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From Times Online

July 20, 2004

The Politicisation of the Judiciary

By Alasdair Palmer

Judges vs Government

On February 19, 2003, Mr Justice Collins ruled that part of the Government's Asylum and Immigration Act violated human rights and therefore should not stand. The offending portion of the Act was the one which the Home Secretary thought was its most important provision: the section which deprived immigrants who arrived illegally in Britain without claiming asylum at the earliest possible opportunity of the right to state benefits. Giving judgment in an action brought by some asylum-seekers who had been denied benefits under the new law, Mr Justice Collins said that the immigrants had been subjected to "inhuman or degrading treatment" - a violation of Article 3 of the European Convention on Human Rights. The judge decided that the Government was required to pay benefits to the very people which its legislation specifically said they were not entitled.

The Home Secretary was furious. "I am fed up," David Blunkett told the BBC later the same day, "with having to deal with a situation where Parliament debates issues and the judges overturn them." Lodging an immediate appeal against the ruling, he added that "Parliament did debate this, we were aware of the circumstances, we did mean what we said, and, on behalf of the British people, we are going to implement it." The clash between the Home Secretary and the judge was reported the next day in predictably stark terms. The Daily Mail devoted its front page to the "devastating verdict which denies elected ministers the right to govern". A front page editorial commented that "Britain's unaccountable and unelected judges are openly, and with increasing arrogance and perversity, usurping the role of Parliament, setting the wishes of the people at nought and pursuing a liberal, politically correct agenda of their own, in their zeal to interpret European legislation."

The Daily Mail's language was hysterical. All the same, it gave expression to an increasingly common fear that the judiciary is becoming politicised. For it is not only on the issue of the entitlement of a particular group of asylum-seekers to state benefits that decisions by the judiciary have thwarted Government policies. Human rights have been used by the judiciary to force the Government to accept the judges' views on (among other things) the correct policy for sentencing for murderers; the procedure to be followed in rape trials; and the allocation of educational resources. Judges, it is alleged, are rapidly ceasing to be the neutral arbiters in disputes, the unbiased interpreters of the meaning of Parliamentary statutes; instead, they are becoming increasingly willing and eager to overturn Parliamentary legislation in the service of a political ideology - a conception of the primacy of a particular view of human rights.

The nature of the dispute

The dispute between government and judiciary is not one about the value of fundamental human rights. No one is against human rights: even the world's most murderous and tyrannical dictators have signed documents declaring an immutable commitment to them. Although, of course, many of those who have declared their support for universal human rights are patently hypocritical, it is not necessary to be insincere in your commitment to the idea of human rights to have doubts about the value of some of the rights which have been elaborated by judges as they have extended and developed the constitutional documents which outline them. For example. the European Court has ruled that Article 6.1 of the European Convention, which states that "in the determination of his civil rights and obligations, everyone is entitled to a hearing by a tribunal", has the consequence that there is a human right to compensation from public authorities regardless of the public policy grounds for not allowing it.1 That the harmless-sounding "right to a tribunal" can be used by judges to overturn the elected government's decision on whether and for what the state should pay compensation seems to be an alarming indication of the extent to which judges can manufacture new and unfamiliar rights out of an obvious and uncontroversial one.

Judges are adept at finding ways to extend the range and number of fundamental human rights. In its ruling in the case of Roe v Wade, for example, the American Supreme Court famously – or notoriously, depending on your point of view - extended what had been thought to be a very limited right to privacy in order to justify a right to abortion, and an absolute prohibition on any state legislature enacting laws which criminalised it. Again, the Supreme Court of India has recently uncovered a right to have the environment protected lurking underneath, or perhaps alongside, the right to life. In fact, it is difficult to think of any area of political decision-making which is immune from being thought to clash with some judicially-enhanced definition of fundamental human rights. Everything turns, therefore, not on the validity of the abstract notion of human rights, which is uncontentious because its content is indeterminate, but on the particular form which those rights take. In their role as the final arbiters of what the law requires, judges have traditionally had the power to determine that issue - a power reinforced by the Human Rights Act, which incorporated the European Convention on Human Rights into English law.

That Act explicitly gives judges the power to determine what, exactly, are the rights which that Convention bestows. It also requires judges to declare whether legislation passed by an elected Government is, or is not, consistent with those rights. It is that power which has generated the fear that judges can, while professing merely to defend the basic rights of citizens 2, impose their own conception of what kind of policies are morally desirable. The threat is that they will use their power to thwart the wishes of the people's elected representatives - and so undermine democracy itself. This is not a threat which Mr Blunkett has been slow to notice. Judges are, as he has often said, "unelected, unaccountable and unrepresentative". In an interview with The Daily Telegraph two days after Mr Justice Collins' judgment, the Home Secretary insisted that "If public policy can always be over-ridden by individual challenge through thecourts, then democracy itself is under threat."

The judges, of course, insist that Mr Blunkett is merely expressing the familiar frustration of a politician who finds his power limited by the rights of the citizens. It is a truism that once in office, politicians suddenly discover the advantages of ignoring those rights. It is also a truism that one of the duties of an independent judiciary is to ensure that the rights of the citizen against state power are protected. The judges who have so irritated Mr Blunkett and other ministers (and who have produced such vitriolic comments from many newspapers) are convinced that all they are doing is fulfilling that duty.

When Mr Justice Collins' judgment overturning his policy on asylum-seekers was upheld by the Appeal Court, the Home Secretary, at least in public, struck an emollient tone. He said he would not take the judgment to the House of Lords. He claimed that the Court of Appeal had upheld the principle that he was entitled to refuse benefits to those migrants who did not claim asylum at the first available opportunity. The court had only rejected the way that principle had been implemented in practice, he said. In private, however, Home Office officials wondered if that distinction could be sustained. They gloomily suggested that, whatever the judges had said about the Home Secretary's entitlement in principle to introduce a law which withdraws benefits from one class of asylum-seekers, they in fact made it impossible to implement any version of that principle in an effective manner. They insisted that it was another case of "rule by judges".

The Historical Context

The recent debate on the role of the judiciary has focused on the additional powers they have gained since the passing of the Human Rights Act (HRA) in October 2000. Conflicts between the judiciary and the elected government of the day, however, pre-date the coming into force of that Act. Indeed, the extent to which they do so is striking. The two issues that have led to the most frequent conflicts between the Labour Government and the judiciary since the passing of the HRA - sentencing policy and asylum law - were exactly the two issues which caused the most frequent conflicts between the Conservative Government and the judiciary in the five years prior to it.

Judges vs politicians (1): Sentencing

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