Judges and politicians

Rosina Dyke (UCL Student Human Rights Programme): This panel considered the boundary between the state and the individual, emphasising early on that it should be for citizens to define the limits of their state.

Historian Juliet Gardiner gave a run-down of the history of the idea of constitutionalism and liberties throughout the centuries, which stretched from the idea of ‘free-born Englishmen’ to the problems posed by the modern US Constitution. She concluded that a new form of constitutionalism must emerge; one which returns to a fundamental belief in and commitment to the sovereignty of the people.

The continued erosion of our liberty over the last sixty years was highlighted by Keith Ewing, who lamented the failure to create a ‘culture of liberty’, as envisaged by the Human Rights Act. He recited a litany of rights-restricting legislation and challenges to the concept of liberty in recent years, including police complicity in rendition, the construction of a DNA database without Parliament’s approval, and a five hundred percent increase in phone tapping since 1988. Ewing attacked the legacy of New Labour governments as being worse than the legacy of the Thatcher and Major administrations, and described the condition of liberty in today’s Britain as ‘more fragile’ than before the Human Rights Act.  Ewing did not propose, however, that judges and courts are the most suitable mechanisms for the restraint of government.  He described judges as ‘snipers’ with the ability to criticise Parliament’s lack of restraint in individual cases, but concluded that the courts acting alone are not able to address the problems of misuse of government power in a sufficiently global fashion.

According to Ewing, the most effective way to ensure government restraint in the exercise of its power is through the government system; with a strong and representative Parliament willing to use its legal powers against government. He described preventative not reactive strategies as the key, with more political control over political decisions.

The question of whether liberties in the United Kingdom would be better protected by a written constitution was an interesting and divisive one. Keith Ewing described such a mechanism as a ‘limitation on the sovereignty of the people’ which would delegate the issue of human rights to judges and lessen the extent that people have ownership of their rights. John Jackson endorsed the idea of a written constitution as a ‘democratically created constitutional settlement that limits both the powers of Parliament and Government’, and regulates fairly the relations between citizen and state. Lord Bingham gave a measured response, reminding the audience that the price of an entrenched constitution would be to give more power to the unelected judiciary.

In his speech, former Attorney-General Lord Goldsmith examined specifically the relationship between judges and politicians. He described a general attitude of respect between the two offices, and gave the opinion that judicial restraint needs to be exercised, especially when interpreting the Human Rights Act which puts judges in an ambiguous position as regards policy decisions. Lord Goldsmith spoke of the need to strengthen such principles as freedom, liberty and justice and practice them actively. He called for Cabinet and Parliament to work together more closely and only institute change where it is truly necessary and proportionate, with the recognition that liberties are not an obstacle to security, but a way of achieving it.

 Sir Geoffrey Bindman expressed the problem of erosion of civil liberties as being due to citizens’ lack of knowledge and education on their basic freedoms. He pinpointed the failure to provide an education campaign to explain the Human Rights Act to the public as a government failure to foster the kind of ‘human rights culture’ referred to by Ewing. He described judges as the ‘guardians’ of human rights, but recognised that there is a limit to what they can do on a case by case basis. However, Bindman’s main cause for concern seemed to be the issue of inequality of access to the law, and the sharp decline in the availability of legal aid since the eighties. He decried the affluence of the legal commercial sector which has made it so easy to ignore the problem of legal aid in recent years.

In an inspiring speech, Lord Bingham examined the idea of British values and the decline of the personal liberty which once ‘flourished’ in the UK. He described the erosion of these ‘homegrown’ rights as being due to two catalysts: technological advance and the idea of ‘security’ above all. He emphasised the need to strictly define, regulate and monitor the exercise of powers of surveillance facilitated by advances in technology, and to recognise that security concerns do not ‘trump’ other considerations in all circumstances. However, Lord Bingham remained quietly optimistic about the possibility of counteracting this erosion of liberty. He spoke of the responsibility of the media and Parliament to protect our civil liberties and be a ‘watchdog’ over wrongful exercise of ministerial power. He opined that the role of the Commons needs to be that of ‘a bastion of our freedoms’, in a system where a government with a large majority can legislate without significant restraint.

 Questions from the floor ranged from the rights and wrongs of the Iraq war, human rights and citizenship and government’s ‘democratic deficit’. The range of questions and the evident interest in discussing such matters seemed to make Lord Bingham’s opinion ring true that in the forthcoming elections, these issues of liberty will be ‘the biggest questions’. 

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