Increasingly muscular Supreme Court good for human rights

3 August 2010 by

Happy birthday!

The UK’s new Supreme Court has reached the end of its first term, leading to some interesting discussions about its future from both practical and philosophical perspectives. From a human rights angle, a well-tooled and robust Supreme Court which acts to keep the government in check is good for everyone.

On a practical level, the UK Supreme Court Blog has posted on the stark warning from the UKSC’s chief executive, Jenny Rowe, to the effect that the Government’s proposed budget cuts could cripple the new court after only a year in operation. The UKSC Blog reports that Jenny Rowe, the court’s Chief Executive, has said she is not sure where the axe will fall but that “since casework (i.e. the hearing and determination of appeals) was the Court’s “priority“, it would be the Court’s public education and outreach programmes that would be most vulnerable.

This would be a great shame as the court’s accessibility – in comparison to its difficult to find and poorly resourced predecessor – was one of its major selling points when it was decided that tens of millions of pounds would be spent in upgrading it. In fact, it is a pity that the rest of the court system has not followed suit.

Advances have also been made by the UK’s new highest court of appeal in respect of judicial openness. The court is open to TV cameras (not that many broadcasters have used the opportunity) and judgments are available online along with instant press summaries. This is streets ahead in terms of public access to current law over the internet, as compared to the continuing lack of an up-to-date statute database (see yesterday’s post). As the Guardian reminded us in a glowing editorial this morning, openness is not just a guideline for the court, it is a statutory requirement:

The Constitutional Reform Act 2005, which gave birth to the court, requires that it is “accessible” and that its rules are “simply expressed”. The law is rightly complex, but any attempt to make it less alienating, and hence more open, is to be applauded.

Increasingly muscular

Another interesting aspect of the UKSC Blog post was the transcribed comments from an end-of-term report on the Today programme by legal affairs analyst Clive Coleman. The comments reflect the expectation that rebooted Supreme Court will take on an increasingly more visible and muscular role in relation to challenging government policy. Most interesting are the comments of Lord Phillips, the head of the Supreme Court, who said:

if Parliament did the inconceivable, we might do the inconceivable as well. If Parliament enacted legislation which caused a public outcry because it breached some fundamental constitutional principle, then we might well react, although this would be a consitutional crisis and we are nowhere near that kind of situation at the moment.

This mirrors the comments that he made in a speech in April to the effect that if Parliament chose to repeal the Human Rights Act 1998, which was a very real possibility pre-election, the courts may choose to enforce it anyway. His argument was that a limited number of acts of parliament – including the Human Rights Act – might soon be seen to have attained in law the status of “constitutional statutes”. This only applies to a handful of laws, but means that judges can apply those laws in ways which are unambiguously contrary to the will of Parliament.

The court and its judges have also sought to emphasise that it really is “supreme”, particularly over the European Court of Human Rights. As Lord Hope said on the Today Program:

We are not obliged to follow Strasbourg. Our task in every case is to consider whether we can apply the judgments from Strasbourg in our legal system, and there are instances when we say we can’t do that because they have not explained themselves sufficiently clearly. One of the advantages of the new system is that we can explain in our judgments where we think they are falling down, and if it wasn’t for the Human Rights Act we wouldn’t be able to do that

This sentiment echoes the January 2010 decision of the Supreme Court in R v Horncastle ([2009] UKSC 14; [2010] 2 WLR 47), in which Lord Phillips said “There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course” (see the UKSCB post). Lords Judge and Hoffmann have also made similar points in the two most recent Judicial Studies Board lectures (see our post) to the effect that the European Court of Human Rights has aggrandised its jurisdiction recently and domestic courts should not take its judgments as the final word on domestic law.

The power of judges has certainly grown since the coming into force of the Human Rights Act in 2000, with courts regularly criticising laws which are not human rights compatible or irrational. This was bolstered by the introduction of the Supreme Court, the aim of which was to move the UK closer to a true separation of powers system. However, this has not as yet led to a genuine confrontation between the Supreme Court and the government, and it is difficult to see one arising in the near future. The courts can still only effectively advise the government in relation to statute law; if a court rules that a statute or policy is not human rights compliant then it can “quash” the offending law, but the government is then free to ignore its recommendation. The arrangement works because in the most part the Government will go on to adopt recommendations from the courts.

This slightly uneasy relationship has worked up to now, but it is not that difficult to imagine a genuine confrontation arising in the future; for example, if the government’s commission to investigate the Human Rights Act chose to restrict certain rights. This would probably lead to a constitutional crisis, although since the UK as yet has no written constitution, it is hard to see how it would then be resolved. Most likely, in the great British tradition, the resolution would arise through another uneasy fudge which would leave the situation unclear for a further decade or so when the next constitutional crisis occurred. In the mean time, the increasingly powerful Supreme Court will go on ensuring that statute law is properly scrutinised without having to reach a stage of crisis. Long may this continue.

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