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26 February 2013
When matters of public policy collide with matters of common law the judiciary is usually in the eye of storm.
Yesterday’s decision by the European Court of Human Rights (ECHR) to reject the Government’s attempt to escape it obligations on prisoner votes encapsulates this. On the one hand there’s the Government, which is desperate to appear hard on crime and impervious to EU influence. On the other there’s the judiciary, attempting to uphold the law.
The mainstream media has honed in on the prison votes dispute and is using it as another stick with which to beat the Human Rights Act and the European Convention of Human Rights.
To give yet further credence to the argument that the act is fundamentally flawed, commentators have also focused heavily on the right to privacy versus right to freedom of expression. Despite evidence to the contrary, some sectors of the press would have us believe that celebrities are escaping justice by stopping newspapers printing stories about their private lives. This is a theme blogs such as Inforrm have highlighted.
The gap between the judiciary and the legislature is widening and, while this may be seen as a positive drift in some quarters, it won’t make for a productive parliament in the long term.
Trying to bridge the gap is the Master of the Rolls, Lord Neuberger, a judge who has become known for his ability to speak candidly about the role of the judiciary in modern society.
Delving back into the realms of history, Neuberger MR says the constant tussle between parliament and the judiciary dates back hundreds of years. It has only become fashionable again, he says, because of press claims of judicial supremacy over government, which were given weight by Lord Hoffman’s comments on the Strausbourg court. The former law lord, who is now a member of Brick Court Chambers, has long been a critic of the ECHR. Back in 2009 he accused it of “laying down a federal law of Europe”. He was back on the soap box in February when he wrote the foreword to a Policy Exchange report, stating that the ECHR had “taken upon itself an extraordinary power to micromanage the legal systems of the member states”.
Yet Neuberger MR argues that the tension between parliament and the judiciary has been spawned by a shared goal.
He says: “Parliament doesn’t want the judges to have the power to overrule its statutes and the judges, at least in the main, neither want nor claim such a power.”
The constitution may have been reformed and reframed over the last two decades but, he adds, “the idea that parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong”.
The debate is confused by the existence of the ECHR and the European Convention on Human Rights, but, argues Neuberger MR, even that “goes nowhere near to imposing a limit on parliamentary legal sovereignty”.
Political backbiting about judicial matters can be advantageous to parliamentarians. As Neberger MR highlights: “It’s the MPs who are the democratically elected
representatives of the people, and the judges are unelected.
“But parliament no doubt appreciates that the unelected judges sometimes are more easily able to do what’s right, but temporarily unpopular, than politicians who need to submit themselves at least every five years to the electorate.”
On matters such as prisoner votes Neuerger MR’s assertion is correct.
As the coalition attempts to push through more reforms and more judicial reviews, the relationship between the two will no doubt become more fraught.