As an undergraduate law student in the late 1970s, I rather enjoyed the lectures that I attended on the fundamentals of jurisprudence, the idea of law. At a time when the UK was barely getting to grips with the ins and outs of EU law and the European Convention on Human Rights (the ECHR) was little mentioned in legal circles, I was taught that there were fundamental differences between written and unwritten constitutions.
As regards the latter, with particular reference to the UK’s constitution I was taught that although the legislative, judicial and administrative processes of government are constitutionally separate from one another (the separation of powers) in the absence of a written constitution, the overwhelmingly important doctrine was the Supremacy of Parliament. At a time when for instance the rights of domestic violence victims were only just being acknowledged for the first time, my fellow students and I were left with the abiding impression that somehow rights belong to other people and that English (as opposed to Scottish) law was prescriptive and that it focussed on what “is”.
This was very much compared and contrasted to the notions of “natural rights” that were developed in Europe in the wake of the French Revolution and embodied in the written constitution of the USA. In this context, the lecturers drew a distinction between the notion of “ought” and “is”. The US constitution prescribes a number of fundamental, inalienable rights that are founded on the “ought” concept and for instance enabled the US Supreme Court to make its landmark ruling in Brown v the Board of Education. (1)
In Brown, the court was asked to adjudicate on the subject of school busing i.e. process by which white and African-American children were transported at public expense i.e. bussed to segregated schools. This was contrasted with the piecemeal way in which legislation had outlawed unacceptable concepts such as race discrimination (the Race Relations Act 1965), unequal pay (the 1970 Equal Pay Act) and much more latterly, disability discrimination (the Equalities Act 2010). The 1772 landmark ruling of Lord Mansfield in which he declared that slavery was not so much unconstitutional as contrary to common law was referred to by my lecturers as a “one-off”, even though implicitly at least, his Lordship alluded to some of the “natural rights” or “natural law” concepts that at the time were emanating from Continental Europe. (2)
Another of my lecturers opined on “Brown v the Board of Education stating it could never happen “here”. In espousing the US model, he explained that in the UK, rights are “given by Parliament” rather than being in any way “inherent”.
What a difference to the present time! In 1999, the UK Parliament passed the Human Rights Act which specifically incorporated the ECHR into UK law. We in the UK now have “rights”; and campaigners and court advocates alike are no longer criticised for using the “ought” concept. UK litigants quite routinely take their cases to the European Court which has ultimate responsibility for interpreting the ECHR and in some respects at least the notion of inherent rights has permeated into the UK’s political, administrative and judicial decision-making.
The same lecturer who taught me the then distinction between what was effectively the UK “is” and the US or continental “ought” counselled that in a number of respects, rights that are simply expressed on paper are just that and that there is a distinction between an individual’s notion of what rights are or what they ought to be and what the law in any given jurisdiction stipulates or prescribes. Additionally, my lecturer explained that, “a right is not a right without a remedy”. In so doing he pointed to such things as lack of access to justice, delays, poor statutory drafting, sometimes contradictory judicial interpretations of the law and the expense of it all. He argued that for whatever reason, a legal system that does not deliver effectively denies people their rights.
Does any of this sound familiar? The same concepts and concerns still beset us although in a number of respects the HRA has been be something of a springboard for improved access to and delivery of justice. However, in reality, because in most countries, dispute resolution is premised on something akin to the adversarial UK litigation model, delays, complexity and cost considerations still prevail. At the very least, taking a case to the European Court is something of a last resort and unless there is a specific ought referral at some earlier point, and in the UK at least, this option can only be pursued after all domestic rights of appeal have been exhausted.
In a sense one cannot blame “the system”. Politicians and campaigners are quite rightly ensuring that rights are embodied in law but in so doing they rely on an antiquated system to oversee and possibly implement them, often, after the event. The whole process of securing one’s rights may often become subordinate to the old lawyer notion of “the vagaries of litigation”.
I often wonder if rather instead of implementing ever increasing amount of rights-based legislation, our lawmakers ought to consider the question of remedial rights. This does not necessarily mean the complete overnight overhaul of the court system. There will inevitably be times when legal rulings are required and the ability of an independent judiciary to scrutinise and interpret legislation is an important constitutional concept. This process will necessarily need lawyers and given that even in mediation, their input will often be required, they have little to fear. At the very least because in some respects, notions such as “rights” or” human rights” are quite ephemeral, there would inevitably be a need for lawyers and judges to assist with the processes of interpretation and implementation.
What is required is a slightly more imaginative, creative approach. It would for instance be a relatively simple matter for a large organisation selling consumer goods and services to ensure that those who are unhappy with decisions made by its customer services and other staff members are given access to an effective independent mediation system. In similar vein there would be nothing to stop individual local authorities adopting a similar service. The civil court rules could be changed so that in most cases, mediation would be employed as a first step in dispute resolution rather than something that all too often crops up as an afterthought. The small claims system that has been implemented in the US state of Connecticut is case in point.
In many instances, the net effect of such changes would be to improve day-to-day decision-making. Mediation would secure a level playing field. It would help to ensure that parties were able to communicate with one another and because they would be instrumental in determining the outcome, agreements reached would be much more likely to be respected and observed. In cases where one or more of the rights enshrined in the ECHR had to be considered, the parties would be able to discuss and possibly look to creative solutions that practically speaking a court simply could not entertain.
What might be the effect of these proposed changes? One very distinct possibility is that valuable and expensive court time would be freed up and perhaps used to better effect. Lawyers reading this piece will be pleased to note that the improved access to justice that I have advocated would very probably result in an increased demand for their services.
(1) Brown v. Board of Education of Topeka was a landmark 1954 Supreme Court case in which the justices ruled unanimously that racial segregation of children in public schools was unconstitutional. Brown v. Board of Education was one of the cornerstones of the civil rights movement, and helped establish the precedent that the “separate-but-equal” education that had hitherto prevailed was incorrect and that the educational services that had been provided in various US states services were not, in fact, equal.
(2) Somerset v Stewart is a famous 1772 judgment of the Court of King’s Bench which held that slavery was unsupported by the Common Law in England and Wales. Although the position elsewhere in the British Empire was left ambiguous, Lord Mansfield decided that: “The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England…”
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.