THE RISE OF JUDGES AND THE DECLINE OF PARLIAMENT:
JUDICIAL REVIEW AND THE HUMAN RIGHTS ACT

An Address to the Society of Conservative Lawyers

INTRODUCTION

Thirty years ago, on a visit to Philadelphia, I fell into conversation with a woman who had recently been given a parking ticket. She had been incensed, so incensed that she decided to go to Court to challenge it.

When she appeared in Court she was rather surprised when the magistrate called all the defendants who were to due to appear that day to the bar of the Court. He told them his name and asked them to remember it. Then he said "All cases dismissed."

The astonishment of my acquaintance at this development was tempered somewhat when she discovered that a few days later the regular election of magistrates in the city was due to take place. The magistrate before whom she had appeared, albeit rather briefly, was re-elected with the biggest majority in the history of the Philadelphia magistracy.

When I was told that story I reacted, I am sorry to say, with a rather superior disdain. "What can you expect" I asked, "if you elect magistrates and judges? We in Britain would never contemplate any such step."

THE BACKGROUND - GROWING POWER OF JUDGES

Thirty years on I am much less sure. The truth is that during that time the power of judges in this country has increased, is increasing and will increase further, by a huge amount, as a result of the Human Rights Act which became law in England and Wales two days ago.

For the most part this increase in power has been at the expense of elected Governments and elected Parliaments. Our judges, of course, are unelected. They are unaccountable. They cannot be dismissed, save in the most extreme circumstances, and in practice never are.

Moreover they are appointed without regard to their political background and views and without any public scrutiny, parliamentary or otherwise. I believe that this has, in the past, been one of the great strengths of our judiciary. But as they move, increasingly, to the centre of the political stage how long can this state of affairs continue?

It would be wrong to suggest that this shift in power is entirely new or that it is entirely due to the coming into force of the Human Rights Act.

THE EXPANSION OF JUDICIAL REVIEW

The Courts have traditionally had the power to curb the illegal, arbitrary or irrational exercise of power by the Executive. But, traditionally, this power was exercised with restraint.

The courts would be careful not to quash decisions simply because they disagreed on the merits with the decisions under challenge.

There is common consent that during the last 50 years this restraint has been eroded. As the present Lord Chancellor put it, in his 1995 Address to the Administrative Law Bar Association:

"the range of circumstances in which decisions may be struck down has been extended beyond recognition."

That address was essentially a plea for judicial restraint. Indeed in it the Lord Chancellor referred to what he described as the "constitutional imperative of judicial self-restraint."

He gave three reasons for it. First he referred to the constitutional imperative - the fact that Parliament gives powers to various authorities, including Ministers, for good reason and in reliance on the level of knowledge and experience which such authorities possess. Secondly he referred to the lack of judicial expertise which, he said, made the courts ill-equipped to take decisions in place of the designated authority. Thirdly, and most pertinently, he referred to what he called the democratic imperative - the fact that elected public authorities derive their authority in part from their electoral mandate.

It is worth quoting his words in full.

"The electoral system," he said, "also operates as an important safeguard against the unreasonable exercise of public powers, since elected authorities have to submit themselves, and their decision-making records, to the verdict of the electorate at regular intervals."

With respect to the Lord Chancellor, I couldn't have put it better myself.

Remarkably enough he even prayed in aid, as one of his arguments against judicial intervention, the fact that it would strengthen objections to the incorporation of the European Convention on Human Rights into our law - the very Human Rights Act which has just come into force.

Rightly describing it as a step which will hugely enhance the role and significance of the judiciary in our society he said this:-

"The traditional objection to incorporation has been that it would confer on unelected judges powers which naturally belong to Parliament. That objection, entertained by many across the political spectrum, can only be strengthened by fears of judicial supremacism."

THE HUMAN RIGHTS ACT

The Lord Chancellor was right. My essential objection to the Human Rights Act is that it does indeed involve a very significant shift in power from elected representatives of the people to unelected judges. Members of Parliament, and Ministers, are, except for Ministers in the House of Lords like the Lord Chancellor, answerable to their electorates. As I know only too well they can be summarily dismissed by the electorate, They are very directly accountable. Judges, as I have already pointed out, are unelected, unaccountable and cannot be dismissed.

The reason why this difficulty arises in such acute form as a result of the Human Rights Act is because so many of the decisions which our judges will have to make under it are, essentially, political in nature.

As Appeal Court Judge Sir Henry Brooke has acknowledged, judges will be drawn into making "much more obviously political decisions."

He recently pointed out "that for the first time judges would have to decide whether government interference with a human right was 'necessary in a democratic society' - and that of course is clearly a political value judgement.

How does this arise? In a nutshell the Act requires our courts to apply to the European Convention on Human Rights in every decision they make. The rights which the Convention seeks to protect are framed in very wide terms. The Convention was drawn up in the aftermath of the Second World War. Its authors saw it as a safeguard against any revival of Nazism or any other form of totalitarian tyranny. I suspect that many of them would turn in their graves if they were able to see the kind of cases which are being brought in reliance on it today.

None of these rights can be exercised in isolation. Any decision to uphold one right may well infringe someone else's right. Or it may conflict with the rights of the community at large.

To take one of the most obvious examples, there is often a real conflict between so-called rights of those accused of committing crimes and the need to protect victims and potential victims and to enhance law and order. Those decisions should, in my view, be made by elected representatives of the people. If they get those decisions wrong they can be made to pay a heavy electoral price.

But increasingly these decisions will be made by judges and we will be stuck with them, come what may.

The Act requires the Courts to interpret legislation so that it complies with the Convention if that is at all possible. If in the Court's view any secondary legislation - passed after due consideration by both Houses of Parliament -
is incompatible with the Convention that legislation can be struck down - by the Court.

If any primary legislation is held to be incompatible there is a fast-track procedure which would enable the Government to short-circuit the normal processes of parliamentary scrutiny in order to amend or repeal any such legislation.

This is surely a direct threat to the very democratic imperative on which the Lord Chancellor waxed so eloquent 5 years ago.

EXAMPLES

Let us consider some specific examples of the kind of issue which the Courts already have considered or may have to consider under the Act.

As is well-known it has already been in force in Scotland for some months, though I am quite convinced we have not yet seen its full impact even there.

But one of the cases which has already been decided held that temporary sheriffs - senior lawyers who sit as judges part-time and who have been helping to make the Scottish legal system work for a very long time - were not 'independent and impartial' tribunals within the meaning of the Human Rights Act because renewal of their appointments was up to the Lord Advocate, a member of the executive.

Another held that drivers are under no obligation to incriminate themselves by admitting that they were driving a particular car at a particular time. This obviously causes considerable difficulties for the prosecution of those caught speeding on camera.

You can, I suppose, make a case either way for the reasonableness of these decisions. That is not the point. The point is that they are decisions which should be made by elected representatives in Parliament not by unelected judges.

One of the problems in any attempt to assess the impact of the Act in England and Wales is that its operation is bedevilled with uncertainty. No-one knows how the courts are likely to behave.

It certainly seems a fair bet that the Chief Inspector of Prisons, Sir David Ramsbotham, was right when he predicted that prisoners would be able to sue the Government over just about any aspect of prison life. He said, last month, that we are going to find "an enormous amount of litigation against the prison service for breaching the various provisions of the Convention."

There is a possibility that the Human Rights Act could be used to challenge the exclusion of the armed forces from disability discrimination legislation, allowing severely disabled people into the armed forces.

Moslem leaders have threatened to challenge British laws against polygamy under Article 8 of the ECHR which guarantees respect for a person's 'private and family life.'
If a Conservative Government wished to bring back the Married Couples Tax Allowance they might well be vulnerable to a challenge on the basis that unmarried partners should be entitled to the same allowance.

Government Ministers have taken to describing suggestions such as these as alarmist. The truth is they do not know. They cannot know. Nor can anyone else.

But it is beginning to look increasingly clear that the £60 million which the Government have set aside for the first year in which the Act is in force (nearly £40 million of it for legal aid) are most unlikely to be enough.

AN ALTERNATIVE APPROACH

The most common argument in favour of the Act is that it 'brings rights home.' By this its supporters mean that since the Act could in any event be relied upon in an appeal from the English Courts to the European Court of Human Rights it is much better to allow English judges to apply it themselves. Indeed in presenting this argument the impression is sometimes given that the new jurisdiction of the English Courts will in some way replace the jurisdiction of the European Court of Human Rights. That is of course quite untrue. The right to appeal to the ECHR will remain.

I would concede that the existing situation - or rather the situation that existed before Monday of this week - was not ideal.

The ECHR does sometimes reach decisions which are very difficult to understand and sometimes cause considerable frustration.

But there is a remedy for this which the last Government was pursuing. The ECHR recognises the existence of what it calls a 'margin of appreciation.' Bt that it means that will make some allowance, in applying the Convention, for the local circumstances and traditions of the country from which the appeal is brought. The last Government had embarked on a campaign to increase this margin of appreciation so that the Court would give greater leeway to countries to decide things for themselves.

Now the very future of the margin of appreciation is uncertain. Academic controversy rages on to whether our courts will apply it. And the ECHR is much less likely to apply it to decisions of our Courts than to decisions of administrative bodies.

And of course this leaves out of account the inevitable and increasing politicisation of our judges. How long, if the Act remains in force, will our present system of selection of judges survive? How long before the political backgrounds of candidates for judicial office become subject to Parliamentary scrutiny? How long before we see demands that these judges submit themselves for election?

Nothing in what I have said today touches on the desirability of safeguarding human rights. Conservatives have a noble record in this field. The crucial question is who is the best guardian of these rights and how can they most effectively be protected.

The most damning verdict on the Human Rights Act comes from a senior Scottish judge, Lord McCluskey. He said the Act established:-

"A field day for crackpots, a pain in the neck for judges and legislators and a goldmine for lawyers."

I respectfully agree.