1. Judges and Politicians

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Lord Bingham


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Session Info

For most of human history the interests of the communities in which we live have been dominant and have determined the content of the rules we live by. Those rules, relating mainly to family, property and physical injury, were designed to promote social stability – something of prime importance to community members and those that led them. The rules were known and openly applied ; the origin of what we call “the rule of law”.

More recently, the acceptance that social stability is dependent also on recognition of the rights of individuals (and their enforceability against the community as such) has spawned intense political debate centred on three questions:-

Who decides what is in the interests of the community?

Who decides what the rights of individuals are?

Who decides when those rights should be suspended in the interests of the community?

In our country with no codified constitution embracing entrenched rights and a government pre-occupied with the threat of terrorism, that debate is presently confused by the political decision to include the European Convention on Human Rights (a child of the Universal Declaration of 1948) in our Human Rights Act in a way designed to protect alleged parliamentary sovereignty against judicial interference. Our judges may only rule on the compatibility of legislation with the Act: they may not declare it unlawful.

But the debate is confused further by an assertion in the recent Constitutional Reform Act that the Rule of Law (undefined) is an existing constitutional principle. This obliges our judges to interpret legislation (and, presumably, deal with government action sanctioned by parliament) in a manner consistent with the Rule of Law as they, the judges, conceive it.

The potential incompatibility between these two positions is obvious. It is also constitutionally dangerous.

One way of avoiding the looming conflict between government, parliament and the judges that has been created is to expose the problem, its significance and possible solutions to informed and open public debate. That could help us find a way forward suited to the needs of a democratic society that values security and stability and is based on the freedoms and obligations of its citizens.

Chair: John Jackson (chairman of Mishcon de Reya)
Speakers: Sir Geoffrey Bindman (chair, BIHR)
  Lord Bingham (former Senior Law Lord)
  Keith Ewing (Professor, King’s College London)
  Juliet Gardiner (British historian and writer)
  Lord Goldsmith (former Attorney General)

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