Lecture 9 Politics and the Judiciary

1. Lecture 9Politics and the Judiciary Dr Tom Quinn GV204 – The New British Politics 2 December 2008

2. Outline • Aim of lecture: To assess whether the judiciary has been increasing its power in the British political system • Traditional view of the courts’ role • Rise of judicial activism • European Union law • ECHR and Human Rights Act • Balance between liberty and security

3. Rule of Law All power subject to rules No officials above the law 2 sources of UK law Statute & Common Law Traditionally courts not involved in politics No constitutional court Administrative judicial review (cf. USA) No Bill of Rights for UK courts to enforce Courts constrained by parliamentary sovereignty ‘The principle of parliamentary sovereignty means nothing more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.’ (Dicey) The Courts and the UK Political System

4. Role of the UK Judiciary • Creating common law • Legal precedents accumulated over time • Necessary because statute law often vague/incomplete • Interpreting criminal law • Set down in statutes • Concerns public/moral wrong-doing • Offenders punished by the state • Interpreting civil law • Concerns relationship between individuals/organisations • E.g. contracts • Interpreting public law • Concerns relationship between state & individuals, and between different parts of the state

5. HOUSE OF LORDS* (12 Law Lords) COURT OF APPEAL Criminal Division Civil Division THE HIGH COURT Queen’s Bench Division Family Division Chancery Division County Courts Crown Court Magistrates’ Courts Judicial Institutions in England & Wales * Note: From Oct 2009, the House of Lords’ judicial functions transfer to the new Supreme Court of the United Kingdom Main forms of appeal Some forms of appeal

6. EC/EU Law and UK Law (1) • EU law covers EU’s policy competencies • EC law initially covered member states’ relations with each other & EC institutions • 1963 – EC citizens’ rights enforceable in national courts • Principle of ‘direct effect’ • What if citizens’ rights under EC/EU law conflict with national laws? • ECJ – European law is always superior! • Every national court can enforce EC/EU law • ECJ does not ‘strike down’ national laws • Delivers ‘preliminary rulings’ to national courts on request – clarify EC/EU law & guide national courts’ decisions

7. EC/EU Law and UK Law (2) • UK courts – interpret UK law in line with EC/EU law as much as possible • Factortame Case: • ECJ: National courts must ‘set aside’ laws violating EC law • Subsequent House of Lords ruling: • EU law superior to UK law • Downgrading of ‘implied repeal’ (doctrine that if 2 Acts of Parliament in conflict, most recent one takes precedence) • Why? Lords held that European Communities Act 1972 trumps later UK legislation • Thus, it seems Parliament can bind its successors (with European Communities Act 1972) – undermines Dicey

8. Rise of ‘Judicial Activism’ in Britain • Judicial activism – courts active in policy-making? • EU integration – empowered national courts • Agents of the ECJ • European integration shifted power within member states from executives and legislatures to courts • More judicial activism in non-EU areas too • Check on powerful executive in 80s/90s • Huge rise in applications for judicial review: • 500 in 1980 • 1,000 in 1985 • 1,500 in 1987 • 2,000 in 1990 • 4,200 in 2004 • Especially pronounced in cases of individual rights

9. Judicial Review in the UK • Illegality • Doctrine of ultra vires (‘beyond powers’) • Did ministers/public bodies exceed powers set out in enabling statutes? • Procedural impropriety • Have procedures been followed correctly? • Unbiased & fair hearing • Irrationality • Is a decision ‘unreasonable’? • Rarely used as ground for appeal • Proportionality • Was a decision disproportionate? End achievable with less draconian means? • Responsible for major growth in judicial review

10. Individual Rights & the UK Constitution • Majoritarian democracy: executive > courts • What has protected British people from executive tyranny? • Party competition • Public opinion • But long periods of single party rule… • … and public opinion often illiberal

11. The European Convention on Human Rights (ECHR) • 1948 – UN Universal Declaration of Human Rights • 1949 – Council of Europe drafted ECHR • IMPORTANT: Council of Europe NOT part of EU • Cases to be brought before European Court of Human Rights (ECtHR) in Strasbourg • UK ratified in 1950 • Not incorporated into UK law (unlike elsewhere) • Individual UK citizens could petition court only from 1966

12. Right to life Prohibition of torture Prohibition of slavery & forced labour Right to liberty & security Right to a fair trial No punishment without law Right to respect for private & family life Freedom of thought, conscience & religion Freedom of assembly & association Right to marry Prohibition of discrimination Convention Rights

13. UK – poor record – 50 defeats to 1997... … but good record of changing legislation after Court defeats Road to Strasbourg – expensive, time-consuming UK – negative liberty But new executive dominance Left – traditionally opposed to judiciary but changed in 1990s Some UK Defeats Illegal phone taps Immigration rules Rights of prisoners Homosexuals in armed forces Union closed shop Corporal punishment Anti-terrorism UK and the ECHR

14. Human Rights Act 1998 (1) • HRA incorporates ECHR into UK law • ‘Bringing rights home’ • Gives individuals rights enforceable in UK courts • ‘Constitutional’ legislation • But no special provisions for change • All legislation requires minister to confirm compatibility with ECHR rights • Public bodies – actions and regulations must comply with ECHR

15. Human Rights Act 1998 (2) • Courts must interpret laws in line with ECHR • If not possible, higher courts can issue ‘declaration of incompatibility’ • Up to parliament to change law – possibility of fast-track changes • Courts cannot strike down primary legislation • Thus, parliamentary sovereignty retained...

16. Criticisms & Observations • Unnecessary & divisive – discredits human rights • HRA will produce ‘a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers’ (Lord McCluskey) • ‘Positive’ liberty incompatible with parliamentary sovereignty? • Rights already existed – but people had to go to Strasbourg • Unelected judges – bigger role in policy-making • British constitution was flexible but HRA involves constitutional entrenchment

17. UK Courts & Anti-terrorism Legislation • Post-9/11 – debate over balance between civil liberties and security • Threat of terrorism, but also asylum-seekers • Major conflict between Labour Govt & courts • Anti-terrorism, Crime & Security Act 2001 • Detain foreigners suspected of links to terrorism • Too dangerous to be free, but unable to deport • 9 detainees appealed – Law Lords ruled the powers violated HRA & issued declaration of incompatibility • New policy of ‘control orders’ instituted… • … but weaknesses apparent

18. Conclusion • What is the role of the courts in a liberal democracy? • Has the Human Rights Act prevented the elected Govt from protecting citizens? • Is the major threat to civil liberties from the state or from terrorists? • To what extent can judicial activism be justified in the British political system?