Source: The Independent (UK)
Pubdate: September 19, 1997
Contact: letters@independent.co.uk

http://www.independent.co.uk/stories/C1909713.html

Donald Macintyre Can we trust the judges to make our laws?

We are on the brink of a constitutional change which raises questions
decidedly more fundamental than a Welsh Assembly. Next month the
Government will publish a White Paper incorporating the European
Convention of Human Rights into British law. The logic of this step is
irresistible. Even now, when it is faced with a ruling that is in breach
of the Convention, the British government invariably, if grudgingly,
conforms. The current immigration bill going through Parliament, for
example, contains in order to conform to a ruling by the European
Court of Human Rights belated provision for appeal against summary
deportation on security grounds. But it seems crazy that to seek
enforcement of the Convention, to which the UK has been a party since
1951, a citizen has to embark on the tortuous and often prohibitively
expensive process of appealing to the European Court of Human Rights in
Strasbourg, on which no British judge sits, and which takes around five
years to reach a decision.

Anything more calculated to deter is difficult to imagine. Throughout
the wide spectrum of nonConservative opinion, and among some
Conservatives as well, there is now agreement that it should be up to
British courts, in the first instance, to apply the Convention. But
there has been a protracted debate inside and outside Whitehall over
just how it should be incorporated. Should the new system be like that
in Canada, where the courts have the power to strike out laws made by
parliament if they regard them as an infringement of the nation's
Charter of Rights and Freedoms? Or should it be like that of New Zealand
where the courts interpret the law as far as possible in accordance with
the country's Bill of Rights, but cannot overturn statutes which they
decide do not. In other words, in New Zealand, though not in Canada, it
is still up to parliament and not the courts to change the law.

Here ministers have finally resolved the argument in favour of the more
limited New Zealand model. During a lengthy discussion of the issue at
the first meeting this week of the joint LabourLibDem Cabinet
Committee, Paddy Ashdown and his colleagues were assured by the
ministers that the White Paper has not yet reached its final draft. But
Lord Irvine, the Lord Chancellor, has always been a New Zealand man.
Even Jack Straw, the Home Secretary, who had at one time leaned towards
the more radical Canadian option, has been persuaded that it would be
better at least to start with the more modest form of incorporation.
It's still possible that, as in Hong Kong, the courts will be given some
power to repeal sections of previous legislation. But Tony Blair's
willingness to devolve power whether to the Bank of England, to a
Welsh assembly, or a directly elected mayor of London will not extend
to handing judges the power to render null and void laws made henceforth
by his government.

This will upset a lot of people. Many of those in favour of
constitutional reform believe that the only way to protect individual
rights is precisely to give the courts the absolute right to strike down
laws which are judged to undermine them. This is seductive. And
especially after the dark years in which only judicial review restrained
recidivist offenders like Michael Howard from chronically exceeding
their powers. The dangers now may be different but they are potentially
even greater. Wouldn't you rather have your freedom in the hands of
those nice, liberal judges, the Woolfs and Richard Scotts and Binghams,
than handed to a whips' office dedicated to the ruthless use of party
discipline to act as the chief engine of an elective dictatorship?

Seductive, but, for at least two reasons, not conclusive. The first is
that some rights have an awkward habit of conflicting with each other.
Given the failure of successive governments, supine in their fear of the
power of the press, to act on privacy, incorporation may produce a
welcome body of case law curbing press intrusion. But the ECHR right to
privacy could, on some occasions, conflict with the ECHR right to
freedom of expression. The right to abortion, freely legislated by
Parliament, could clash with an ultrastrict interpretation of the right
to life. Should, as in the US, rights to selfprotection make impossible
the postDunblane antigun legislation? And should rights of free
assembly always supersede, for example in Northern Ireland, the security
of the majority of citizens. This isn't a case against the enforcement
of rights; it is a case against leaving that enforcement entirely to the
unfettered and varying choices of individual judges. These decisions are
essentially political; do we really want to deprive elected politicians
of the power to make those decisions if they choose?

The other reason to hesitate is this: for all the highlydesirable
expansion of judicial review during the last 20 years against abuses by
ministers, judges haven't, in the round, proved themselves quite the
reliable liberals the reformers like to think they are. In the new
edition of his wonderful Politics of the Judiciary John Griffiths brings
up to date with the miscarriage of justice cases and the rulings
against the press in the 1980s his account of their record over the
last 30 years. On issues from race relations to police powers and
government secrecy, judges have been supporters, sometimes quite
creative and proactive supporters, of the "conventional, established
and settled interests". As one of the most eminent legal academics in
the country, Griffiths isn't disrespectful of judges just very clear
about where their role should begin and end. Michael Howard's sentencing
proposals may have been extreme; but elected politicians do have the
right to have a penal policy, even if judges don't agree with it. And is
their own record in using sentencing discretion really so perfect? "Far
more than on the judiciary," Griffiths writes, "our freedoms depend on
the willingness of the press, politicians and others to publicise the
breach of these freedoms and the continuing vulnerability of
ministers... and other interests to accusations that these freedoms are
being infringed." Especially at a time like this, when the media have
been seduced, and the executive's parliamentary majority is unhealthily
monolithic, it's tempting to turn wishfully to the judges, even
unelected judges appointed entirely by the government, and with
retirement ages of 75. But in the end judges are no substitute for
boring, imperfect old democracy.