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17 February 2011 by

The Telegraph has an editorial this morning entitled “Common sense needed in human rights review“.

It refers to the Prime Minister’s answers to questions in parliament yesterday. In reply to a question about the supreme court sex offenders ruling, which has led the government to change the law but which apparently makes Philip Davies MP’s constituents “sick to the back teeth” of human rights, the PM responded:

My hon. Friend speaks for many people in saying how completely offensive it is, once again, to have a ruling by a court that flies in the face of common sense. Requiring serious sexual offenders to sign the register for life, as they now do, has broad support across this House and across the country. I am appalled by the Supreme Court ruling. We will take the minimum possible approach to this ruling and use the opportunity to close some loopholes in the sex offenders register.

The home secretary also said that she was “appalled” by the ruling. As I said yesterday, it is depressing to see senior MPs attacking judges in this manner.  Comments made for short-term political gain – passing the blame for an unpopular government policy to so-called unelected judges – are likely to corrode public confidence in justice in the long-term. A Guardian editorial this morning puts this argument well.

The Prime Minister also repeated a pledge which was made in the coalition agreement last year:

I can also tell my hon. Friend that a commission will be established imminently to look at a British Bill of Rights, because it is about time we ensured that decisions are made in this Parliament rather than in the courts.

This is nothing new. The Ministry of Justice’s business plan stated that the commission would be established by the end of this year. Returning to the Telegraph, the newspaper laments the “inexorable rise of so-called judicial activism“, a subject addressed by the head of the supreme court in a recent speech. The Telegraph argues:

The growing propensity of unaccountable judges, both here and in Strasbourg, to overturn legislation passed by an elected Parliament is undermining public confidence in the rule of law.

Compare this to Lord Phillips in his speech:

When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament

Phillips is right and the Telegraph is basically wrong. The courts have no power to overturn primary legislation, although it can overturn secondary legislation (for example, regulations) if they do not fit within the powers granted by primary legislation, which is passed by Parliament. But it is no surprise, given the comments of the PM and Home Secretary, that this confusion has arisen. As the excellent Law and Lawyers blog put it:

Parliament has told the judges to apply the European Convention and Parliament has permitted judges to make a declaration that a legislative provision is incompatible with the Convention. The judges have not granted themselves such powers and such powers do not exist in the English common law system.

The confusion has led the Telegraph to ask that the bill of rights commission also extend to

an examination of the role and accountability of the Supreme Court, which is just over a year old and still testing the extent of its power and authority.

This would be a completely different task, and certainly outside of the stated intention of the bill of rights commission. In any event, it is questionable whether the supreme court is indeed any more activist than it was when it was a House of Lords committee, although it is probably more visibly independent of government, which was the point.

It is hard to see what good will come of the constant attacks on judges, save for turning the public against justice and human rights, which may serve a political purpose for the Conservative party in the next election if they campaign (again) on platform of scrapping the human rights act. It will also allow the government to blame judges for unpopular policies, until the public spots the ruse. But the collateral damage of this strategy will be to the rule of law. Which is bad for everyone.

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  1. Andreas let me ask you “how do you define human (minority)rights?” personally. Are you one of the 60% or the 40%. Because honestly if you belong to either group yo would shout also for human rights.

  2. Lloyd Jenkins says:

    Like Corruptedmind above I find this all a little upsetting. David Cameron isn’t an idiot: he’s well aware that if Parliament wants the status quo it can just pass legislation that is explicitly exempted from the remit of the HRA. If he’s right then such legislation would be rights-compliant and so a good idea.

    It seems that Cameron has picked up where the Labour ministers left off by trying to pick up cheap political points at the expense of the rule of law.

  3. Diogenese says:

    From a purely “human” perspective, I am concerned that the abuse of Human Rights legislation by a minority in such blatant and dramatic fashion that we’ve all seen in the media in recent years is leading to a demonisation of the basic rights process.

    In having these abuses thrown in our face constantly, it leads to being “sick to the back teeth” of the whole issue of human rights which will inevitably lead to governments abolition of the rights legislation with the full support of the nation of “common sense” people who want to see an end to the abuse so badly they fail to account for what will happen without some form of protection.

    We already have “terrorist” legislation that has removed many of our God given and inalienable rights which, quite frankly, have nothing whatsoever to do with common sense or justice. The Proceeds of Crime Act 2002 was meant to claw back money from big crime bosses dealing in drugs, prostitution and the like and we’ll all agree that this is a good thing but when that same legislation is being used by minor civil servants against pensioners owing £65 in council tax, we have to be glad that there is some human rights legislation in place to redress the balance.

    We must think carefully before advocating for the removal of controls and checks against the government, the judiciary and local councils lest we find ourselves completely without a voice and unable to have our grievances heard.

    1. Old Dog says:

      I am not sure what ‘abuse of Human Rights legislation by a minority in such blatant and dramatic fashion that we’ve all seen in the media in recent years is leading to a demonization of the basic rights process’ you refer to? Human rights law cannot be ‘abused’ anymore than any other law, it can be applied correctly or not. To suggest otherwise would be like saying those who abuse the right of libel? Most high profile media cases that mention the HRA, such as prisoner wanting porn, pupil suing school having been expelled from class, etc are incorrectly reported in our anti HRA media, even the former home secretary Malcolm Howard gave wrong facts when speaking to Parliament on alleged abuses of the HRA, it is this climate that leads people to believe the act may have its absurdities and should be scrapped.

    2. Diogenese says: “I am concerned that the abuse of Human Rights legislation by a minority […] is leading to a demonisation of the basic rights process.”

      But it’s the point of human rights to be used by a minority!
      If they were in the majority, they would just change the law in question without any need to refer to human rights legislation or international conventions (which this country has voluntarily become a member of).

      Democracy by itself without any human (minority) rights is not such a good thing really: If 60 % of the population decide that 40 % will be enslaved, that’s democratic.

  4. Corrupted Mind says:

    Sigh. I must confess to this all becoming a little heartbreaking. Parliament and the courts are supposed to work in partnership. However another day, another bout of sickness endured by the PM (surely he should see a doctor) and another outcast group without any popular support gets it in the neck. My surprise is that the issue hadn’t arisen earlier – how can it be correct that a person who commits an offence aged 11 (as in the case of F) remains on the sexual offenders list for life without the possibility (or the existence of a mechanism) that might have them removed? Even if the public finds this abhorrent isn’t it the role of Government to protect the “weak and vulnerable” (I’m guessing that 11 year olds fall into this bracket)?

  5. John Hirst says:

    It would appear to me that there is confusion over the irrational Commons sense and the rational common sense of the Judiciary.

    David Cameron is advocating a rebalancing of the Separation of Powers between the Executive, Parliament and Judiciary, in favour of the Executive. However, this move would not create a balance at all but would instead create an imbalance.

    What David Cameron is offering the people of the UK is rule by dictatorship instead of democracy. In my view, it would be dangerous to let someone like this remain in office until 2015 let alone after that date. Perhaps, we should all learn to walk like an Egyptian?

  6. Old Dog says:

    It is indeed depressing that the government continues to feel the constant need to publicly criticise the decisions of the Supreme Court (and others) without knowing or at least stating all the facts! I am also interested in David Cameron’s view that it should be Parliament that reviews a ‘British Bill of Rights.’ Is he in fact calling for a scraping of any separation of powers? Does he want the legislative and executive who are of course in current our system fairly much one and the same, now does he also want to be the judiciary on fundamental rights, to be judge jury and law maker eh?…Very democratic I must say, why does the government have such a problems with explaining that human right law serves to curb the excess of government power?…Or would that just be too painful an admission from him!….The press have set out their stool against the HRA they feel it might just curb their excesses, such as reporting on Max Mosley, interesting, doubtful, salacious definitely, pressing social need….not a cat in hells chance!…..Interesting how the government keeps quite when decisions are made that they agree with, such as bank charge fees for normal current account customers…something the Government could and should have done something about!!..Please keep up this blog it is excellent..

  7. Public_lawyer1986 says:

    “Parliament has told the judges to apply the European Convention and Parliament has permitted judges to make a declaration that a legislative provision is incompatible with the Convention. The judges have not granted themselves such powers and such powers do not exist in the English common law system.”

    While this way of thinking is useful when seeking to defend the judiciary from laymen and our ridiculous MPs, it is quite clear that it is itself nothing but political rhetoric/spin. Without getting into the fundamental problems with such a claim, it is enough to point out that anyone well versed in British public law will be aware that a number of common law rights are said to exist and some of these quite clearly correlate to convention rights. Indeed, the most dominate school of public law scholarship is founded on such a claim!

  8. “an examination of the role and accountability of the Supreme Court, which is just over a year old and still testing the extent of its power and authority.”

    For all the bluster and “constitutional implications”, the introduction of the Supreme Court was a change of form rather than substance. It is still more or less the same bunch of law lords, exercising the same powers to decide the same sorts of cases under the same laws as before. They are just not called the Judicial Committee of the House of Lords any more. Trying to portray them as some sort of nascent experimental body, fumbling their way through judicial adolescence without proper parental guidance, is not only disingenuous, it is damaging to the rule of law.

    If the government can’t respect the courts, it can hardly complain if the rest of society sticks two fingers up.

  9. Adam Wagner says:

    Andreas – Hollie is welcome to do a guest post if she likes

  10. Why don’t we ask Hollie, the Human Rights expert: http://andreasmoser.wordpress.com/2011/02/09/human-rights-with-hollie/ ?

  11. ObiterJ says:

    Many thanks for your kind comment re my blog.

    Of course, even under common law the courts can rule secondary legislation to be ultra vires though, as I recall, examples of them so doing are few and far between. It might be useful for the judiciary to consider acting under an “English” power whenever possible as opposed to going for human rights on everything?? Just a passing thought !!

  12. Ralph Savage says:

    Bravo – it’s essential that the message of an independent judiciary which interprets and does not overturn primary legislation is emphasised or the government will attempt to strangle the courts even more.

    It doesn’t surprise me that this populist ‘up yours delors’ approach currently adopted by the ConDems is being lapped up by the media with no thought as to the constitutional facts at play here. Of course we must protect the public. How do we do that? By making sure the government does not directly influence the judiciary and vice versa.

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