UK Law Articles
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The Times
October 15 1999
Judges 'must not stray into politics'
BY FRANCES GIBB, LEGAL EDITOR
JUDGES must not stray into the political arena when the new Human Rights Act comes into force, Cherie Booth, QC, said yesterday.
"We don't have elected judges here, for which I am grateful," the Prime Minister's wife told a conference in London. "But that does place a special responsibility on judges not to stray too readily into politics."
Under the Human Rights Act, 1998, which enshrines the European Convention on Human Rights in British law, judges will find themselves making more socially and politically sensitive decisions. Ms Booth, a part-time judge, said that the elimination of social injustices was not the function of the judiciary but of a democratic legislature.
Questions of policy on issues such as crime, social welfare and tax were the primary responsibility of the legislature. "Judges are not the best placed to decide what taxes there should be or not in the Chancellor's Budget."
Addressing a conference on the Human Rights Act organised by Justice, the human rights group, with Sweet & Maxwell, the legal publisher, Ms Booth cautioned against what had happened in the early years of the US Supreme Court when it "usurped the legislature on issues such as children's working hours".
She said: "We don't want to repeat that experience. One of the most interesting challenges will be for the judges to develop a doctrine of judicial restraint, which recognises the role judges have in applying the principles of the convention but gives due deference to the organs of state who are answerable to the people." The Act would make the task of judges clearer, she added. They would have to be explicit about what they did and about their role in protecting rights.
Lord Lester of Herne Hill, the Liberal Democrat peer regarded as the architect of the Act, said that judges were the least dangerous branch of Government when it came to protecting individuals and minorities against tyranny and abuse. But if judges indulged in a form of "judicial Caesarism" by usurping the role of Parliament or government, it could be a "most dangerous breach since judges are not elected by the people nor directly accountable to Parliament".
Courts were well placed to do justice in the cases before them. But they were not well placed to fashion generalised remedies where a problem needed executive or legislative solutions, he said. In such cases, judges should provide a "vital spur to action by government or Parliament, rather than taking over the role of government or Parliament."
Sir Stephen Sedley, the Court of Appeal judge, said that human rights should not become an opportunity for strident adversarial claims. Instead, they should be regarded as a "vindication of personal autonomy and a shield against abuse of power".
