In today’s Daily Mail, former Lord Chief Justice engage again in hostile criticism of the Strasbourg Court originally made in the Bar Council magazine Counsel – and the aggrandising of power (my words, not his) by unelected judges there, over and above democratically elected Parliaments.
In this short post I plan to offer a few rejoinders, as the debate heats up.
He sets out his view that “the Human Rights Act did not give Strasbourg the right to impose its rule on Britain.” He’s quite right. It’s a domestic statute. The Act, passed in 1998, has nothing to say on the binding nature of the Convention, and more specifically Strasbourg law or judgments. It is true that s.2 requires judges to “take account” of such judgments – and there has been much ink spilled over whether this needs reform, to reclaim supremacy for the Supreme Court. The reason though that the UK is bound to implement European Court judgments in cases against us at least is Article 46 of the ECHR itself: “High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” Thus the state is bound as a result of its freely chosen and entered into international law treaty obligations in 1951 (in the second short-lived Attlee administration). That is we are – still – obliged to give some prisoners the vote i.e. we are required no longer to have an absolute voting ban that catches all, no matter the crime committed or length of sentence. It is simply arbitrary to debar or allow citizens to vote dependent solely on whether they happen to be in prison on day X.
That though is a digression. The point is that the fault lies at the door of the ECHR, not the HRA. Of course, both are under attack from certain elements in the Tory/UKIP party but a proper, and informed debate on Britain’s role in and relationship to the Council of Europe deserves better. Are we really going to join the club (current membership 1, Belarus) as the only European states not in it? The words of Groucho Marx spring to mind.
Another complaint is the unelected nature of the Strasbourg Court. This is simply not true. Unlike his UK brethren, European Court judges are elected by the Parliamentary Assembly of the Council of Europe and I’m very grateful to Andrew Cutting of the Council’s Brussels office for this link which explains it a little more.
Of course, UK judges do not need to be elected, it would be argued, as they are always subject to the overriding democratic power of the Westminster Parliament. That to me seems to be a little off the point in this context. Yes, Parliamentary Sovereignty means that whatever decision a judge reaches is subject to possible overturn by MPs but that only obtains when legislation is the subject of legal challenge. If instead judges are holding exercises of ministerial discretion to be unlawful – on standard judicial review grounds – as with last week’s legal aid challenge there is no question of Parliament’s sovereignty being impugned. In short, it seems a little rich for a British judge to complain about the powers of unelected judges when they have been not simply silent but positively approving of the expansion of judicial controls – sometimes even praying in aid the nebulous common law constitution, which – by definition – must lack any form of democratic imprimatur.
Last, a further implicit complaint is the undemocratic nature of human rights, something made explicit as a criticism by Chris Grayling late last year: “The European Court of Human Rights has lost its legitimacy in the UK by doing things that frankly the people of this country and their elected representatives do not want.” Surely that’s the point – if they were subject to the vicissitudes of the 51% temporarily constructed, they’d hardly be fundamental things at all, more the benefits of majoritarian largesse, at the beck and call of whoever was in power. You don’t have to be Rawls or Dworkin to think that’s nonsense on stilts!