The answer lies not in some developing subjective notion of fairness or justice or
reasonableness – the answer is surely that we have over the past forty or so years
steadily been redefining and reshaping the necessary content of democracy. The
likes of Jennings and Titmuss were not venting their subconscious antagonism
against lawyers but were rejoicing in the triumph of representative democracy.
Parliament was finally elected by all the people, men and women, landowners and
workers, whose will should be respected. The representatives of those people
should therefore be free to decide what was in the people’s interest. This was the
democracy of that time.
The moment when that conception of democracy was questioned is well described
by Isaiah Berlin in his book of essays, The Crooked Timber of Humanity. He refers
to the ‘ideological storms’ of the twentieth century, which not one among the most
perceptive thinkers of the nineneenth century had ever predicted. He was recalling
the aftermath of the Russian revolution and the tyrannies of the right and left in
Germany and elsewhere. He felt that those tyrannies, created with clear popular
support, had, as he put it,’ altered the lives and viewpoints of virtually all mankind’.
They showed simply that democracy and majority rule could no longer be regarded
as synonymous

It was surely the lessons of that period that convinced even the most ardent
majoritarian or utilitarian that democracy goes beyond representative government.
Popular will is important, but should not invade certain fundamental rights and
liberties. Seen in that context, the claim for our attention of administrative justice is,
similarly, not based upon ungrounded and well-meaning notions of ‘good’ or ‘fair’
administration but upon an insistence that all decision-makers acting on behalf of the
state respect a person’s sense of individual worth and dignity and not close their ears
to legitmate claims. It was the lessons of that period that of history that persuaded
Parliament to begin to protect minorities from discrimination, and to abolish capital
punishment, even in the face of strong popular opinion to the contrary.
This new dispensation is still often misunderstood by those who insist upon viewing
democracy as exclusively confined to majority rule and berate the ‘culture of human
rights’ (as did the Lord Chancellor, Lord Falconer, some months ago). However, he
appears to have changed his mind in a talk two weeks ago to the Bar Human Rights
Group when he said, rightly:
‘Democracy is not just a process for intermittently selecting a government. It
is an acceptance of the values of equality, tolerance and freedom. We can
only safeguard our democracy and our freedoms by the rule of law.’
Now that we seem to have reached an acceptance of the fact that human rights are
inherent in democracy and not an optional accessory, is the balance between the
branches of government perfectly calibrated?
In two respects it seems unstable and in need of correction. First, Convention rights
are not entrenched. They can be amended by any simple statute without any special
majority. The expectations of the Convention’s entitlements may therefore be too
easily disappointed in response to a perceived threat of the moment and populist
opportunism. Governments should have the freedom to respond to public pressure
in order to change most social policy, but by definition the opportunity should not
easily be available to subvert what Lord Steyn has called the ‘new constitutional
hypothesis’ – an hypothesis which, by definition, seeks to protect unpopular causes
or minorities from the dominance of the majority. A written constitution, with a higher
status than ordinary law, has the advantage of preventing such easy amendment.
Some countries achieve this short of a written constitution by a set of entrenched
‘basic laws’ with express or implied prior constitutional status.