation of of rights these aren't debates between people who don't wish to
uphold rights or democracy and those who do it's a debate between upholders of rights and democracy
and that's a rather different issue okay thanks uh alexander the next one yes thank you very much
you ended up with two answers to one question and this shows i think that um from actually the
question may study the two questions first question is um are other principles then the
democratic majority ruled accepted within democracy and to broaden all the adaptation from
constitutionalism um so you have the tension between this danger of
irony of uh majority of one end and um the majority person on the other the other end
and do you get an answer to that yes of course there's this legal system the legal system logic
which is a complementary principle to this majority within democracy and the second question
um are applications of such other principles from outside the nation state acceptable within
a democratic um nation state and this seems to be a different question because now you have the
tension between good resolution and national democratic traditions if you talked about this
and um i want to end up with a question to you wouldn't you accept a very easy answer
to your question and the easy answer is um we should uh democratic states should submit to
international rights conventions because democracy is not a sufficient valid principle
to protect human rights um this is not a spontaneous idea of course i mean we can read
who told us that after the first world war the democrat nation state wasn't the best
agent to protect human rights well you can say of course um this was a historic
situation which was not the situation of today um the second reason for my skepticism
democracy is the German experience after the second world war it was a good school
of universalism for us the Germans to be part of this european human rights development
and now you can again say of course this was not a mature democracy it was a
demonstrating democratizing state um but then again the last point um everything the
united states did after the after 9 11 against human rights did not lead to any um downgrading
in any uh relevant uh democratic index like um freedom freedom house index and so on they
they remained perfect democracies and nonetheless did things against human rights conventions
so the very easy answer would be because um democracy may stay perfect democracy on the
island but still do something against human rights so of course they should submit these
i think um i mean interestingly you've sort of heard my talk
in a way which agreed with your views but i don't actually hold uh so uh
i mean i totally disagree with your basic premise that democratic states are not the best protectors
of rights they they are i mean it's it's it's an empirical fact that the democracies protect
rights better than non-democracies that's just is an empirical fact name me one non-democratic state
famous and famed throughout the world for its uh upholding of rights it doesn't exist
the more democratic states become the better they uphold rights that that you can show
absolutely empirically so that's that basic premise i mean it's just you you you won't be able
to to of course that doesn't mean that they uphold it perfectly okay which is no but perfection
you know is nice to aim at
but all human institutions including courts are fallible
uh the history of of courts and the history of of democratic systems tend to go hand in hand
actually so the where courts fail is the democratic system fails so if one thinks for example
in the uk of hanging judges black acts the uh the long period you know the the failure
uh of the whole judiciary to uphold labor rights during the thatcherite period for example
um all of those are directly linked with failures in the democratic system as are
the united states are actually on my view the united states is barely uh qualifies as democracy
largely because it has so many of the features that many people think are good constitutional
features which constrain the will of the majority the the united states is the country
which where the majority can speak least and that is directly linked i think to its failures
on the upholding of of of rights because one structural feature of rights is that rights are
it's our universal actually do think the rights are universal so it's not a national prejudice
view that i'm putting forward here um but if you think the rights are universal
then a system which gives access to
to more and more people to express their concerns and interests is going instrumentally to go hand
in hand with rights protection the more you turn rights into a privilege of a minority the more you
entrench injustice and that's precisely what happens in systems which have too many checks
and balances as occurs in the united states so i think that systems which are more open
to majority to majoritarian pressures are precisely those which are likely to spread
rights but of course that does having said that you also have two problems one is
that this democratic system is not feasible at a global scale and that even if you have universal
norms those universal norms have to be applied to particular circumstances so national democracies
or local democracies whatever you want to call it are a one way of getting that application
just as having courts is another way of getting applications to very particular cases the more you
have that going up to a meta level to a superior level the less the more distance they are from
the contexts within which these rights actually have to be implemented and dealt with and it's the
failure to consider all of those knock-on effects that is the reasoning behind my argument as to why
you want to reduce or only have these courts as very much a last resort and to still give them
simply as a way of hearing certain voices which may have been neglected but i think the notion
that they form a kind of apex of a system is a very odd one you know because why i mean what
considerations should mean that the european cause of human rights is going to get something
right but a british cause or a german cause has got wrong if you think you know well there's been
all of that expertise that's gone into that thinking there's huge pressures on domestic
courts which are largely absent at the european level to take into account all of the concerns
and considerations that might be involved frankly many of the judgments and i think the
hair support even i should say i actually think the prisoners should have be able to vote personally
but but i have to say i think that the judgment and the arguments put in the judgment are
are really very poorly developed both in terms of legal reasoning and philosophical reasoning
much more poorly than those of the domestic court so i don't that doesn't legitimize my view the
fact that i agree with it doesn't with the outcome doesn't legitimize the decision because i find the
reasoning so spurious and odd that you know the only the the bits which i most agree with are two
dissenting views of the majority position which were given by by two by the outgoing in the
incoming president of the court which i think more or less sort of said this judgment is a bad
judgment even even if justified in its result but most of the judgment they were distancing
themselves from it's quite an interesting read from that point of view thanks i've got four and
a half people on this i'll take two and a half questions first and then the other two okay i
have questions my own and that's the observation very much that i think we're really close to
me to watch the the role of the courts because you could argue that the courts are at this point
arbitrage about performance democratic performance or the board you you continue to talk i thought
the courts could be considered as educators and in the moment that politics follows law and as you
say the court have built a judgment judgments on on pretty poorly reasoning and democratic or
philosophical rationale then the political power of courts can be quite quite a concern for the
future and obviously the European Court of Human Rights is not the only part of these
as you might say even worse others might say that that's good that they take a particular role
but i think it raises a really interesting question about perhaps justice and the spread
of civilization as democracy in salvation states is using ground but i that's just an observation
i have uh
i'm one of the lawyers who was actually announced and well i very much liked the idea of trying to
harmonize democracy in a rule of law which are usually focus opponents and now thanks to
half question and the first observation might fit i think you have to criticize the judgment of
course for the reasoning but there's one interesting point in the judgment which might fit to the
different modes of conceptualizing democratic sense of sensitivity within judicial discourse
and which has not been highlighted yet you mentioned the weak review which is the human
rights act the way of doing it the European Court of Human Rights can't rely on this because it
needs an institutional well it have to be institutionally integrated into the same system
to apply such a new mechanism so we have the marginal depreciation doctrine here which is
functionally actually the way of including this democratic sensitivity into the judgment
and here we have from the judgment an interesting part of course i said it is the automatic
exclusion from lectures which is the problem and then they reacted to the government's
argument that this has been discussed in parliament has been discussed but not at
length and there was no sensitivity as to the problem because it was long-standing law
and it was just accepted without great discussion so we have actually the arbitrator model here
which Anjelina just mentioned the arbitrator model and this might lead up another road
to integrate democratic sensitivity to look whether there has been sound democratic discussion
on the issue and the third or last mode would be subsidiarity which you just refer to here i have
my doubts because this is again the being called a human rights as an educator and because you
sometimes have to reproach the best pupils in order to still trust in the system with the weaker
pupils and when they make their faults so with you to Russia and Turkey sometimes you have to
turn the UK and Germany that they have violated the human rights in order to make the others
abide by the rule of law so this subsidiarity system wouldn't work as to my opinion and
another just the question talked about i'm actually correcting national decisions on
the international plane now taking the idea of one step further international regimes and
the last part of here and last months i actually pointed to this direction would you see further
potential for legitimizing international regimes by using courts of course the matter the question
of access becomes crucial here for actually for questions of empowerment of making one's case heard
on the international plane because democracy doesn't travel that well on the international
plane with always the problem of free presentivity who is the one who actually his voice has to be
included so might that be not the only but an additional legitimizing element in access to
courts revising international decisions okay my question is very basic um i simply would have
liked to just once more explain why to your global rule is sort of logically the rule of democratic
states because i mean you explain parts of it um in the previous answers but still to me there's
one aspect of democracy lacking you did speak about empowering the individual and giving access
and um well to the possibility to express concern and interest but still to me one really important
aspect is um political participation or maybe how the individual from this um bottom-up approach
rather than the top-down approach um has first of all the chance and maybe due to knowledge or
personal background to to make use of this new granted right new granted right um and the second
one how the interest is there because as you said um many people don't have this um connection to
the sphere of international law as well as they might not have it to domestic law so it's getting
even further away and more difficult so maybe you could just put it in the nutshell okay thank you
i think that um
one issue which is raised by by Hearst is this issue of courts as being arbiters of democratic
performance and what's interesting is that most of the british judges anyway that i've spoken to
casually about this have been very unhappy at being given this role though interestingly
many continental judges and many british academics advocated uh quite falsely i mean the the
venice commission uh who sort of came into being in sort of 1989 um democracy through law there's
a contradiction in terms if ever there was one um there they see their argument was well the way
in which you get democracy is through having these strong constitutional systems which then
will lead these these democracies to to abide by the rule of law and so the rule of law thereby
became a standard for for whether you were democratic or not and then they had a difficulty
because they sort of oh dear um uh there are certain countries which don't seem to fit our
model or were they uh norway sweden finland the uk now that seems to me rather old if you've come
up with a definition of democracy which seems to be excluding some rather well-functioning
democratic uh states but did this lead them to change their views on this sort of think that
maybe they got the phasing of this a little bit wrong no no instead these countries were put on
huge pressure in order to adopt the standard what were they were told was the standard model
read from lock and various other um pre-democratic texts as being things that you must have
so i think
my view i mean this is to answer the last question but i think it's pertinent
to to this my view of what the rule of law is is when laws are sensitive
to uh taking into uh appreciation the interests and concerns of those to whom they are to apply
on an equitable basis in other words rule of law isn't can't be it's not just something
of formal features of what law is and it's different to sort of having an ideal theory
of justice and applying to it it's it's intimately concerned with the systems for the making and the
application of of law so the rule of law is not the rule of something called law it's about the
institutions and the processes by which laws are made and then applied and whether they do so
with certain sorts of qualities that is in my view that they treat people uh equitably uh
in the substance and the form and i think the to go back to my starting point the features which
which ensure that both for the legal system and for the political system are democratic the
existence of democratic pressures absent those conditions and you don't get those pressures
which is why you know countries where you've where people including some of my law colleagues have
gone off constitute ideal constitution in their suitcase and sort of said my good people adopt
these things and all will be well why that's been a total disaster uh in many parts of the world
uh is because unless you have something like a working democracy that system doesn't work
and so it's embeddedness you know embedding a democracy within that will only work if you've
already got democracy working in order to to to develop it otherwise you're putting the cart
before the halls so i think uh courts cannot i mean they're part of a democratic system
that's what gives them their ability and that's one of the difficulties then with international
courts it's precisely they're not part of that system uh and when when they're out of those
pressures then that means that they're not going to you know their reactions move are moved away
from taking all things and hearing all signs to a particular issue because and that's is important
to me for the rule of law and i think it's yeah actually i don't think that the european
cause of human rights is a bad court but i think it the european cause of justice because of its
isolation from these pressures does often make much more insidious judgments as a as a result
because it's not hearing all signs so um should i take the last three yeah okay because i think
where we're nearing the end and um i was speaking first please thank you very much i'm speaking from
the perspective of a sociologist so this might be a little bit possible by your last conclusion
global rule of law justice democratic states and somebody who's interested in
and a question of how to theorize the global and somehow probably what emotion of the global is
in this sentence and uh or by uh let me put it like that i'm passing how easy how easily you could
serve the global into that sentence when you mentioned the original version is just the rule
of law is the rule of democratic states and so my question would be is the global somehow i mean you
mentioned it's not it's not just a kind of doubling of the logic of the national but still it seems to
me like the deficient model of the nation state but still somehow very close to link to what we
understand that the nation states so i'm interested in this in your idea of global which
which sure right all right okay so this might be let's say too strict in terms of terminology
but let me give it a try so you move from the rule of law to the global rule of democratic states
i think that's not only called an emphasis on democracy but also on the state of course
yeah and so i'm wondering if this isn't sort of two um state-centric notion of the rule of law
in the in the german debate there is um the rule of law sometimes translated as
late strategy even without knowing very much german you might recognize within the late
strategy an alternative figure would be the rule of democratic law um which is not so closely
covered to the notion of the state so the question would be this why did you choose the global rule
of the democratic state instead of something like the rule of the democratic law okay okay the final
question and then the list is closed is jennison's answer back well my question is probably pushing
into a similar direction i would like to know more about your understanding of the institutional
dialogue that you sort of drew on towards the end of the judicial political dialogue that you
mentioned and i would like to contrast it this with the paradox that you started your talk with the
emotional push projects for davis on continuing the what the uk is doing
right this is a challenge uh by the part of the part of this dialogue or what is the what is the
principle of as you put it reasonable disagreement in case in this constellation that you do not see
okay um idea of the global i mean i suppose what you have as a sociologist you're sort of saying
well shouldn't the global be about so global social processes um but being a political scientist
i suppose my concern is well how how do political institutions control those global processes and
there have been a lot of people who've argued well they control them by creating similarly global
institutions and i suppose i think that if our current financial crisis i mean we were all told
finance that's the most globalized thing in the world uh you know states can no longer control
what what markets do etc etc etc and we discover all of these financial institutions
are heavily domestic uh that you know the bank the international banking system is currently
being nationalized um and indeed the issue the result of the solutions are through international
dialogue and i'm not convinced that they could successfully be anything but that because the
asymmetries between the different countries concerned so great that there isn't a unique
global point of view which can't be gained through that witness that is what the difficulties
surrounding the solution of the euro crisis are all about and why all of this talk about you know
the answer's got to be fiscal union no longer dealing with with with it just a technocratic
solution aren't going to work um so politics remains international global politics has got to
arise through that even though there are global problems and global social problems i think the
political solutions are international by which i mean interstate um so does that mean i'm too
state-centric well i don't think so because i think that the state has qualities which are not
dealt with elsewhere i think that the other obviously you know the eu is
the most developed non-state international actor and it is deeply interstate
in many of its most dominant features in my view and i think its failures derive from
the attempt not to recognize those differences like setting up the euro zone with amongst
countries with such differing economies uh is a good example of and we are reaping some of the
problems of it now that's why i mean the rule of democratic law as you put it then
well it's got to be rooted democracy i mean you know that is i do mean that in a way but only
within systems which are capable of delivering democracy which can't be done i think at the
global uh level i also think it's it's democratic systems not simply the democratic making of law
so i think i regard a working judicial system as part of a democratic system take the judiciary
out of the democratic system and it's no longer will do its job i think that uh the judicial
system as a system is dependent is a dependent of democracy more generally that's when it works
well and visually uh which is different to sort of saying that you don't have independent judges
but they but the system of the judicial judiciary has got to be democratically sensitive
and so it's that sensitivity which leads to the institutional dialogue i think and it's much
harder to have at the end i think it it happens within all democratic systems no matter how
independent you may say that your judiciary are as a body the judiciary is always to a degree
democratically sensitive it's part of the system there may even be mechanisms which make it highly
democratically sensitive but even in quite independent systems like like the german
are the judiciary ultimately are sensitive actors to to national democratic norms
as international bodies never are and that's their weakness in my view okay well thank you
very much roger i think the question that that has been lingering with those of us who have
extradited the uk is whether or not mr first killed his man lady
we'll have the chance to talk about that a glass of wine and dinner i think i wanted to thank you
very much for giving me this interesting input into our discussion on global constitutionalism
i thank the audience for their questions thank you thank you