Are judges flirting with ‘judicial supremacism’ by questioning the sovereignty of Parliament? Or are ministers flouting the rule of law, by interfering with judicial independence? Is the Government minded to hobble the judges’ powers to review the way in which ministers and other public officers exercise their powers? Should British courts be given greater powers to remedy breaches of basic human rights and freedoms, or would that mean turning judges into unelected politicians? Are judges competent to decide questions of public policy? Do we need a code of modern constitutional principles to guide the legislative, executive and judicial branches of government? Or are we better advised, as Conor Gearty advised us (LRB, 16 November 1995), not to give more power to ‘unelected, unrepresentative and unaccountable judges’ by weaving the European Human Rights Convention into the fabric of British law, but instead to reform Parliament and the electoral system, and devolve power away from the already over-powerful central government?
Questions of this kind were rarely raised a generation ago; now they are commonplace. There are many reasons for what amounts to a radical change in public perceptions. They include the impact of European law, penetrating with ease Britain’s permeable unwritten constitution; widespread discontent with the way we are governed; Charter 88’s success in getting the question of constitutional reform onto Labour’s agenda; the spectacular development of judicial review of administrative decisions; and unprecedented attacks made on judges by ministers.
These attacks have been concerted, populist and unfair. They have been led by the Home Secretary, Michael Howard (a frequent and bad loser in the courts), and the Chairman of his Party, Brian Mawhinney, who has urged Tory hangers and floggers to write in and complain about lenient sentencing on the part of judges, and has put out as party propaganda a non-existent lecture, in which the Lord Chancellor would supposedly have called the judges to heel. Michael Heseltine has attacked the judges of the European Court of Human Rights, following its judgment in the Death on the Rock affair, hinting that the Government might take away the right of access to that Court (in the event, it was reluctantly renewed in January).
The Lord Chief Justice, along with the retired Law Lords, Ackner and Donaldson, have vigorously counter-attacked against what they see as the threat of executive interference with judicial independence, notably as a result of the proposed introduction of mandatory sentences for persistent serious offenders, which would deny the courts the power to impose a punishment to fit the particular circumstances of the crime. The Master of the Rolls, on the other hand, finds nothing novel or unconstitutional in the Home Secretary’s proposals.
The Lord Chancellor-in-waiting, Lord Irvine, has also entered the fray in a lecture (this one really was given) in which, surprisingly, he criticised the courts for ruling that it is for them rather than for ministers to decide whether administrative procedures are fair, and argued that they should intervene only if a minister’s choice of procedure is what judges stigmatise as ‘irrational’. According to Lord Irvine, it is ‘the constitutional imperative of judicial self-restraint which must inform judicial decision-making in public law’. He also criticised recent rulings that require tougher judicial scrutiny of decisions affecting human rights, while maintaining his support for making the European Human Rights Convention directly enforceable in British courts – a major constitutional change which would mean more rather than fewer applications for judicial review. And he warned liberally-minded judges, like Lord Woolf and Justices Laws and Sedley, against ‘judicial supremacism’ following articles in which they seemed to question the dogma of Parliamentary sovereignty.
Things were very different a generation ago. Then, the judges, influenced by the exigencies of wartime, by pervasive government control in the early postwar period, and by a desire not to be regarded as politically motivated, needed no reminding of Francis Bacon’s magisterial warning to the judiciary of the day: ‘let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’ It was an age of deference by one group of Old Boys to another, when judicial members of the Establishment deferred to their fellow clubmen, the mandarins of Whitehall, in deciding where the public interest lay. In 1962, Lord Chief Justice Parker saw judicial review as founded on the principle that courts are the mere ‘handmaidens of public officials’, rather than designed to protect the citizen against the misuse of state power.
From Late Victorian times until the early Sixties, judicial restraint bordered on judicial abdication. The judges imprisoned themselves within a doctrine of legal precedent so inflexible that the Law Lords could not overrule their own previous judgments, however wrong-headed or outmoded they had come to seem. They also fettered their powers by adopting literal rules for the interpretation of Acts of Parliament, concentrating on the letter rather than the purpose of the law, and leaving it to Parliament to clear up the statutory mess. At mid-century, judicial review of administrative action was technical and perfunctory. Ministers and civil servants were able to use the broad discretionary powers which they had easily persuaded Parliament to give them, without the inconvenience of effective supervision by the courts to ensure that they used those powers in accordance with modern standards of good administration.
The common law developed by the courts during much of this century was, at best, ethically aimless; at worst it was biased in favour of the strong and against the weak – subservient to the executive, overvaluing property rights, undervaluing the right to freedom of speech, restricting the activities of trade unions, weakening the legal protection of civil rights and liberties in new Commonwealth constitutions and sanctioning the unequal status of women. During the interwar years, in a series of especially unsightly decisions, the Law Lords, sitting in the Privy Council, overruled more courageous colonial courts in Canada and East and South Africa, in upholding the legality of the exclusion of Asians on racial grounds from the right to vote, work, trade and own valuable land in certain areas. The Privy Council even decided, after the war, that Canadian citizens of Japanese descent, born and bred in Canada, and innocent of any unlawful conduct, could lawfully be sent ‘back’ to Japan, as the land of their ancestors. The Law Lords’ excuse for condoning this was that they were bound to apply the letter of the law, and to ignore the policy implications of their decision.
That reactionary and inglorious period of legal history has left enduring scars, especially on the left of British politics. In The Politics of the Judiciary John Griffith provides more recent material to support his thesis that a white, male, Oxbridge-educated judicial élite is not to be trusted to decide the questions which would arise if we had a modern Bill of Rights, broadly defining the limits of state power. Conor Gearty subscribes to the same view. There have been, and no doubt always will be, prejudiced, arrogant and cantankerous judges whose fallible judgments and ignorant dicta can be cited to prove the unfitness of the judiciary as a whole. And deep new wounds have been inflicted by gross miscarriages of justice, too long unremedied by the Court of Appeal. In October 1991, in a Mori poll, 79 percent of respondents agreed that their rights would be most effectively protected if they were written into a single document. When asked who they felt should be responsible for protecting a Bill of Rights, only 8 percent wanted a court with the kind of judges we have now, compared with the 34 per cent who supported the European Court of Human Rights, and the 40 per cent who wanted a more representative British judiciary (whatever that may mean). The poll was a graphic indication of the task facing the Lord Chief Justice, Lord Taylor, in restoring confidence in the administration of criminal justice.
Popular doubts about the fitness of the judiciary to protect civil rights and liberties are understandable. But the judge-bashing indulged in by opponents of a Bill of Rights is selective and unfair, for the senior judiciary and their case law have changed beyond recognition over the past thirty years. Again and again, outmoded and illiberal decisions have been reversed. It would not be fair now to say that our judges are timorous in developing the common law in accordance with contemporary ethical and social values, or in standing as arbiters between government and the governed. From the mid-Sixties, led by Lords Reid, Denning, Scarman and Wilberforce, and by a latter-day convert, Lord Diplock, they breathed new life into English administrative law.
The present Law Lords have continued to work in that tradition. They have scrapped archaic limits on their jurisdiction; have revived ancient principles of natural justice and fairness; and have rejected claims of unfettered administrative discretion, or of absolute government immunity from having to disclose relevant documents to the courts or comply with court orders. They have prevented government bodies from using libel law to stifle public criticism, and have curbed excess in the damages awarded by juries in libel cases. In the Privy Council, the Law Lords have interpreted Commonwealth constitutional guarantees generously, with full regard to international standards of human rights. Sir Thomas Bingham’s Court of Appeal has insisted that the more substantial the interference with human rights, the more the courts will require by way of justification of the ‘reasonableness’ of the decision. The outdated technical rules that prevented pressure groups and citizens from bringing important matters to the judicial review courts have been abolished. And the Law Lords have overturned the ancient exclusionary rule forbidding recourse to Parliamentary debates and reports to interpret an ambiguous or obscure statute.
In making these changes the judges have been guided by an evolving set of modern constitutional principles, similar to those enshrined in the written constitutions of other countries. They have been careful not to usurp the powers of Parliament or of the executive. They have also avoided imposing legalistic requirements on civil servants which would stultify the administrative process. And they have subtly altered the balance of power between the three branches of government. Thanks to imaginative recent appointments, British judges are now no less competent to interpret a modern Bill of Rights than is the US Supreme Court, or the Supreme Courts of other Commonwealth countries, or the European Court of Human Rights.
Doubts remain on the left, however, about the wisdom of enacting a Bill of Rights which would enable corporate and other powerful groups to, in Conor Gearty’s words, ‘win in court battles what they have already lost in the political arena’. In Canada, for example, the Supreme Court recently overturned a legislative ban on tobacco advertising, and in a particularly disastrous decision the US Supreme Court removed the limits on expenditure by candidates in political campaigns. Gearty’s response is root-and-branch opposition to incorporation of the Convention. Labour’s response is to deny companies and organisations protection under their proposed Human Rights Bill, a move which would mean, for example, that newspapers could not obtain damages for financial loss resulting from unwarranted interferences with free speech, that companies could not obtain compensation for the confiscation of property and that trade unions could not enforce their Convention rights in British courts. The proposed Bill would thereby fail to incorporate the Convention fully into UK law, and British courts would continue to be prevented from giving remedies which can be given by the European Court.
These fears of obstructionist, property-conscious judges are exaggerated. If the Convention were incorporated British courts would be required to interpret its provisions in the light of the jurisprudence of the European Court. The fact that the Human Rights Act and its case law could be changed by Parliament would ensure that the last word would lie with the elected body.
What worries the executive, by contrast, is that our courts may be too liberal in protecting the governed against the misuse of power by the Government. Anxious about judges looking over their shoulders, ministers and their advisers are implacably opposed to giving them power to interpret and apply the Convention. During last year’s debates on my Human Rights Bill (which would have incorporated the European Convention into British law), the Home Office Minister, Baroness Blatch, argued in the Lords that ‘incorporation would strike at the constitutional principle of Parliamentary supremacy.’
It would do no such thing. By making the Convention part of our law, Parliament would in fact be reviving its sovereignty by exercising its powers to prescribe the limits within which our courts could give effect to the Convention and provide remedies for breaches, while retaining the right to amend the Human Rights Act in explicit terms – preferably by means of a specified majority of, say, two-thirds.
What incorporation would do is to strike at executive rather than Parliamentary supremacy. To put it crudely, our courts will review the merits of an administrative decision only if the decision-maker acts ‘Wednesbury unreasonably’ by ‘taking leave of his senses’. European standards of judicial review are stricter. They forbid not only decisions which are senseless, or procedurally unfair, or made for an improper purpose, but also decisions that represent an unnecessary and disproportionate interference with basic rights and freedoms.
It is convenient for both ministers and civil servants to keep the Convention out of British law in the name of Parliamentary sovereignty, and to prevent judges using Convention standards to decide whether, for example, the exclusion of avowed homosexuals from the Armed Forces is excessive (rather than a form of administrative lunacy). It will suit the executive if the hectic enlargement of the Council of Europe and the Convention system results in a dilution of European human rights jurisprudence. It will suit it also if the remedies for breaches of the Convention are provided only after delays of six years or more: the time it takes the hugely overburdened European Commission and Court to deal with cases. It does not, on the other hand, suit the wronged individual to be denied speedy and effective domestic remedies.
Another Home Office objection is, to quote Baroness Blatch again, that ‘the areas of public policy covered by the general principles set out in the Convention have traditionally, and rightly, been the province of Parliament rather than the courts.’ The opposite is closer to the truth. The competing public interests covered by those principles are examined more thoroughly by the courts than by Parliament. The courts already have regard to Convention principles in interpreting ambiguous legislation (for example, the presumption that Parliament had not created a retrospective crime in the Immigration Act) and in clarifying the common law (whether, for example, to extend blasphemy law so as to protect Islam against alleged insult as in the Satanic Verses affair, or to give greater weight to free speech). In the Bland case, the Law Lords had to decide whether artificial feeding could lawfully be withdrawn from a patient who was permanently unconscious, even though he would then inevitably die. Underlying their decision was the need to weigh the public interest in preserving the sanctity of life against competing interests in human dignity and privacy. One issue in the Brown case was whether it would be an invasion of personal privacy to reject a defence of consent to charges of assault and unlawful wounding arising out of actions performed in private during sadomasochistic encounters. In Spycatcher, the Law Lords weighed the competing interests of free speech and government secrecy; and, in the Derbyshire County Council case, they weighed freedom of speech against the public interest in protecting a government body’s reputation.
Decisions of this kind would arise more commonly and more systematically if the Convention were incorporated in a British Bill of Rights. There have been other instances where Parliament itself has recognised that it is appropriate and necessary for courts to answer important questions of public policy. For example, our anti-discrimination statutes require the courts to decide whether traditional practices which are fair in form but unequal in their impact on women or ethnic minorities are ‘justifiable’. Policy issues form an inevitable part of such a judicial verdict.
Where European Community law is paramount Parliament has commanded the courts that it shall overrule inconsistent statutes. The Law Lords have thus struck down a statutory requirement of full-time working as a condition for obtaining compensation for redundancy and unfair dismissal, on the grounds that it was in breach of Community law in indirectly discriminating against women, and went beyond the legislators’ legitimate aims.
Judgments of this kind are ‘political’ only in the sense that they involve policy choices which are politically controversial and could be made by the legislative or executive branches of government. They are truly judicial, however: they fall within the proper province of an independent judiciary, in impartially deciding concrete disputes in individual cases. Within a system of democratic government under law, there must be a separation of powers, with Parliament making the law, the executive implementing it and the judiciary interpreting and applying it. One crucial virtue of the judicial process is that judges are insulated from the forces of party politics and the politics of the bureaucracy. That is why they have been described as the ‘least dangerous branch’ of government, better able than elected politicians or their civil servants to protect minorities against the misuse of power by or in the name of majorities.
What those who oppose incorporation cannot explain is why it is appropriate for European judges, but inappropriate for British ones, to interpret and apply the Convention. After all, the founders of the Convention expected (as is the case in almost all other European countries) that alleged victims would be able to invoke it in their own courts before having recourse to international remedies. The Strasbourg judges are surely no more ‘representative’ or ‘accountable’ (to use Gearty’s words) than British ones. Nor is it undemocratic for unelected British judges, or formally elected European ones, to protect individuals and minorities against the misuse of powers by elected politicians, even where that misuse accords with the popular will.
As its membership grows, with the accession of new democracies (now to include a wholly unready Russian Federation), the Convention system may well buckle under the strain of an impossibly large case-load. The European Court is already grossly enlarged, and the larger it becomes the more likely it is that the Court will be rather more alert than it should be to regional or national ‘sensitivities’, diluting the existing case law, and leaving too broad a margin of discretion to public officials at stale level This will mean in practice that the European Court will be much less likely to come to the rescue in the British cases taken before it. Indeed, in an outrageous attempt to violate the separation of powers and judicial independence, the Government is lobbying in Strasbourg to persuade the Court, by means of a resolution of the Committee of Ministers, to expand the margin of appreciation, taking greater account of ‘regional and national perceptions’ and giving greater deference to ‘long-standing laws and practices’.
Incorporation would encourage a firmer and more consistent jurisprudence of human rights, would increase much-needed British judicial influence in Strasbourg and would provide speedy remedies. But it would work well only with the active support of government and Parliament. There is a pressing need to improve access to justice for those excluded from legal aid by recent savage cuts; a need which would become still more pressing if our judges were empowered to apply the Convention. As Lord Irvine has recognised, we will need a well-run, well-funded Human Rights Commission, bringing well-chosen, well-argued test cases before the courts.
We also need a Bill of Rights which goes further than the Convention, whose many unsightly exceptions and limitations were contributed by British civil servants during the drafting process. The guarantee of equal and non-discriminatory treatment is too narrow. The Convention rights of aliens, refugees and deportees are marginal. The grounds on which states can interfere with rights are over-broad. The International Covenant on Civil and Political Rights, by which the UK and most other European states are also bound, is a better model. We should make both the Covenant and the Convention part of our law in a concise Human Rights Bill, while working for a free-standing British Bill of Rights as a longer-term goal.
The power of government needs to be matched by the power of the law, if the individual is to be secure. Government based on freedom is not achieved simply by establishing a representative machine, however well-oiled. It involves the security of personal rights as much against the executive government as against the ‘private’ governments of the multinational corporations. Our courts should be empowered by Parliament to give redress where basic rights and freedoms are infringed. That does not mean being governed by judges: it means being governed by executive authorities that are effectively accountable to Parliament and to the rule of law. It means a better working partnership between all three branches of government. The judges have done their best to reform their procedures and to adapt the law to contemporary values. The time is over-ripe for government and Parliament to match this achievement.
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