Christopher Kingsland fears our judges will be seen as effectively initiating law, so becoming part of the political process
A basically good idea has been turned into flawed law
The much-heralded Human Rights Act will shortly be in force and is likely to have a profound effect on litigation between the citizen and the State. To justify any decision that adversely affects our individual interests, public authorities will, as a general rule, have to advance a more reasoned and thoroughly documented case than the common law has until now required.
Whether the common law would eventually have developed a similar system we shall never know. I suspect that it would. Tantalisingly, in the mid-1990s three distinguished administrative lawyers, Lord Woolf, Sir John Laws and Sir Stephen Sedley, contributed articles to the journal, Public Law suggesting that the principles of reasonableness and fairness were judicial creations and did not simply derive from the construction of particular statutes. But now that the Human Rights Act is upon us these great men are relieved from the stress of further treasonable ruminations.
I support the contents of the European Convention on Human Rights wholeheartedly, but I opposed the Bill during its passage through the House of Lords because of the adverse domestic constitutional consequences that I believe will flow from the manner of its incorporation into English law - in particular, the danger of our judges being perceived as part of the political process.
In this respect, I had, and retain, three particular concerns.
First, under the Act, our judges are not bound by the jurisprudence of the Court of Human Rights in Strasbourg; they need only have regard to it. In effect, therefore, the Convention, against which parliamentary statutes are to be measured, will become a self-standing Bill of Rights meaning what our judges say it means and not what those judges expressly charged with interpreting the Convention in Strasbourg say it means. It might have been better if the Government had simply produced a domestic Bill of Rights.
My second concern lies with the new rules, in Section 3(1) of the Act, on statutory interpretation in the context of the Convention. Courts must give effect to statutes in a way that is compatible with Convention rights "so far as this is possible to do so".
Ben Emmerson, QC, the distinguished editor of The European Human Rights Law Review and a great evangelist for incorporation, is reported as saying (The Times, November 26, 1998): "There is a major shift of power from Parliament to judges. They will, in effect, be able to rewrite sections of Acts by reading into them words that are not there and by massaging away any potential conflicts with the Convention."
If this is an accurate reflection of the new process of statutory interpretation, we are not so very far away from the world of Humpty-Dumpty. What price the democratic will of the people as expressed through a parliamentary statute?
Finally, what happens if, after applying the Section 3(1) test, it nevertheless proves impossible to construe a statute consistently with the Convention? The court then makes a "declaration of incompatibility" that will be swiftly followed by amendments to the offending statute, implemented by fast-track delegated legislative procedures in Parliament. Here the classic roles of legislator and judge in our constitution are specifically reversed and judges will be seen as initiating legislation - a role hitherto the preserve of elected politicians.
In this new world, therefore, our judges have the final say both on what the Convention means and what statutes mean - and where incompatibilities are incapable of being massaged away by judicial manipulation, they can, in effect, initiate the appropriate remedial legislation in Parliament.
These new responsibilities for our judges, I suggest, amount to a huge shift in constitutional power. I am in no doubt whatsoever that these powers will be exercised with the utmost probity and a profound appreciation of the scale of responsibility they entail. But will the judges' decisions on these matters have, in the eyes of the public, the necessary legitimacy in the eyes of the public?
In the past 30 years our judges have developed the common law principles of reasonableness and fairness to enable them to quash, prohibit or require the amendment of decisions by ministers and public bodies "be they ever so high".
Yet, despite restraining ministers who were democratically elected and constitutionally responsible to Parliament, the judges have prospered, with their legitimacy intact and their prestige enhanced. This is because they have been able to camouflage the immensity of the shift of power they have engineered between the executive and themselves by explaining their decisions in the language of statutory interpretation, as discerning the will of Parliament.
In future judges will no longer be able to disguise their more radical decisions by claiming that they are merely interpreting a parliamentary statute. Major social and political change will be seen to be judge- driven. In short, the fundamental problem posed by the Human Rights Act is about the authority of judges in a democratic society to take decisions that have hitherto been perceived to be the exclusive prerogative of elected politicians.
Will their decisions have, in the eyes of the public, selected as they are at present, the necessary legitimacy to generate the political and social change that will undoubtedly result? I hope they will, but I fear that they won't.
Lord Kingsland, QC, is the Shadow Lord Chancellor.