17 February 2011
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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