John Jackson (London, Mishcon de Reya & Unlock Democracy): The Hunting Act, a controversial statute dealing with a controversial topic and imposed by the House of Commons in a controversial way, continues to generate important constitutional questions as it is challenged in the courts. These now include the role of judges, the legality of parliamentary sovereignty as it currently exists and the future of our constitution itself.
In mid-November the Crown Prosecution Service agreed that two prosecutions under the Act should held in abeyance until the High Court had ruled whether the Act, as drafted, required an accused person to prove that he was hunting lawfully within the exemptions defined in the Act or whether it was up to the prosecution to prove that he was not. In a country which has long been proud of the presumption of innocence, this is a pretty fundamental point.
Yesterday, on 28th November the House of Lords (5 Law Lords sitting) delivered its judgements on assertions by the appellants that the Hunting Act is incompatible with the European Convention on Human Rights or inconsistent with the Treaty establishing the European Community. For a range of reasons the appeals were dismissed but what was said in relation to article 8 of the Convention is of considerable constitutional importance.
As Lord Bingham said in his judgement the purpose of article 8 “is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose.” He continued to show that , in his view, jurisprudence developed by the European Court at Strasbourg had not gone so far in its interpretation of article 8 to include in the private sphere any activity taken sufficiently seriously by those who engage in it. He thought the limits set by the Strasbourg court would not include hunting and that those limits should not be extended by a British court.
Lord Brown agreed with Lord Bingham but, echoing Lord Rodger, added “I strongly wish that it were otherwise and for my part would hope to see the jurisprudence governing the scope of article 8 further developed by the Strasbourg Court..... Why should it not encompass a broad philosophy of live and let live..? ... Why should people not be free to engage in whatever pursuits they wish.... pursuits, that is, central to their wellbeing, as hunting was recognised in the courts below to be in the lives of some of these appellants.... unless there is good and sufficient reason to forbid it?”
Lord Brown returned to the point of “good and sufficient reason” when considering the justification for the ban imposed by the Hunting Act. He said “The democratic process is a necessary but not sufficient process for the protection and vindication of human rights. Sometimes the majority misuses its powers. Not least this may occur when what are perceived as moral issues are involved.” He continued “Were the appellants’ article 8 rights engaged here, I would have declined to find the hunting ban justifiable. I simply cannot regard the ethical objection of the majority as a sufficient basis for holding the ban 'Necessary' ".
Yesterday evening, on the day of their publication, these remarks by our Law Lords were commented on in a lecture given by Jeffrey Jowell, Research Professor of Public Law, University College London.
He was discussing the increasingly topical question of the limits of judicial authority. Lord Justice Laws who presided over the evening commented that we are moving from a “majoritorial” society to a constitutional society. In so saying he was echoing his already published view that the constitution would be undemocratic if it gave all the power under it to the elected government.
If we are indeed at the beginning of a transition from a representative democracy to a constitutional one in which the constitution is the highest law and the sovereignty of Parliament is curtailed, then this will continue to put a spotlight on the judges in terms both of their role and their qualification. I have remarked recently on the constitution of South Africa. There they have a separate court to consider all constitutional matters. And the judges, appointed by the President, have wide social, as well as legal, backgrounds.
Beneath the extraordinary turmoil and ups and downs of headline politics, the tectonic plates of the UK’s constitution are also in movement and here is an example from which we can all learn.
