Vernon Bogdanor: Judges must reflect the diversity of British society

From a lecture at Gresham College London on the Human Rights Act by the Oxford University Professor of Government

If Parliament were to pass an Act providing that all red-headed people should be executed next Monday, the courts could not strike it down.

If Parliament were to pass an Act providing that all red-headed people should be executed next Monday, the courts could not strike it down.

How, then, have human rights been protected in Britain, if not by the courts? The answer we have given in the past is that human rights depend, in the last resort, upon public opinion, as reflected in Parliament. Our rights are not derived from a constitution, but from the decisions made by Parliament; and Parliament has normally taken good care not to infringe human rights.This approach - reliance on Parliament to defend human rights - is, however, nearly unique in the modern world.

The Human Rights Act revolutionises our understanding of rights. The traditional viewis that we do not believe in declarations or bills of rights. The principles defining our rights were derived from decisions made by Parliament. In the United States, by contrast, or Germany, rights are deductively derived from the constitution. In future, our rights, too, will be deductively derived from a constitutional document, the European Convention on Human Rights. This Convention is now a form of higher law.

Does the Human Rights Act substitute government by unelected judges for government by elected ministers?

The growing importance of the judiciary means that the bench will fall increasingly under critical scrutiny. It will need to become more representative of society than it is at present.

One of the qualities now needed, in our society, to be successful as a senior judge is an empathy with the problems of a multicultural society and a society in which the role of women is changing. I do not believe the senior judiciary will maintain the high level of public confidence which it now enjoys unless it becomes more diversified.