John Jackson (London, Mishcon de Reya & Unlock Democracy): It's unfortunate - and rather worrying - that the article in ConservativeHome on the opposition's approach to the role of the judiciary in today's Britain, by Nick Herbert MP (who is the Shadow Minister of Justice), displays such a shaky acquaintance both with the law and with the principles supposed to underly our present constitutional settlement. Especially because it does make some good points. In particular, Herbert is right to remind us of the words of Justice Antonin Scalia (of the US Supreme Court), who said:
if judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate - rather than merely determining the meaning of democratically adopted texts - then judges will be made politically accountable
This resonates with what may be happening in the UK today - particularly if judges invent legal principle to support judgments they wish to make whilst in a state of moral outrage. The recent judgment by Lord Justice Moses in the SFO/BAE Systems case may turn out to be an example of this - we will see what the House of Lords says, now that an appeal has been launched by the SFO (and Iain Dale too will learn about their view of the Moses judgement).
Herbert is also right to point out that there are problems arising out of the way in which the European Convention on Human Rights (ECHR) has been incorporated into British law. Because of the anxiety of the Blair government to maintain the concept of parliamentary sovereignty, the judges can only make findings of "incompatibility" with the ECHR, and may not strike down legislation as the Supreme Court can in the US. What happens if they do make such a finding? That is entirely a matter for government - and parliament - to decide. Perhaps because our judges do not have full responsibility, they have been more inventive and expansive in their interpretation of Strasbourg Law than would otherwise have been the case.
However, one of the areas where Herbert has gone off the rails is in his apparent belief that this problem can be solved by the creation of a British Bill of Rights, and, by implication, withdrawal from the ECHR. The European Convention is based on a treaty we have entered into as members of the Council of Europe. This goes much wider than the members of the European Union, and reflects international agreement on fundamental human rights. To withdraw from such a treaty is not something to be undertaken lightly or hinted at between the lines. Arguably, it would be an international catastrophe for the UK, removing any international credibility we might still have as supporters of fundamental rights around the world.
Another area where he is seriously misinformed is in relation to the legal challenge which followed the passing of the Hunting Act. This is a challenge which I know well, being both the first named applicant in the case, and, at the time, the chairman of the Countryside Alliance. The idea of the case was not to challenge the validity of the Hunting Act - it was to challenge the use made of the 1911 Parliament Act by the House of Commons to extend its powers (through means of the 1949 Parliament act) by further restricting the ability of the Lords to delay legislation.
If the application had been successful, all acts which had come into being as a result of the 1949 powers, including the Hunting Act, would have been unlawful. The constitutional significance of the application even being heard is that the courts took the view that parliament was also subject to the rule of law, and had to comply with the laws that it had itself made. Although the application failed, the fact that the matter was accepted as justiciable should be welcomed by all of us who believe that no-one, including parliament, is above the law. Herbert - and those advising him - would do well to read two careful speeches given by Lord Bingham on the relationship between the rule of law and parliamentary sovereignty. Bingham refers to and disagrees with remarks made by certain of his senior colleagues in the parliament act case. He might also read another speech (opens .doc) by Lord Bingham arguing the case for a written constitution.
The third serious error by Mr Herbert is one of omission. He says, "Parliamentary sovereignty means that Law is made, and if necessary unmade, by elected Members, who are democratically accountable to the people." In common with practically every other politician, he ignores the fact that the combination of political parties and the whipping system have kidnapped what was intended to be representative democracy, and damaged seriously the notion of democratic accountability. At general elections we vote for party policies, not representation. And the political parties concentrate their firepower on a small part of the electorate, residing in marginal constituencies. MPs might like to think that they are democratically accountable to the people, but this is not what most regular people themselves believe to be the case.
Many of us believe that there is indeed a strong case for our own bill of rights and that this should not conflict with internationally accepted standards. The best way to achieve such an outcome is for it to be an important part of an overall, written constitutional settlement to be arrived at in the democratic way that justice Antonin Scalia clearly had in mind.
