Today that situation has been virtually reversed. Judges have increasingly required
discretionary power to be in conformity with standards of legality, procedural fairness
and rationality – the so called ‘grounds’ of judicial review. In so doing, they have
been chipping away at an essentially ‘political constitution’ and have confounded
allegations of their inherent conservativism by managing, with majestic equality, to
provoke the ire of politicians of all political persuasions whose decisions they have
overturned. Procedural rights have been ceded to welfare recipients, and in all
corners of public administration. In 1998 the Human Rights Act required all public
officials to accord the procedural and substantive protections of the European
Convention on Human Rights to all. Under European Community Law, and under
the Human Rights Act, Parliament has conceded that judges can review Acts of the
UK Parliament. Under European Community Law such legislation can be disapplied
( a polite term for struck down). Under the Human Rights Act, the courts may merely
declare the legislation incompatible with the European Convention on Human Rights,
but the government will normally accept that ruling.
This is all a remarkable turnaround. Is democracy diluted as a result? Is our hardwon representative democracy seriously threatened by legal hegemony, the
overreaching of unelected judges and an indulgent and selfish human rights culture?
The answer in my view is clearly no, but myths to that effect abound. Let me dispose
of a few of them: The first is that these changes – this limitation of government and
the extension of law and legal techniques – were driven by the Bench, by activist
individual judges – beginning with Lords Denning and Reid and followed by a flock of
judicial sheep in the clothing of Woolf et al- not to mention Steyn, Lord Tom Bingham
and all.
We need to recollect, however, that the first nudge in the direction of the need for
procedural justice came from Parliament, readily implementing the proposals of the
Franks Committee which recommended that the tribunals and inquiries of the welfare
state should no longer be seen to be located in the realm of policy, but in the realm of
justice. Aneurin Bevan would not have been pleased. Yet in the 1960s it was Parliament that enacted the Tribunals Act to judicialise Bevan’s and other schemes.
Laws promoting equality in matters of race and gender in this country all have their
origin not in activist judicial decisions but in Parliament’s laws.
The Human Rights Act is similarly awash in myth and misrepresentation. The Lord
Chancellor in a speech a fortnight ago rightly debunked some of the myths about that
Act in the popular press (such as rumours that it would prevent the filming of school
nativity plays). Even today we see a Minister seeking to lay the errors of public
administration upon the licentiousness of the judicial interpretation of the Act. The
greatest myth, however, and one initially perpetrated by some academic lawyers, is
that the principal effect of the Human Rights Act is to transfers power from our
elected Parliament to unelected judges. This too is rhetoric calculated to mislead.
The Act seeks first and foremost to ensure that the rights and respect for the
individual, procedural and substantive, which are enshrined in the European
Convention permeate all our public decisions. Although the judicary are the ultimate
arbiters of whether or not Convention rights have been respected by public officials,
cases that reach the courts are the tip of the iceberg and the real impact of the Act
can be assessed not through the decisions of judges alone, but by looking at the
wide variety of our institutions, from regulatory bodies through to universities, where
past practices have been systematically audited and adjusted in order to ensure
conformity with Convention rights. It may be that some of those rights have been too
broadly or defensively interpreted, but the overall the result has been to ensure that
the core values reflected in the Convention – core British values – permeate all our
decision-making institutions.
If we look at Parliament’s record alone over the past few years we again see that
there has been no wholesale reallocation of power from the elected legislature to the
unelected judiciary. The majority of Parliament’s statutes scarcely impinge on any
Convention right. Of those that do, only a fraction end up in litigation, of which only a
small percentage again are declared incompatible with convention rights. Any
empirical investigation will show that there is still a considerable area of socioeconomic choice untouched by the Convention. When the courts do review
legislation for conformity to the Convention they are fast developing a sensible
modesty about the limits of their own institutional capacity to decide certain matters –
displaying due deference (some would say undue) on questions in which they have
no expertise, or matters which are essentially managerial or involve the allocation of
resources. Of course there are issues on which the judges rightly declar Convention rights to have been infringed, and which will not please everyone, but
what has been so notable is the fact that increasingly the initiative for Conventioncompatible legislation has come not from the courts – these so-called usurping
judges – but from Parliament itself. Three examples of this are the introduction of
civil partnerships, the outlawing of age discrimination and the Constitutional Reform
Act which reinforced the separation of powers and independence of the judiciary in
this country by removing the judicial powers of the Lord Chancellor, transferring the
House of Lords appellate committee to a new Supreme Court and establishing the
Judicial Appointments Committee. There has not been any conscious ‘partnership’
between the courts and Parliament. Some say that there is or should be. I say there
should not be, in the separation of powers. But there has been an indentity of aim.