Human rights and civil liberties II: The danger of judge-made law

This is a response to a post by Roger Smith of Justice on the relationship between human rights and civil liberties.

Dominic Raab: Roger Smith makes a powerful case for the debate on civil liberties, and human rights more generally, to be viewed within the framework of the separation of powers – demarcating a system of checks and balances between the executive, legislature and judiciary. But, where does that lead us?

The attraction of the separation of powers lies in the protection of a democratic architecture comprising three – self-reinforcing – pillars: personal freedom, the rule of law and democratic accountability. That requires each branch of government to be held in check. None can be allowed to overreach or dominate the others – and that includes the judges. As Monteqsuieu pointedly observed:

‘Nor is there liberty if the power of judging is not separate from legislative power …. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be legislator.’

Mr Smith points to the growth of judicial review since the 1970’s to show how the judges can effectively guard against abuse of executive and administrative power – by governments and quangos. Whether judges overreached themselves then remains a matter for debate. But since they could always be overruled by Act of Parliament – including the way they interpreted legislation – it never presented a serious threat to democracy. It is also somewhat ironic to hear the judiciary now championed by the liberal-left, having been lampooned during the 1980’s and 1990’s as a conservative patsy. Will Hutton, for one, associated the judiciary with an almost indivisible conservative enemy, accusing the judges of ‘being more executive-minded than the executive’, and bemoaning that ‘the judiciary and Conservative Party hierarchy largely sharing an education, culture and outlook’. How times have changed. 

Regardless, the preservation and proper exercise of the judicial function is critical to legal certainty and the wider rule of law in any democracy. But it is not just the executive – and loose-tongued politicians – who threaten it. Judicial independence is also threatened by judicial legislation – the assumption of law-making powers by judges, without any means of holding them to democratic account. This is particularly relevant to human rights, which are meant to have a trump card constitutional status. Judges must uphold the personal freedoms guaranteed by law from intrusion by the state – but it is not their job to create new rights, or stretch the scope of existing ones.

Mr Smith supports the European Convention on Human Rights. So do I. But, it is precisely on the grounds he champions – separation of powers – that the Strasbourg Court has been found wanting. In 2007, less than half of the judges had any prior judicial experience before joining the Strasbourg bench. This has a damaging impact on the exercise of judicial functions.  In 2003, a report by a European panel of judges and jurists – including Lord Lester and Lord Justice Sedley – criticised the ‘politicised processes currently adopted in the appointment of [Strasbourg] judges’, noting that ‘judges selected will lack the requisite skills and abilities to discharge their duties’ and warning of the ‘adverse effect’ on the Strasbourg Court’s credibility. The net effect is ‘a Court less qualified and less able to discharge its crucial mandate than it might otherwise be.’

As detailed in The Assault on LibertyWhat Went Wrong With Rights, the result has been massive judicial legislation since the 1970’s – without any means of democratic accountability. That this has taken place is hardly contentious. Most human rights text books extol the judicial development of the Convention as a ‘living instrument’. The question is whether it is a good thing or not. There can be different answers to that question – but not from those who claim to be serious about the separation of powers. It represents a naked usurpation of law-making power by the judicial branch.

Which leads us on to the Human Rights Act (HRA) – which fails every test set by the separation of powers. The HRA was designed as a compromise between the need for greater judicial protection of rights and concerns about democratic accountability via Parliament. The reality is a dangerous fudge that falls between both stools.

On the one hand, if a court declares legislation incompatible with the HRA, it cannot uphold the right or strike down the offending law, so the individual is not properly protected. As Mr Smith notes, the challenge to the permanent retention of innocent people’s DNA only succeeded in Strasbourg after seven years of litigation – making a mockery of the claim that the HRA has brought rights home. Where judges rule that there is a conflict between the will of elected law-makers and personal freedom, Ministers can rush through changes to the law by order using a fast-track procedure. So, there is barely any real democratic scrutiny either.

On the other hand, the HRA exacerbates Britain’s exposure to judicial legislation, because UK judges are forced to match the haphazard case-law from Strasbourg. This is not legally required under the Convention, because there is no doctrine of precedent in Strasbourg, and many other countries take a different approach. In addition, UK courts have been granted wide scope to re-write legislation, in order to try and avoid having to declare it in incompatible with the HRA. The compound effect is to ride roughshod over the separation of powers. As one former Parliamentary Counsel explains, the HRA ‘instructs the courts to falsify the linguistic meaning of other Acts of Parliament, which hitherto has depended on legislative intention at the time of enactment’ – giving domestic judges a broad licence to re-write British law to give effect to new rights, made in Strasbourg.

In sum, the HRA has not protected our freedoms and undermined our democracy. A Bill of Rights would offer the opportunity to strengthen protections of our fundamental freedoms, whilst delineating a far clearer separation of powers between government, Parliament and the courts.

Dominic Raab is the author of The Assault on Liberty – What Went Wrong with Rights (4th Estate). An FCO legal adviser between 2000 and 2006, he is Chief of Staff to the Shadow Justice Secretary. The views are personal to the author.

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